University
Place
Year
Introduction
Essay
I Introduction
The disqualification of ten parliamentarians in Re Canavan[1] and Re Gallagher[2] sparked national debate over membership within the Australian community.[3] Unsurprisingly, the High Court (‘Court’) affirmed the majority decision in Sykes v Cleary [No 2][4] and applied an originalist construction of section 44(i).[5]
Section 44(i) disqualifies from Parliament any person who ‘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 a citizen of a foreign power’.[6] The section has attracted popular,[7] journalistic[8] and academic criticism.[9] Although there have been calls for a referendum,[10] the Court in Re Canavan could have applied a non-originalist methodology of construction to respond to cultural and legislative changes to Australian membership. This would have rendered a referendum unnecessary. Importantly, this approach is consistent with different judgments in related areas of law which consider interpretive and practical questions in relation to Australian community membership.[11]
II Cultural and Legislative Developments
If construction of section 44(i) is to be historically-informed, it is important to analyse how membership in the citizenship community has evolved culturally and legislatively.[12]
A Cultural Developments
Australia’s immigration history reveals three seminal periods which facilitated the nation’s transition from a people fearful of difference to accepting of multiculturalism and likely, dual citizenship. These moments were Arthur Calwell’s immigration policy, the abolition of the White Australia policy (‘White Australia’) and the adoption of the Multiculturalism policy (‘Multiculturalism’).
The requirement for sole allegiance in section 44(i) is consistent with the international norms of the 18th and 19th centuries, when dual nationality was considered ‘undesirable, incompatible with individual loyalties and destabilising of the international order’.[13] Domestically, these beliefs were manifest in White Australia which gave legislative credence to Australians’ belief that ‘[b]oth the indigenous Australians and the populous Asian countries of the region [were] threatening’.[14]
After World War Two (‘WW2’), Australia ‘did not put a high test on the membership of their community.’[15] After facing the threat of Japanese invasion, then Minister for Immigration Arthur Calwell initiated the ‘boldest immigration venture of the century’[16] to boost Australia’s population and expand the economy to better defend itself.[17] Yet, a defender of White Australia, Calwell promised immigrants would be ‘as little “woggy” as possible.’[18] Therefore, be it by necessity or choice, Calwell’s policy signalled a shift in Australians’ perception of immigration. The public became more accepting of non-British joining their community.
The second period was the dismantling of White Australia.[19] The practical end was facilitated by the Fraser Government which made several multiculturalism achievements.[20] These included transforming the idea of multiculturalism into a policy framework[21] and commissioning the Galbally Report which made ‘wide-ranging and generous recommendations on the Australian government’s responsibilities for its non-English-speaking citizens’.[22] Furthermore, growth in the use of multiculturalism as ‘political rhetoric’[23] suggests a wider societal trend in favour of cultural diversity.
The final period was the Hawke years. The 1988 Fitzgerald Report reignited debate on immigration. It argued ‘the voice of opposition to multi-culturalism be taken seriously’[24] and recommended measures which some perceived as ‘creating a structural division on which to accelerate racism.’[25] Hawke swiftly rejected the Report.[26]
At the same time, historian Geoffrey Blainey argued ‘the rate of immigration from Asia posed a threat to Australia’s social cohesion.’[27] Pilger considers this the reason he was ‘isolated among his academic colleagues’.[28] Then Opposition Leader John Howard suffered similar backlash. Howard refused to distance his Party from the Report’s recommendations and ‘stood his ground on a government’s right to consider all the options’.[29] This damaged his credibility as leader and by the next election, was replaced by Peacock.[30]
Contrasting the public support enjoyed by Hawke against the backlash received by Howard and Blainey, reveals the ‘good will and sensitivity at many levels of Australian society’[31] to multiculturalism by the 1990s. With 52% of Australians in support of current or increased immigration levels[32] this goodwill continues today.
Therefore, the current construction of section 44(i) reflects Australians’ pre-1947 fear of cultural diversity.
