The current absurdities seem to primarily result from the following:
1. The absolute contempt with which Parliament and the people regard each other. It is generally accepted that almost any amendment to the Constitution proposed by Parliament will be rejected by the people. This is described as Australia having a very rigid Constitution, the language of which must therefore be interpreted creatively by the High Court to keep it up to date. In fact we have a Constitution that is very easy to amend. It just requires a simple majority at a referendum, not two-thirds or three-quarters or any other such difficulty. It also requires a simple majority in each of a simple majority of States, which could result in a proposal unpopular in smaller States being defeated despite a popular majority. This is intentional but unimportant as Australia is exceptionally homogenous. If it ever became a real problem it could be overcome by a “creation of peers” as with the British House of Lords, i.e the bigger States could temporarily divide themselves into multiple small States each with a larger population than Tasmania and then carry a change to that entrenched provision. But it has not been a problem. The frozen Constitution results from Parliament not proposing necessary changes, not from any rigidity.
2. Despite having such an easily amended Constitution, the Parliament has never put to the people anything the people would accept concerning Australia’s Constitutional relations with Britain. Instead various Parliaments (national, State and British) carried various “Australia Acts” none of which could amend the Constitution without consent of the people. The High Court has pretended that at some unknown date Britain, New Zealand and other dominions mentioned in the Constitution became “foreign”. The alternative would have established an absurdly anachronistic distinction between Australians of “British” origin and those “wogs” of other origins such as Greek, Italian etc.
3. But the distinctions they made are as nonsensical as those they avoided. Dual and multiple citizenships are a natural development of immigration, multiculturalism and globalism. Any provisions at all concerned with “dual allegiance” are completely anachronistic. But instead of Parliament routinely fixing anachronistic provisions through simple referenda as was done regarding Aboriginals, the High Court has taken it upon itself to usurp the functions of the legislature established by the Constitution for amending it – the referendum of the people. Given a complete absence of interest in politics among the people, the Parliament and Courts can get away with this, treating apathy as acquiescence. As soon as people actually care, such usurpation of popular sovereignty would be unsustainable.
4. Much of the commentary demonstrates even greater ignorance of the law, the High Court decisions, and the history of the democratic revolution in English speaking countries than that of the learned judges themselves, so I may just be adding to that confusion, but I am struck by a couple of points. I have at least read the latest judgments which is unusual.
5. As far as I can make out the Court of Disputed Returns is invalidly constituted. It is a Parliamentary tribunal performing Parliamentary functions until the Parliament otherwise provides. This should be just as much separated from justices of the High Court exercising the judicial power as any executive administrative tribunal, according to very clear precedents. Getting bogged down in this stuff helps illustrate why that separation of the judiciary from executive or legislative administration is important. So it is about time somebody with an interest at stake put them out of their misery by giving the High Court an opportunity to declare itself free from having to deal with this stuff. If anybody actually cared they would sue disqualified members under the Common Informers Act and there would be multiple layers to go through before anything arrived at the High Court.
6. As far as I can make out, the High Court has decided that Britain is a “foreign power” and decided many years ago that its subjects are “aliens” unless Australian citizens. Whether or not that makes any sense at all, it does not settle the issue of whether Australian citizens who are not aliens are or are not “entitled to the rights or privileges of a subject or citizen of a foreign power”. On the face of it that question is firmly settled by the 1948 Nationality Acts in both Britain and Australia as agreed on by an imperial conference. These clearly and unambiguously provide that Australian citizens are “British subjects”. If so, then proof of Australian citizenship, is in itself, in the absence of some renunciation of being a British subject, proof of disqualification. As far as I can make out this point has never been considered, let alone settled. It is hard to predict under what obfuscation legislation declaring Australian citizens to be British subjects could be interpreted as enabling them to renounce that status while remaining Australian citizens, let alone somehow ensuring that they have implicitly done so unless they happen to have British parents or whatever.
7. There was no Australian citizenship until 26 January 1949. A large majority of Australians of my generation and older were and are British subjects – subjects of a foreign power. Not just those with parents who were born in Britain but also anyone who is an Australian citizen including those born in Australia as Australians going back to the first fleet (perhaps excluding Aborigines if desperately TRYING to be obstreperous). This is well known. Unless the foreign power, Britain, has deprived these Australians of their British status by some subsequent legislation then they and their descendants have the same entitlement to the rights of a subject of a (British) foreign power as those recently disqualified. This has nothing to do with where their parents were born. If their parents were “British to their bootheels” like Menzies, then they are in the same position as other descendants of such “foreigners”.
8. So all perhaps except unnaturalized immigrant wogs need to get legal advice about the effect of British legislation on whether they are “foreign”. The history of British nationality law is extremely complex. For example under the Sophia Naturalization Act of 1705 certain people born outside Britain before it was repealed by the 1948 Act are British by birth. These protestant descendants of Princess Sophia, Electress of Hanover are of course disqualified by s.44 of the Australian Constitution (and also in line to become King of Queen of Australia). Prince Frederick of Prussia and Crown Prince Alexander of Yugoslavia are examples. Prince Ernst Augustus of Hanover was found to be a British subject in 1957. His British by birth immediate descendants would be less than 60 years old today. Who knows what descendants of such people might be lurking in the Australian Houses of Parliament? Yet the proposed declarations by Australian politicians concerning their potential disqualifications do not ask for any belief they might have either as to whether they are protestant or whether they could be descended from Princess Sophia. The potential for dual allegiance in this situation is appalling!
7. Since the High Court has gone rogue and has also blocked the appeals to the Privy Council provided by the Constitution, it may be impossible to avoid the absurdity of most Australians being British “foreigners” without action by Her Majesty’s British Ministers and the imperial Privy Council or imperial legislation to resolve the matter.
8. Of course the history of the democratic revolution in English speaking countries requires that any such change to the Australian Constitution be approved by the consent of the Australian people at a referendum. However that history does NOT require that the referendum by initiated by either colonial parliaments (now States) nor the Federal Parliament (possibly invalidly constituted) and certainly not by High Court judges nominated by persons purporting to be Ministers of the Crown who were not in fact Ministers. It would be entirely consistent with our constitutional history for such a referendum to be initiated by the Crown on the advice of its responsible Ministers.
9. These responsible Ministers could turn out to be Her Majesty’s British Ministers (especially if none of the people purporting to be her Australian Ministers were qualified as members of Parliament within 3 months of their appointment as required by the Constitution). Illusions about the reserve powers of the Crown are just that, illusions, as the House of Lords discovered when it had to capitulate to the Commons or be flooded with a “creation of peers” by the Crown on the advice of its Ministers. The basic principles were established when Charles Stuart had his head removed from his royal shoulders without his royal assent and have not been challenged since they were re-established by a Dutch protestant army in 1688.
8. No Court will inquire into whether the descendants of Queen Victoria are or are not descendants of Princess Sophia so we are constitutionally safe. No doubt a solution will be found and no doubt it will continue to be easy to mock.
9. So will all the “un-Australian” fussing about nationality and allegiance remain easy to mock. It is clearly as much an American import as Halloween, along with a Prime Minister putting his hand on his heart for a “national anthem” celebrating that “our land is girt by sea”.
10. It is particularly fascinating that nobody seems to have noticed the DIRECT parallel with the “birther” campaign mounted by first the Clinton camaign and then Trump against Obama demanding proof that he was born in Hawaii rather than Kenya. (As a “Goldwater girl” Hilary will remember the Democrat precedent based on 1964 GOP candidate Barry Goldwater having been born in the Arizona Territory before it became a State of the United States and therefore not being a natural born Citizen).