Hey true blue, is it me and you? Citizenship and the Constitution.

[Ratts of Tobruk]

Does anyone want to explain why the High Court decided nominating is the key time when the literal black-letter wording of S44 is:

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.

Is not the point of "being chosen" the date of the election? Not the date of nomination?

What's more, given previous ruling declared "Reasonable steps" to be enough, why did the High Court talk about the foreign country having to "render it impossible or not reasonably possible to renounce British citizenship" and to put in place "an irremediable impediment"? That sounds like it is not assessing things on the basis of reasonable expectations.

Not to mention that the fact Canavan could vote in Italy (and was able to renounce his Italian citizenship, even though lawyers argued he potentially may not have been one) would surely mean he was "entitled to the right or privileges of a subject or citizen of a foreign power"?

What legalese am I misunderstanding that renders the High Court decisions "black letter" as has been alleged?

 

[Pessimistic]

It’s a bit like the US constitutional right to bear arms. They go apeshit to defend the right but even the hardest line gun lobbyist does not think it’s a right to own and operate a thermonuclear armed drone

Reasonableness has to apply


But I keep asking the question, did the legislators fail when they established Australian citizenship?

 

[tandino]

Does anyone want to explain why the High Court decided nominating is the key time when the literal black-letter wording of S44 is:

Is not the point of "being chosen" the date of the election? Not the date of nomination?

Well we have to go back to our old friend Sykes v Cleary.

27. Reflection on these considerations persuades us that the words "shall be incapable of being chosen" refer to the process of being chosen, of which nomination is an essential part ((23) See Harford v. Linskey (1899) 1 QB 852, at p 858). That interpretation is supported by s.43 of the Constitution which provides:
"A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House." In that context, the words "shall be incapable of being chosen" must refer to the process of being chosen. It can scarcely have been intended that a member of Parliament could, while holding that office, stand for election for the other House of Parliament and, after the counting of the votes but before the declaration of the poll, resign the office which he or she then held, thereby ensuring his or her eligibility to be declared elected as a member of the other House.

What's more, given previous ruling declared "Reasonable steps" to be enough, why did the High Court talk about the foreign country having to "render it impossible or not reasonably possible to renounce British citizenship" and to put in place "an irremediable impediment"? That sounds like it is not assessing things on the basis of reasonable expectations.

All reasonable steps are required to be taken to discharge yourself of eligibility requirements under Section 44.

For countries that have clear processes in place to renounce citizenship, I don't think it's unreasonable requirement that these processes should be followed to their conclusion. The vast majority of MP's and Senators can wrap their heads around it.

 

[Frank Bunn]

Does anyone want to explain why the High Court decided nominating is the key time when the literal black-letter wording of S44 is:


Is not the point of "being chosen" the date of the election? Not the date of nomination?

What's more, given previous ruling declared "Reasonable steps" to be enough, why did the High Court talk about the foreign country having to "render it impossible or not reasonably possible to renounce British citizenship" and to put in place "an irremediable impediment"? That sounds like it is not assessing things on the basis of reasonable expectations.

Not to mention that the fact Canavan could vote in Italy (and was able to renounce his Italian citizenship, even though lawyers argued he potentially may not have been one) would surely mean he was "entitled to the right or privileges of a subject or citizen of a foreign power"?

What legalese am I misunderstanding that renders the High Court decisions "black letter" as has been alleged?

The issue of whether "being chosen" means the date of the election or date of nomination wasn't the black letter part. They relied on Sykes v Cleary for that, where the majority ruled that "being chosen" meant the date of nomination - because an election is a process which commences with the nomination of candidates and finishes when the result of an election is declared. They could have got black letter about the word "shall" ie future tense, referring to the period in which a citizen is actually a senator or a member of the House of Representatives. But they didn't.

The black letter part was when they discussed whether 44(i) has two limbs, not three.

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.

There is evident force in the submission of the amicus that s 44(i) consists of only two limbs: the verb "is" is used in s 44(i) only twice, and there is a comma followed by the disjunctive "or" at the end of the first limb but not within the second limb.​

 

[Pessimistic]

Even the ‘foreign power’ is crap. Isn’t there provision in the constitution alluding to NZ not being a foreign power.
Citizens having pretty much automatic right to access the other country almost as if they are a citizen

 

[Ratts of Tobruk]

Well we have to go back to our old friend Sykes v Cleary.