B Legislative Developments
Until 1949, a ‘British subject’ was the formal status of a member of the Australian community. After the Australian Citizenship Act[33] came into effect, citizenship encompassed both Australian citizens and British subjects.[34] This remained until 1987 when membership was conferred on Australian citizens alone.[35] Since between 1949 and 1987, the term ‘Australian’ applied to both Australian citizens and British subjects, ‘loyalty and allegiance in Australia…..[could] cope with varying forms of identity and membership.’[36]
Furthermore, for many decades there was debate about whether section 17 of the Australian Citizenship Act,[37] which automatically stripped Australians of their citizenship if they took up another citizenship, should be repealed. Already at the 1976 Joint Committee on Foreign Affairs and Defence and the 1982 national consultations regarding multiculturalism and citizenship, section 17 was critically reviewed[38] for two reasons. First, it was deemed inconsistent as it only stripped some Australians of their citizenship, depending on the order in which the citizenships were obtained.[39] Secondly, in the increasingly globalised world, it was anachronistic to presume one’s connection to an additional country could detract from their connection to their birth country.[40]
AR Castan QC even considered the section unconstitutional. Excluding dual nationals from the ‘people of the Commonwealth’, when they do not intend to cease membership within the Australian citizenship community, undermines the intended meaning of that constitutional term.[41]
By 4 April 2002, the section was repealed.
Therefore, like the cultural developments, legislative changes to Australian citizenship reveal growing acceptance of dual nationality. Consequently, Re Canavan reflects ‘outmoded and discriminatory’[42] viewpoints.
III Non-Originalist Construction in Australia
Several cases reveal a willingness to adopt an historically-informed constitutional methodology.
A Sipka
In 1983, Prime Minister Fraser called a snap election and closed the electoral rolls early, preventing thousands of enrolments. The applicants argued that by closing the rolls early, eligible voters under the state franchise of New South Wales (‘NSW’) were deprived their right to vote, in contravention of section 41 of the Constitution. Section 41 prohibits limiting the franchise for any person who has the right to vote in state elections.
This decision is considered controversial as it rendered section 41 obsolete. However, as the decision has not been reversed, it is a practical illustration of historical considerations driving constitutional construction.[43]
The most methodologically significant consideration of the majority[44] was the section’s drafting history.[45] They held it revealed the ‘apprehended mischief’[46] of protecting the women of South Australia until their voting rights were enshrined in the federal franchise.
After women were granted the right to vote in South Australia in 1895 and Western Australia in 1899, South Australia threatened to boycott Federation[47] unless a constitutional franchise included women.[48] The other colonies opposed this. To ensure unity and defer discussions to a future parliament, the delegates agreed on section 41 as a compromise.[49] It guaranteed voting rights to anyone who could vote in state elections at the time of Federation, including the women of South Australia.[50] Informed by this history, the majority recognised section 41 as transitional and as of 1902, when the universal franchise was legislated,[51] serving no further purpose. This reveals a willingness to consider constitutional history, even if it renders the text ‘spent.’[52]
Justice Murphy’s dissent interpreted section 41 broadly but critically, and was also informed by the drafting history.[53] When the precursor to section 41 was debated, Sir Edmund Barton feared the section would empower state legislatures to expand the franchise by enfranchising people at the state-level.[54] Consequently, Sir Isaac Isaacs proposed an altered version of section 41.[55] Justice Murphy reasoned that since the 1901 version of section 41 omitted Isaacs’s alterations, Barton’s fears would still stand and a broader reading still applies.[56]
However, Murphy J broadened his historical analysis to the history of the federal franchise. Since Indigenous Australians were still excluded from the federal franchise until 1962, section 41 had to be interpreted broadly to guarantee the voting rights of those already exercising this right at the state-level.[57] Thus, Murphy J diverged from the majority by analysing the broader history of the federal franchise.[58]
As part of the Feminist Judgment Project,[59] Rubenstein interprets section 41 broadly as guaranteeing a fair voting system and preserving representative government. This is driven by an in-depth analysis of the social movements, namely the suffrage movements of South Australia and Western Australia, that impacted the drafting of section 41. Led by Catherine Helen Spence, they ‘impress[ed] upon their representatives that they would not vote in favour of Federation if their vote was not protected’.[60] They lobbied to secure section 41 as a constitutional guarantee of a fair right to vote in Australia.
