Don’t blame Malcolm, it’s all the High Court’s fault.
I know that some people say, ‘the law’s the law.’ We know that ‘ignorance of the law is no excuse’, but there has to be a limit. We have a small constitutional crisis and the High Court recently had a chance to correct the situation but all they could do was to prove that they could read.
Section 44 of the constitution says that one can’t stand for election if one is “is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power.” (my emphasis)
The learned judges, being able to read, have decided that anyone who, at the time of their election, could have shot off some application papers, birth certificates, photographs, certified copies of photo ID etc. and thereby gained for themselves a passport of another country, was not eligible for election and therefore is out.
A seven-year-old could do the same. The role of the judges is supposed to be to interpret the constitution in the light of time and changing circumstances. There’s no point in having them if all they do is repeat what is on the paper without any thought. The principle thing on their minds should be, “What need prompted and what did our founding fathers mean when they wrote those words, and what benefit to Australia derives from that meaning? Therefore, what meaning can we now put upon those words, consistent with the need and the benefit that Australia derives.”
The circumstances that led those who framed the constitution was a fear that foreign governments might urge their subjects to join the parliament and undermine Australia’s independence by acting as agents of influence within the halls of power.
Ironically, now, by the current interpretation, foreign governments are influencing election results by having laws that entitled people to citizenship, whether they sought it or not. This situation is clearly outside the intentions of the framers of the constitution. If the learned judges are to be believed, the purpose of section 44 is to create traps in the election process that can be deployed upon an unwitting MP or Senator by their political opponents. The judges obviously believe that the founding fathers were intent on mischief in order to create chaotic situations whereby governments could fall on the whim of a foreign power handing out citizenship willy-nilly.
If I had been a learned judge on that day I would have used the word entitled to effect. Entitled can have shades of meaning. It can mean something that is in prospect, i.e. not yet established or it can mean something that exists right now. For example, it is true to say that I am entitled to catch a plane to Perth as no one can stop me if that is my intention, but another shade of meaning is more strict. In fact I am actually not entitled to catch a plane to Perth, because I don’t have a ticket. Once I go to an agent or website and complete the application, and provided there is a spare seat, and I complete my booking, print off my e-ticket and go to the airport, then and only then, am I entitled to catch a plane to Perth.
The learned judges have chosen the first interpretation, i.e. that an entitlement includes something that is hidden and completely prospective, like someone being 415th in line for the throne being entitled to be King. They have really done us a disservice and shown what a bunch of fools they are.
If only the founding fathers had framed those words to ensure that politicians or parties could not accept, either directly or indirectly, financial benefits or campaign contributions from foreign powers! Then we would be addressing a real and present danger.