All reasonable steps are required to be taken to discharge yourself of eligibility requirements under Section 44.

For countries that have clear processes in place to renounce citizenship, I don't think it's unreasonable requirement that these processes should be followed to their conclusion. The vast majority of MP's and Senators can wrap their heads around it.

I'm sure I'm meant to pause before thinking High Court judges are wrong, but at least in that quote it seems odd that they would think there is a major issue with someone wanting to switch houses without jeapordising their current seat. A rule saying you can't run for two seats at once would seem to make more sense if that was the major concern. As stated by sorted, this aspect of the ruling appears to be far from "black letter".

There is an obvious issue with someone running when they aren't elligible, given people would be misled and votes for those ineligible people would be wasted. But that means having a deadline on the last date of nomination, not the first date. Before that date, nominations can change. If someone has taken the correct steps to renounce then they have clearly taken the reasonable steps. There is nothing unreasonable in following a correct process. Which they did. They have renounced. The renouncements were accepted. Taking "all" reasonable steps is only necessary if the main process fails for some reason, or if you have multiple aspects that need to be renounced. You cannot do "all" steps, after all, if you were already successful with the main process. So a "black letter" reading of "all" should not literally mean "all". Of course, if the foreign state doesn't allow them to renounce, we say it can't be helped and legally allow it to slide; they become eligible. "All reasonable steps" still has "reasonable" in there. There was nothing unreasonable in Gallagher's approach. For Lamb, on the other hand, you could say she had not taken all reasonable steps, because her process failed.

Labor's vetting worked (the LNP failed - hence Joyce not knowing he was a NZer). Labor people renounced. Lamb's application failed, but that doesn't mean Labor's vetting failed (nor did Shorten give a "rolled gold" guarantee - yet more LNP spin). I'm not seeing where the problem was with the Labor people, other than Lamb, taking correct, reasonable steps, which were successful, prior to the last day of nomination?

Being beholden to the speed of a foreign country's bureaucracy does seem to be a case of allowing a foreign country to decide if someone could run. What's to stop a few Labour voters in England 'accidentally' delaying paperwork for an Australian LNP candidate, if they suspect an election is about to be called? It goes against the constitutional imperative. I don't see any evidence online of there being a fast-track option that can be requested and paid for.

Because of the decision, we're simply going to have to have a referendum or we must accept that a lot of people won't even run for parliament, because why would they risk losing ease-of-travel on the off-chance they might win. This decision is a win for the majors.

The issue of whether "being chosen" means the date of the election or date of nomination wasn't the black letter part. They relied on Sykes v Cleary for that, where the majority ruled that "being chosen" meant the date of nomination - because an election is a process which commences with the nomination of candidates and finishes when the result of an election is declared. They could have got black letter about the word "shall" ie future tense, referring to the period in which a citizen is actually a senator or a member of the House of Representatives. But they didn't.

The black letter part was when they discussed whether 44(i) has two limbs, not three.

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.

There is evident force in the submission of the amicus that s 44(i) consists of only two limbs: the verb "is" is used in s 44(i) only twice, and there is a comma followed by the disjunctive "or" at the end of the first limb but not within the second limb.​

The explanation of the latter part lost me as to its significance. As immediately stated after what you quoted, there is no practical difference in treating them as two or three limbs as per what you quoted. I see no "black letter" interpretation controversy here. The "black letter" bit is treating "or" as meaning either of the first two limbs applies. Which it clearly does. The non-black letter bit is where the High Court isn't officious and looks to the constitutional imperative to ensure a foreign country can't stop an Australian from running for Parliament. Which is sensible law making. But as per my above statements to Tandino, I think they've accidentally created exactly that scenario by saying the renunciation must've been accepted. Governments/laws change regularly. I'm unconvinced.

The second limb appears to very clearly state having access to the same rights is enough to disqualify you, and that would mean all of the base rights. Given Italy apparently had Canavan down as having those rights, even though Government lawyers argued that they didn't know if he was technically a citizen; and given Canavan knew about it to the extent that they'd discussed it as a family and then it happened; his case appeared worse than Joyce's. It all seems pretty murky. Surely they aren't making decisions on "reasonableness" on the basis that we'd expect greater understanding of a system written in English?