Methodologically, this approach is more like Murphy J’s dissent. Instead of relying purely on the drafting history, Rubenstein is informed by the aspirations for section 41 of individuals, like Spence, who influenced the drafting of the section but were not themselves framers. Both Rubenstein and Murphy J account for social movements that contributed to the formation of section 41 but fall outside of the formal drafting process.
Justice Kirby’s dissent in Kartinyeri manifests a similar willingness to consider social movements, external to the drafting process.
B Kartinyeri
In Kartinyeri, the plaintiffs argued that the Hindmarsh Island Bridge Act[61] was unconstitutional. The case hinged on whether the race power[62] ‘permits the making of a special law which is detrimental to, and discriminates adversely against, a group of Aboriginal Australians solely by reference to their race.’[63] In his dissent, Kirby J reviewed the history of the race power and how the words of the Constitution could reflect these changes.
Of three principles of construction outlined by Kirby J, his final principle is the most critical:[64] when applying constitutional text, the Court may consider the amendment history of that text.[65] This clarifies the meaning of the text and provides a ‘thorough understanding of the reasons for the amendment and of the means by which it came about.’[66]
Examining the amendment history is simply an application of Murphy J’s and Rubenstein’s methodology. Constitutional amendments by referendum are only possible when social movements mobilise and argue that the Constitution is inadequate. By permitting this history to inform construction, Kirby J acknowledges that social factors can impact constitutional construction.
Another example of the Court applying social history to construction is Sue.
C Sue
In Sue, Heather Hill, a dual citizen of the United Kingdom (‘UK’) and Australia, was disqualified from Parliament under section 44(i). The Court held that the term ‘foreign power’ had evolved to include the UK[67] since ‘some words and phrases are capable of applying to different persons or things at different times’.[68]
In finding the two countries to be separate legal entities, the Court reflected on historical changes in the legal relationship between the UK and Australia, evidenced by the Australia Act.[69] Australian courts were not ‘bound to recognise and give effect…[to] the institutions of government of the United Kingdom’,[70] the UK could no longer pass legislation to bind Australia,[71] nor could the Privy Council hear appeals from the Court.[72]
This judgment is a further extension of Rubenstein’s and Murphy J’s methodology since construction of the term ‘foreign power’ was informed by political forces outside the formal drafting process. This example is especially significant as it concerns construction of section 44(i) and serves as precedent for drawing on cultural and legislative developments[73] when applying the section.
IV Construction of Section 44(i)
In Re Canavan, the Court held that sections 24 and 7 of the Constitution protect a dual national from disqualification if they take all reasonable steps to divest themselves of their foreign citizenship, according to the foreign law.[74] However, the Court’s ultimate construction undermines the enshrined constitutional freedoms of representative government and popular sovereignty[75] and consequently, does not give sufficient weight to sections 7 and 24. Instead, the Court should have applied a structural implication that section 44(i) must yield to these constitutional principles and be rendered obsolete.
Case law now affirms the constitutional principle of representative government.[76] Sections 7 and 24 stipulate that parliamentarians shall be directly chosen by the people at periodic elections and was the basis of the Court’s provision of representative government within the Constitution in Lange.
Courts have acknowledged popular sovereignty within the Constitution by recognising several modes of civic engagement as constitutionally protected. This includes political communication,[77] speech,[78] voting,[79] funding[80] and access for political activity.[81]
Courts will give effect to the implied freedom to engage civically[82] by recognising the protections necessary to ensure the political sovereignty of the people.[83] This was illustrated in Roach when the Court struck down legislation which sought to extinguish prisoners’ voting rights and their membership in the body politic.
Furthermore, Keane J argues that the Commonwealth franchise establishes ‘that the people of the Commonwealth are the sovereign power’.[84] The Constitution frames these freedoms in ‘collectivist and egalitarian’[85] terms to serve the aggregate interests of the Australian people.[86]
If political unity is implicit within these freedoms, governments should be denied the power ‘to divide or segregate the people in terms of religion, race, gender or social condition’.[87] Yet, section 44(i) ‘effectively create[s] two types of Australian citizens: those who can participate fully, and those who cannot.’[88] The very premise of the section contradicts the collectivist freedoms the courts have recognised.[89] Therefore, construction of section 44(i) should be read down to yield to these freedoms.
