Surfing moral panics …

A state without the means of some change is without the means of its conservation.        Edmund Burke (1729–1797).

Mal Brown was kind enough to comment on my recent post regarding our little Australian constitutional crisis, in part saying “ … I didn’t know Britain doesn’t have a constitution. What caused that anomaly ?”

It’s not an anomaly – it’s the proper way to do it! Admittedly it is unusual, there are few other countries that have not adopted a written constitution, New Zealand, Israel and Canada are among them.

So in the absence of an overarching document what does Britain have? Tradition, and some documents and ordinary acts of parliament. The system by which Britain is governed has grown as it has gone along. The general trend since Magna Carta was agreed between King John and a few rebellious barons in 1215 has been to diminish the power of the monarchy, increase the power of the Parliament and to make the parliament accountable to an increasing proportion of the population.

Lord Denning (1899 – 1999), the greatest English judge of modern times, described Magna Carta

as the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.

But despite the great Charter’s great fame the Bill of Rights of 1689 is actually more important. This followed a real constitutional crisis, the Glorious Revolution of 1688, in which a group of parliamentarians invited William of Orange to overthrow King James ll. William became King but was obliged to

solemnly promise and swear to govern the people of this kingdom of England, and the dominions thereunto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same.

In other words The Bill established the supremacy of Parliament over the Crown. It also provided “for the regular meeting of Parliament, free elections to the Commons, free speech in parliamentary debates, and some basic human rights, most famously freedom from ‘cruel or unusual punishment’” to quote Professor Robert Blackburn who goes on to outline what is in my opinion one of the greatest strengths of the British system …

There are a number of associated characteristics of Britain’s unwritten constitution, a cardinal one being that in law Parliament is sovereign in the sense of being the supreme legislative body. Since there is no documentary constitution containing laws that are fundamental in status and superior to ordinary Acts of Parliament, the courts may only interpret parliamentary statutes. They may not overrule or declare them invalid for being contrary to the constitution and ‘unconstitutional’. So, too, there are no entrenched procedures (such as a special power of the House of Lords, or the requirement of a referendum) by which the unwritten constitution may be amended. The legislative process by which a constitutional law is repealed, amended or enacted, even one dealing with a matter of fundamental political importance, is similar in kind to any other Act of Parliament, however trivial its subject matter.

Edmund Burke would be pleased.

So the Poms today are governed by the House of Commons, they can vote for a candidate of their choice if they so desire, the House of Lords acts as a house of review but its powers are much less than formerly, the Queen is an expensive ornament that presides over a continuing soap opera for the chattering classes and signs whatever parliament puts in front of her. The first past the post voting system ensures that there is usually a majority government or as Richard D North quaintly put it the constitution …

enshrines a prejudice against the mob. It is designed to eliminate any serious danger of direct democracy, and is instead a system for selecting and controlling a governing elite (the parliamentarians). A plebiscitic democracy, perhaps ushered in by the silicon chip, would, in one sense, be merely the last step towards democracy, but, in another, the first towards popular rule. But direct democracy risks the perpetual excitement of surfing moral panics, or the tedium of living in a Swiss canton.

Cold comfort …

… What a pleasant life could be had in this world by a handsome, sensible old lady of good fortune, blessed with a sound constitution and a firm will

Wrote Stella Gibbons in Cold Comfort Farm (published 1932). The heroine of the story is sponging off the welfare of others  and I learn from Wikipedia that …

each of the farm’s inhabitants has some long-festering emotional problem caused by ignorance, hatred, or fear, and the farm is badly run.

Sounds remarkably like the Australian Federal Parliament.

When I last wrote about our little constitutional difficulty the damage was largely confined to the Green Party. I happened to read one of the alt right web pages that I frequent to help reinforce my prejudices, I think it was The Australian. In the comments the overwhelming response was serve the bastards right. Lack of due diligence on the part of Green Senators, was of course no surprise, Watermelons are by definition stupid or they wouldn’t be Watermelons. No one seemed to notice that the Australia Constitution holds the contradictory provision that the Head of State will be a foreigner whilst no Australian parliamentarian can be even remotely tainted by otherness.

Since then the disease has spread a little wider and the only party not yet infected is the Australian Labor Party. Perhaps they have been more diligent in going through the motions of shedding alt citizenships.

Since my very erudite post on the issue there has been very little in the way of enlightening discussion of the underlying problem. However today at one of the ultra left wing sites I visit to counter my right wing bias, I have a chip on each shoulder, I found a good article by Michael Collet. You can read the whole article at Your ABC.

Mr Collett has gone to the trouble of visiting the debate that led to the wording in Section 44. (Or at least he has read an unspecified  “expert paper” which makes an appearance part way through the article). From him we learn that Sir John Hannah Gordon, a South Australian delegate to the Australasian Federal Convention that drafted the constitution, wanted to make a provision for naturalised British subjects but was shouted down. Significant responses being …

You cannot have two allegiances.  Patrick McMahon Glynn.