Their ruling here is very much not "black letter". They state things like "on one view, Senator Canavan became an Italian citizen" and "there is a question as to whether registration is merely declaratory of the status of citizen or a condition of the grant of the status in the case of citizenship by descent". So they leave it ambiguous and no legal ruling on those statements is made. Maintaining their distance from the report on which they are quoting, they continue:

They observe that it is not known if "the investigation and controls" referred to in the circolare have been carried out. They state that the A.I.R.E. certificate issued by the Mayor of the Municipality of Lozzo di Cadore "should not per se be considered a recognition of Italian citizenship": under the circolare only the interested party, who must be of age, can apply for citizenship.

To me it sounds an awful lot like Canavan was a citizen, and he was only absolved on the basis of the Court's experts claiming that one interpretation of the "circolare" is that the individual has to apply. But that obviously wouldn't always be the case though, because children may have a parent do it for them. That seems to be exactly what happened here, and hence why the Italian consulate said Canavan was "eligible to vote" in Italian elections, and they accepted Canavan's "citizenship" renunciation, as per the court evidence.

 

[Pessimistic]

You can't have divided loyalties if the country doesn't even accept you as a citizen. That goes for Julia Banks and the other so-called Greeks as well.

I think I said before, knowing how beuocracies work in some cases it would be quicker to apply for a passport from that country and get refused. They are pretty quick to do that.

 

[tandino]

I'm sure I'm meant to pause before thinking High Court judges are wrong, but at least in that quote it seems odd that they would think there is a major issue with someone wanting to switch houses without jeapordising their current seat. A rule saying you can't run for two seats at once would seem to make more sense if that was the major concern. As stated by sorted, this aspect of the ruling appears to be far from "black letter".

There is an obvious issue with someone running when they aren't elligible, given people would be misled and votes for those ineligible people would be wasted. But that means having a deadline on the last date of nomination, not the first date. Before that date, nominations can change. If someone has taken the correct steps to renounce then they have clearly taken the reasonable steps. There is nothing unreasonable in following a correct process. Which they did. They have renounced. The renouncements were accepted. Taking "all" reasonable steps is only necessary if the main process fails for some reason, or if you have multiple aspects that need to be renounced. You cannot do "all" steps, after all, if you were already successful with the main process. So a "black letter" reading of "all" should not literally mean "all". Of course, if the foreign state doesn't allow them to renounce, we say it can't be helped and legally allow it to slide; they become eligible. "All reasonable steps" still has "reasonable" in there. There was nothing unreasonable in Gallagher's approach. For Lamb, on the other hand, you could say she had not taken all reasonable steps, because her process failed.

The deadline is the date in which the candidate nominates. I don't think it's an unreasonable burden to ask of candidates to ensure they are eligible for election when they nominate for election. Especially considering the fact that early voting commences a few days after the nominations close anyway.

The High Court said 20 years ago that if you hold dual citizenship on the date you nominate for election, all reasonable steps must have been taken to disavow yourself of that citizenship in order to remain eligible. What I say is that, yes, these candidates took steps, and No, they did not take all reasonable steps. They could have taken steps six months beforehand and had no issues at all.

Regardless of my opinion, that's what the High Court has ruled. We can have opinions on High Court rulings all day long, at the end of the day they set the laws of the land. Ultimately agree or disagree, but they are the laws and rules and standards because they said so.

Labor's vetting worked (the LNP failed - hence Joyce not knowing he was a NZer). Labor people renounced. Lamb's application failed, but that doesn't mean Labor's vetting failed (nor did Shorten give a "rolled gold" guarantee - yet more LNP spin). I'm not seeing where the problem was with the Labor people, other than Lamb, taking correct, reasonable steps, which were successful, prior to the last day of nomination?

Justine Keay was pre-selected over a year before the 2016 Election, but waited until the day after the election was called to start her renouncement process. Susan Lamb waited until two weeks before the close of nominations to get her paperwork in order. People who should be the best experts in the land came up with this process.

Even if we forgive them on that, Katy Gallagher sat in the Senate for almost a year before she started her renouncement process. You can't blame some High Court decision on that one.

Being beholden to the speed of a foreign country's bureaucracy does seem to be a case of allowing a foreign country to decide if someone could run. What's to stop a few Labour voters in England 'accidentally' delaying paperwork for an Australian LNP candidate, if they suspect an election is about to be called? It goes against the constitutional imperative. I don't see any evidence online of there being a fast-track option that can be requested and paid for.

