Ahistorical history on the run: Section 44(i) of the Australian Constitution

Recently there has been a lot of media hyperventilating about federal parliamentarians needing to check their citizenship status and declare they are purely Australian, without any taint of dual-citizenship.[i]  As usual, little of the pitchfork commentary is informed by history.

When the Australian constitution was drafted in the 1890s, allegiance was given to the Crown, not to a territory.  We all shared the status of British subjects, and a person born in Australia could be elected to parliament in Britain, New Zealand, Canada and other places, and vice-versa.  There was no need for renunciations or denunciations of allegiance.  Canadian-born Labor MP King O’Malley, for example, Minister for Home Affairs, a founder of the Commonwealth Bank and of Canberra among other things, could be a member of the federal parliament because he was a British subject, and therefore not the liege of a ‘foreign power’ in breach of Section 44.  There are numerous examples.

A lost world, bigger but now foreignised and forgotten.

Our world was so much bigger then.  Once upon a time, a person born in Australia could work, travel, study and live anywhere the Queen reigned.  Now we are confined to the continental high water mark.  The post-World War Two nationalist victories that are celebrated in orthodox Australian history books now seem like one big own-goal, and we clearly are not living happily ever after.

Certificate of Naturalisation, as used 1955-1970

Post-war nationalism began with the dominions adopting citizenship acts – Canada in 1946, Australia in 1948 and so on.  However, dominion citizens also remained British subjects.  But, that dual-world soon began to shrink.  Australia’s Department of External Affairs changed to Foreign Affairs in 1970.  Britain abandoned the Commonwealth for Europe in 1973.  Australia removed Australian citizens’ British Subject status in 1984.  The High Court ruled in 1999 that Britain (and all other countries) had become ‘foreign powers’ so a dual citizen became, under Section 44, subject to a foreign power.  For this ‘judicial-nationalism’, Section 44 was in interesting divertissement for years.[ii]  Indignant talk of vestigial, archaic, unjust, obscure and antiquated law buttressed the arguments of political nationalists and continued to underpin our shrinking horizons into the early 21^st century.

The external becomes weirdly foreign: Canberra Times, 7 November 1970: 1.  Mr McMahon was born in Australia, and so never had to deal with being cast as a ‘foreigner’.  He later became 20th prime minister, following six former PMs born elsewhere in the Empire or Commonwealth and one in a ‘foreign’ country.

Media commentators have blithely advised “just amend s44 by referendum” so that dual-citizens are eligible to be federal parliamentarians.[iii]  It would just be an easy tidying-up.  They appear unaware that we’ve been living through an extended period of foreignising anyone and anything ‘not like us’ (whatever that is).

The chronology continues.  Through the 1990s republican nationalists cast the Queen as an indulgent foreign overlord, in the 2000s Little Australia nationalists cast boat people as invading foreigners, and in the 2010s the list has just gotten fatter and longer.  Foreigners are everywhere, infesting the homeland and now we have a Home Office to root them out and expel them from our pure heart land.  This week the bourgeois nationalists at Fairfax have resurrected the 1990s Queen-as-foreigner motif[iv], while the boofhead nationalists indulged in ugly schadenfreude at the number of federal MPs having to check their nationality.[v]  Today, King O’Malley would either be barred at the gates, locked-up on an (ironically) foreign island or chucked out.

(left to right) The Governor General Lord Denman, Prime Minister Andrew Fisher, Her Excellency Lady Denman and Minister for Home Affairs King O’Malley, at the formal naming and foundation of Canberra. All were born overseas, but none were considered ‘foreigners’. Image, still from NFSA 9382

The only people who seem to have much historical awareness are some letter writers and online commenters, who make the same point as I have in my second paragraph.  Some of them have questioned how New Zealand, Canada or Britain can really be ‘foreign’ cultures to us, ideas that likely smack of subversion for today’s authoritarian nationalists.  Their arguments echo those of CANZUK for creating new ties between Canada, Australia, New Zealand and the United Kingdom.[vi]  Technology now triumphs geography.  But should they be careful?  The new Home Office may already have spots reserved for them in Nauru and Manus.