He may be minister of defence.  Sir George Turner.

It is worth remembering that this debate occurred in the latter half of the 1890’s, about a constitution that would determine the future for British subjects in Australia, between people who were in the main recent migrants to Australia and which led to the election of a parliament that contained a good proportion of people who would today fail the Section 44 provisions. Australian citizenship did not come into existence until 1949.

Notions of citizenship have changed significantly since the debate. In the 1890’s the sun never set on the British Empire, you might be a British Subject born far from Britain itself but you shared in that wonderful fellowship of belonging to the Empire. We might now think of citizenship as a commodity that is useful to us, our ticket to live somewhere, in the 1890’s British Subjects were a commodity useful to the Empire. It owned us.

There was no contradiction in disallowing the naturalised subjects a place in parliament because it didn’t rule out any of us, only the French and other foreigners.

And what of allegiance? If it’s that significant then sending a couple of your friends to the Iranian Embassy with a piece of paper saying “I renounce thee, I renounce thee, I renounce thee.” doesn’t cut it but does satisfy the High Court. Even if a second citizenship is surrendered it might still be the case that we have more of an issue with a foreign power, China for example, buying influence from our politicians.

Is it true that you cannot have two allegiances or even more? A patriotic Australian, a good catholic, a feminist and a Collingwood supporter. What if your committment to a particular religion or political ideology outranks your commitment to your country? What if the sign by the roadside says “You are in Wadawurrung country” when you thought you were in Australia? Ah, the imponderables.

As much as I enjoy anything that causes our execrable politicians discomfort I think our constitution is flawed. It seems that the bunch of migrants that put it together couldn’t envision a future when our migrants might not be British Subjects like themselves. It is an insult to those citizens by choice, like me.

I am proud of my British Heritage and I think that Australia has benefited enormously by adopting much of that heritage. We can’t blame Britain for the constitution though … they don’t have one. Well not a written one. Smart that.

 

 

 

 

 

 

Citizens …

The three Australians returned from Africa to find their country having a mini constitutional crisis.

Although all three of us are Australian citizens it just so happens that we were all born in another country, not all that amazing, more than a quarter of Australians are. I don’t know if the other two also retain citizenship of the countries of their birth. I do.

Some of our senators, much to their amazement, and my amusement,  had just discovered that they were citizens of another country.

Section 44 of our revered constitution has this provision …

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: or

… (4 more ways to disqualify yourself) …

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

 

Occasionally some one with a good ear will pick me as a pom and since it is an old Australian custom to rubbish poms a disparaging remark often follows. If I’m in a good mood I’m likely to say that I’m a citizen by choice, they’re just a citizen by accident, if I’m in a bad mood I smack them in the mouth.

So can I stand for parliament? Yes, I can but I must first renounce my British citizenship.

But let’s return to accidents and intentions. I am British by accident of birth, in other words a subject of her majesty. How odd that to become Australian I had to swear or affirm my allegiance to the Queen. She has been discretely dropped from the pledge in the meanwhile but she is still the head of state.

That’s right you can’t be an Australian politician if you also hold citizenship of another country but the head of state is a foreign national. How crazy.

Queensland senator-elect, Heather Hill, was ruled ineligible in 1999 because she held dual citizenship and had not taken adequate steps to relinquish it. The other citizenship was of New Zealand. Head of state of New Zealand? Too right, the same head of state as Australia.

One of our politicians was born in Iran …

Senator Dastyari said he applied three times to renounce his Iranian citizenship and every attempt failed. He eventually employed two Iranians to go into the embassy with his renunciation papers and photograph themselves, just to be sure. “There’s like a selfie with these two bearded Iranian guys and my forms,” he said.

<The Australian>

Did that enable him to serve Australia better … ask the Chinese (or The Courier Mail).

The High Court will have the task of sorting out a couple more citizenship issues in the near future. Will they be taking the framers of the constitutions intentions into consideration?

Difficult to do that. The Australian Constitution was written in the 1890’s, we were all just British Subjects back then. The Nationality and Citizenship Act 1948 created the concept of Australian citizenship, which came into force on 26 January 1949. In the first parliament, 1901, there were  26 parliamentarians from England, 17 from Scotland, seven from Ireland, two from Canada, one from New Zealand and one from Chile. All British subjects then, subject to suspicion now.

I guess what the constitution requires is something akin to …

“Loyalty, absolute loyalty to your courageous and wise leadership and we pledge to continue to be faithful soldiers behind your victorious leadership.”

Except that’s from a letter written by  Senator Eideh (Victorian State legislature) to President Assad of Syria.

Gee, it’s complicated.