Because of the decision, we're simply going to have to have a referendum or we must accept that a lot of people won't even run for parliament, because why would they risk losing ease-of-travel on the off-chance they might win. This decision is a win for the majors.

I am in total agreement that Section 44 should be amended. The way I see it, it is a matter of the voters who they send to Canberra, making prospective candidates ineligible is something I am wary about. Lets have a referendum.

 

[Ratts of Tobruk]

The deadline is the date in which the candidate nominates. I don't think it's an unreasonable burden to ask of candidates to ensure they are eligible for election when they nominate for election. Especially considering the fact that early voting commences a few days after the nominations close anyway.

The High Court said 20 years ago that if you hold dual citizenship on the date you nominate for election, all reasonable steps must have been taken to disavow yourself of that citizenship in order to remain eligible.

It is sensible to consider the official day when nominations are finalised to be "The day you nominate". The situation may change all the way up until the deadline. e.g. An illness or controversy may hit and a party might decide to use someone else. So making "the day you nominate" to be the date it is finalised makes sense for efficiency and for giving people time to get their eligibility in order. Surely the whole point of having an extended period when people can nominate is so that the lay of the land can be assessed and decisions made off the basis of it? So it is the final scenario that is important.

If they did not make the decision they made, we would not need a referendum. People would just need to properly vet themselves or their candidates, as Labor did. The process was working pretty fine and didn't need changing.

Regardless of my opinion, that's what the High Court has ruled. We can have opinions on High Court rulings all day long, at the end of the day they set the laws of the land. Ultimately agree or disagree, but they are the laws and rules and standards because they said so.

Hence why it's mighty concerning when they make inconsistent decisions or appear to make them without asking for detailed expert opinion.

 

[tandino]

It is sensible to consider the official day when nominations are finalised to be "The day you nominate". The situation may change all the way up until the deadline. e.g. An illness or controversy may hit and a party might decide to use someone else. So making "the day you nominate" to be the date it is finalised makes sense for efficiency and for giving people time to get their eligibility in order. Surely the whole point of having an extended period when people can nominate is so that the lay of the land can be assessed and decisions made off the basis of it? So it is the final scenario that is important.

You can't even nominate without asserting that you are eligible under Section 44 anyway. It's on the nomination form in black and white, the issue takes up half the first page. https://www.aec.gov.au/Elections/candidates/files/60-60b-single-regofficer-sample.pdf

So the difference between the day you nominate and the end of nominations is meaningless in this situation. Candidates with knowledge of their questionable eligibility can't be candidates because they can't even sign the damn form to become a candidate.

If they did not make the decision they made, we would not need a referendum. People would just need to properly vet themselves or their candidates, as Labor did. The process was working pretty fine and didn't need changing.

Hence why it's mighty concerning when they make inconsistent decisions or appear to make them without asking for detailed expert opinion.

We know that Labor did not properly vet Katy Gallagher, because she was a fully fledged and paid up member of the Senate before she commenced her renouncement, surely at the least you can accept that.

I don't see where there is inconsistency in the High Court ruling. Where are the errors in the Gallagher matter?

 

[Ratts of Tobruk]

You can't even nominate without asserting that you are eligible under Section 44 anyway. It's on the nomination form in black and white, the issue takes up half the first page. https://www.aec.gov.au/Elections/candidates/files/60-60b-single-regofficer-sample.pdf

So the difference between the day you nominate and the end of nominations is meaningless in this situation. Candidates with knowledge of their questionable eligibility can't be candidates because they can't even sign the damn form to become a candidate.



We know that Labor did not properly vet Katy Gallagher, because she was a fully fledged and paid up member of the Senate before she commenced her renouncement, surely at the least you can accept that.

I don't see where there is inconsistency in the High Court ruling. Where are the errors in the Gallagher matter?

The discussion is above. If you don't "see" that, it's on you. There is plenty of room for the High Court to 'interpret', and their interpretations mean we will have to have a referendum if we are to remove the disadvantage this puts upon citizens and the advantage it gives to the major parties.

 

[NSWCROW]

Don't you just love it when things just work out for you......

 

[CakeEater]

Frydenberg has had a S.44 challenge in the Court of Disputed returns due to his Hungarian citizenship. Article in the Guardian today.