The Crossroads, Kingston, Norfolk Island with former remote detention facilities in the background. Photo mrbbaskerville 7 June 2009

I think we are at a crossroads.  The old post-1945 nationalism of the Anglophone world is dead, or at least dying, along with its younger Neoliberal sibling.[vii]  It is a time to think differently as the Indo-Pacific returns to centre-stage.  A century ago, the whole British world had to re-invent itself amongst the residues of the Great War, and today, amidst more recent post-war residues spaces for another re-invention are opening.  New histories are needed for new futures.

To continue on as if nothing has changed invites a referendum to change Section 44 (just imagine, for a moment, the No case against ‘foreigners’ sitting in parliament), and more lofty legal interpretations of Section 44 that, effectively, maintain a stalemated nationalism.  Perhaps, instead of assuming Section 44 is the problem, we need to ask ourselves whether we have been so traduced by nationalist-induced fear of the ‘foreign’ that we are forgetting our own histories and foreignising our own past?  How else to explain a centralising, militaristic, authoritarian Home Office?

An old tradition of antipathy to militarised over-reach in British and British-descended cultures – now reduced to a forgotten/foreignised/museumised history in Australia? ‘The Common wealth ruleing with a standing Army‘, Frontispiece to Thomas May’s “Arbitrary Government Display’d, in the tyrannick usurpation of the Rump Parliament”, 1683, British Museum collections

Parliament could define the phrase ‘foreign power’, for Section 44 purposes, to exclude Commonwealth countries.  As well as honouring the original intent, it will also recognise our long, complex and continuing history of multi-generational migration between Commonwealth countries. Most of the reported ‘problems’ of dual-citizenship are intra-Commonwealth, suggesting a foreclosing amnesia about the larger world we once inhabited.[viii]

Perhaps that small change might even lead to reducing vitriol directed at people and things ‘not like us’, now fashionably tarred in high offices and the media as pejoratively ‘foreign’?  If not, I fear the day when all but those with a one hundred percent First Fleet ancestry will be denounced as foreign – and even they will be suspect.

Who, if any, are the ‘foreigners’?  Queen Elizabeth II with the Commonwealth’s women prime ministers: from Bangladesh, Sheikh Hasina (left), from Australia, Julia Gillard (second right) and from Trinidad & Tobago, Kamla Persad-Bissessar, during the opening of 2011 CHOGM in Perth, 28 October 2011. Photo credit: John Stillwell/PA Wire

[i] Rosie Lewis, ‘MPs rush to confirm true-blue credentials’, The Australian, 19 July 2017; Tom Minear, ‘Greens Party loses another politician … Greens Senator Ludlum exposed as a Kiwi’, Daily Telegraph, 19 July 2017; Lorraine Finlay, ‘Greens resignations show a need to change dual citizenship requirements’, The Conversation, 19 July 2017; Alle McMahon, ‘Australian politicians born overseas jump to clarify citizenship’, ABC News online, 19 July 2017

[ii] John Kalokerinos, Who May Sit?: An examination of the parliamentary disqualification provisions of the Commonwealth Constitution, Faculty of Law, ANU 2000, https://www.aph.gov.au/binaries/senate/pubs/pops/pop36/kalokerinos.pdf , accessed 20 July 2017

[iii] Prof George Williams, quoted in Amy Remeikis, ‘MPs scramble to confirm citizenship’, Sydney Morning Herald, 20 July 2017: 6; William Bowe, ‘Section 44 is a sticky wicket in need of reform’, Crikey, 19 July 2017; for a somewhat more nuanced article see Adam Gartrell, ‘Allegiance rule is a relic but we’re stuck with it’, Sydney Morning Herald, 19 July 2017: 5;

[iv] Cathy Wilcox, untitled cartoon, Sydney Morning Herald, 20 July 2017: 17

[v] Derryn Hinch, ‘I am not in allegiance to a foreign power and I have proof’, Crikey, 19 July 2017

[vi] CANZUK International, http://www.canzukinternational.com , accessed 20 July 2017

[vii] there are many examples to cite, just two recent being Ross Gittins, ‘History’s pendulum is changing course’, Sydney Morning Herald, 19 July 2017: 18-19, which quotes The Economist magazine “the neo-liberal consensus has collapsed”; Bernard Keane, ‘The surprisingly quick death of neoliberalism in Australia is underway’, Crikey, 21 June 2017

[viii] Of the 222 federal parliamentarians in March 2017, 18 (8%) were born in a Commonwealth country and 6 (0.4%) were born in a ‘foreign’ country: http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Parliamentary_Handbook/mpsbyplc , accessed 21 July 2017