Isn’t it funny how those who purport to be the most eminent often can’t see what’s right in front of their noses?
TMR breaks down the good bits of today’s High Court decision in the Citizenship Seven affair. Trust me when I say it’s an absolute treasure trove of entertainment… for everyone except George Brandis and those who were ultimately disqualified from Parliament.
Go and grab yourself a coffee or liquored beverage of your choice (it is Friday afternoon after all) and let’s get busy!
Firstly, this was TMR two weeks ago:
How about we have a look at what section 44 of the Constitution actually says:
44. Any person who –
(i.) Is under any acknowledgement 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 citizen of a foreign power…
…shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
If I could triple underline the word ‘is’ up there or shove it up Brandis’ nostrils (in the hope that it reaches his brain), then I would.
Dear George, awareness is not the issue here. It’s a matter of fact. If you have foreign citizenship, you are incapable of being a Federal Parliamentarian. Full stop. The status of a purported Federal parliamentarian who has foreign citizenship isn’t ‘voidable’, it’s void. Full stop. Or ‘void ab initio’ (void from the outset) if you want to get Latin about it.
There is no ambiguity here. As Yoda said: ‘Do or do not. There is no try’.
This was the High Court today:
At para 21:
The amicus submitted that s 44(i) has two limbs, not three as was suggested by Brennan J. He contended that the first limb disqualifies a person who “is under any acknowledgment” of the stated kind, and the second limb disqualifies a person who “is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power”. In the first limb, the words “under any acknowledgment” capture any “person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that acknowledgment”. Within this limb the word “acknowledgment” connotes an act involving an exercise of the will of the person concerned. In contrast, in the second limb of s 44(i), the words “subject”, “citizen” and “entitled to the rights” connote a state of affairs involving the existence of a status or of rights under the law of the foreign power.
[TMR 1, Brandis 0].
At para 37:
Whether a person has the status of a subject or a citizen of a foreign power necessarily depends upon the law of the foreign power. That is so because it is only the law of the foreign power that can be the source of the status of citizenship or of the rights and duties involved in that status.
At para 47:
Section 44(i) does not say that it operates only if the candidate knows of the disqualifying circumstance. It is a substantial departure from the ordinary and natural meaning of the text of the second limb to understand it as commencing:
“Any person who:
(i) … knows that he or she is a subject or a citizen …”
[TMR 2, Brandis 0].
At para 49:
The approach urged on behalf of the Attorney-General echoes that of Deane J in Sykes v Cleary.
At paras 52 and 53:
The approach taken by Deane J draws no support from the text and structure of s 44(i): indeed, Deane J used the first limb of the provision to alter the ordinary and natural meaning of the second. Not only does that approach alter the plain meaning of the second limb of s 44(i), it renders that limb otiose because, so understood, it adds nothing to the first limb in terms of the practical pursuit of the purpose of s 44(i).
[TMR 3, Brandis 0].
In addition, the approach of Deane J places naturalised Australian citizens in a position of disadvantage relative to natural-born Australian citizens. A majority in Sykes v Cleary did not countenance such a distinction.
[TMR: Are you reading this George? Try to think about this next time you want to build an entire case on a single judge’s obiter dictum].
At para 57:
It may be said that the variation on the principal submission of the Attorney-General, with its focus on voluntary acts, has the virtues of eschewing a distinction in principle between natural-born and naturalised Australians and of avoiding the conceptual difficulties associated with interrogating a candidate’s knowledge or state of mind. But ultimately the variation in the Attorney-General’s approach depends upon the unstable distinction between overt voluntary acts and conscious omissions. The application of the natural and ordinary meaning of s 44(i) serves to avoid the difficulties which attend this unstable distinction.
[TMR 4, Brandis 0].
[TMR: ‘Unstable’!!! Are you having fun yet George?].
At para 60:
Finally, while it may be said that it is harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question; the nomination form for candidates for both the Senate and the House of Representatives requires candidates to declare that they are not rendered ineligible by s 44.
[TMR 5, Brandis 0].
At paras 61 and 62:
Section 44(i) is not concerned with whether the candidate has been negligent in failing to comply with its requirements. Section 44(i) does not disqualify only those who have not made reasonable efforts to conform to its requirements. Section 44(i) is cast in peremptory terms. Where the personal circumstances of a would-be candidate give rise to disqualification under s 44(i), the reasonableness of steps taken by way of inquiry to ascertain whether those circumstances exist is immaterial to the operation of s 44(i).
The reasons of the majority in Sykes v Cleary do not support the proposition that a person who is a foreign citizen contravenes the second limb of s 44(i) only if that person actually knows that he or she is a foreign citizen and fails to take reasonable steps available to him or her to divest himself or herself of that status under the foreign law. Nor do the reasons of the majority in Sykes v Cleary support the view that a person who is a foreign citizen is not disqualified if, not knowing of that status, he or she fails to take steps to divest himself or herself of that status.
[TMR 6, Brandis 0].
And, in case there was any doubt, at paras 70-72:
Summary as to the proper construction of s 44(i)
The approaches to the construction of s 44(i) urged on behalf of the Attorney-General, Mr Joyce MP and Senator Nash, and Mr Ludlam and Ms Waters are rejected.
Section 44(i) operates to render “incapable of being chosen or of sitting” persons who have the status of subject or citizen of a foreign power. Whether a person has the status of foreign subject or citizen is determined by the law of the foreign power in question. Proof of a candidate’s knowledge of his or her foreign citizenship status (or of facts that might put a candidate on inquiry as to the possibility that he or she is a foreign citizen) is not necessary to bring about the disqualifying operation of s 44(i).
A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.
[TMR 7 (one for each Justice of the High Court), Brandis 0].
And that’s a wrap.
George Brandis ‘QC’: you are a bona fide dunce. You should not be our nation’s attorney-general anymore.