Michael Staindl, a constituent of Josh Frydenberg in Kooyong, has launched a section 44(1) case against the deputy Liberal leader and treasurer in the court of disputed returns. A spokesman for the court told Guardian Australia the petition was filed today, the last day for such applications. Staindl has confirmed the challenge, explaining that it queries whether Frydenberg has Hungarian citizenship by descent.

Thoughts?

 

[LeverPuller]

Frydenberg has had a S.44 challenge in the Court of Disputed returns due to his Hungarian citizenship. Article in the Guardian today.

Michael Staindl, a constituent of Josh Frydenberg in Kooyong, has launched a section 44(1) case against the deputy Liberal leader and treasurer in the court of disputed returns. A spokesman for the court told Guardian Australia the petition was filed today, the last day for such applications. Staindl has confirmed the challenge, explaining that it queries whether Frydenberg has Hungarian citizenship by descent.

Thoughts?

Pretty s**t act to be honest. His family were stateless because of the Holocaust and fled Europe at all.

 

[NSWCROW]

inb4 Mr Staindl cops a " Duncan Storrar " from the usual mutts

 

[Ice-Wolf]

Pretty s**t act to be honest. His family were stateless because of the Holocaust and fled Europe at all.

And the Hungarians retrospectively abolished the NAZI era laws upon the the fall of communism, granting citizenship to those that had it revoked (His Grand Parents) and those that weren't granted it because of the law (His mother).

Josh's problem is instead of celebrating this as a great moment of reconcilliation and sorting out his potential citizenship issue played the persecution and not to be questioned card instead, despite the fact that he would almost certainly be returned if he had to go to a by election over the issue.

 

[Underarm]

Didn't this come up as a potential problem in Prior to the election? Surely Frydenberg could have got this sorted early in the year?

 

[Ice-Wolf]

Didn't this come up as a potential problem in Prior to the election? Surely Frydenberg could have got this sorted early in the year?

His own arrogance wouldn't let him. He stamped his feet and said he was not to be questioned on the matter because it upset him mum.

 

[Gough]

Pretty s**t act to be honest. His family were stateless because of the Holocaust and fled Europe at all.

Constitution is the Constitution and it looks like the HC are taking a pretty literal interpretation of it too. He could be in the s***, serves him right.

 

[tandino]

His own arrogance wouldn't let him. He stamped his feet and said he was not to be questioned on the matter because it upset him mum.

The guy's family was chased out of Europe and their compatriats were butchered to death. You can forgive him a few hangups on his identity.

I suspect that he sorted all this out on the quiet before the election. But it will be interesting to get some more case law on this issue.

 

[Chief]

The guy's family was chased out of Europe and their compatriats were butchered to death. You can forgive him a few hangups on his identity.

I suspect that he sorted all this out on the quiet before the election. But it will be interesting to get some more case law on this issue.

To take a purely legalistic view, all a foreign country has to do to upset our apple cart is pass a law that all Australians elected to parliament are issued with citizenship of their country.

Bang - everyone's invalid!

 

[Ice-Wolf]

I suspect that he sorted all this out on the quiet before the election. But it will be interesting to get some more case law on this issue.

Thats where the arrogance came in.

 

[tandino]

Thats where the arrogance came in.

Not showing your papers on demand to every nutcase that walks in the door is arrogant?

 

[tandino]

To take a purely legalistic view, all a foreign country has to do to upset our apple cart is pass a law that all Australians elected to parliament are issued with citizenship of their country.

Bang - everyone's invalid!

Its not a stretch to imagine a situation where the UK ties up some loopholes in what constitutes their nationality and suddenly creates a whole heap of unwitting UK nationals overnight.

44 is well overdue for reform.

 

[Power Raid]

And the Hungarians retrospectively abolished the NAZI era laws upon the the fall of communism, granting citizenship to those that had it revoked (His Grand Parents) and those that weren't granted it because of the law (His mother).

Josh's problem is instead of celebrating this as a great moment of reconcilliation and sorting out his potential citizenship issue played the persecution and not to be questioned card instead, despite the fact that he would almost certainly be returned if he had to go to a by election over the issue.

?????????

A great act of reconciliation? You do know most of the Hungarians here in Oz aren't here because of WW2 but the escape from communism