This would not be the first time the Court has relied on a structural implication to render a constitutional provision obsolete. In New South Wales v Commonwealth,[90] the Court read down section 101 which created an Inter-State Commission ‘with such powers of adjudication and administration as the Parliament deems necessary’.[91] This decision effectively rendered the Commission powerless and led to its dissolution.
Significantly, these findings are congruous with historical changes to Australian membership.[92] Section 44(i) was intended to safeguard against treason by ‘prevent[ing] persons with foreign loyalties or obligations from being members of the Australian Parliament’.[93] In Kartinyeri, Kirby J acknowledged that the meaning of constitutional text can change over time if the words themselves are broad and demand ‘a measure of accommodation’,[94] if new and unpredictable matters arise,[95] or if the values of the Australian and international community change.[96] Since courts have demonstrated a willingness to protect the principles of popular sovereignty and representative government, this development must be weighed against the mischief of section 44(i) which, in light of cultural and legislative changes, appears redundant.[97] On this basis, the section should yield to these freedoms, justifying construction of section 44(i) as obsolete.
V Conclusion
Despite cultural and legislative changes to immigration and citizenship in Australia, section 44(i) remains one of the last constitutional or legal texts to reflect the outdated presumption that membership demands unitary allegiance.
Instead, the Court could apply a non-originalist constitutional methodology to account for historical factors, namely cultural and legislative changes to immigration and citizenship. This would permit construction of section 44(i), grounded in a structural implication that the provision should yield to the constitutional freedom to engage civically and is therefore, constitutionally spent.
VI Bibliography
A Journal Articles
Ackerman, Bruce, ‘Constitutional Politics/Constitutional Law’ (1989) 99 Yale Law Journal 453
Brooks, Adrian, ‘A Paragon of Democratic Virtues: The Development of the Commonwealth: Franchise’ (1993) 12 University of Tasmania Law Review 208
Coper, Michael, ‘The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur?’ (1994) 16(2) Sydney Law Review 185
Crowe, Jonathan, and Peta Stephenson, ‘An Express Constitutional Right to Vote? The Case for Reviving Section 41’ (2014) 36 (2) Sydney Law Review 205
Emerton, Patrick, ‘Political Freedoms and Entitlements in the Australian Constitution – An Example of Referential Intentions Yielding Unintended Legal Consequences’ (2010) 38 Federal Law Review 169
Goldsworthy, Jeffrey, ‘Constitutional Cultures, Democracy, and Unwritten Principles’ [2012] University of Illinois Law Review 683
Goldsworthy, Jeffrey, ‘Constitutional Implications Revisited’ (2011) 30 University of Queensland Law Journal 10
Goldsworthy, Jeffrey, ‘Kable, Kirk and Judicial Statesmanship’ (2014) 40(1) Monash University Law Review 75
Goldsworthy, Jeffrey, ‘Justice Windeyer on the Engineers’ Case’ (2009) 37 Federal Law Review 363
Goldsworthy, Jeffrey, ‘Originalism in Constitutional Interpretation’ (1997) 25 Federal Law Review 1
Keane, Patrick, ‘The People and the Constitution’ (2016) 42 Monash University Law Review 529
Kirk, Jeremy, ‘Constitutional Implications from Representative Democracy’ (1995) 23(1) Federal Law Review 37
Lim, Brendan, ‘Books Review Essay: An Australian Reads Living Originalism’ (2011) 34 Sydney Law Review 809
Markus, Andrew, ‘Attitudes to Immigration and Cultural diversity’ (2014) 50 Journal of Sociology 10
Markus, Andrew, and Margaret Taft, ‘Postwar Immigration and Assimilation: A Reconceptualisation’ (2015) 46 Australian Historical Studies 234
Mason, Anthony, ‘The Judge as Law-maker’ (1996) 3 James Cook University Law Review 1
Mason, Anthony, ‘The Role of a Constitutional Court in a Federation’ (1986) 16 Federal Law Review 1
Rubenstein, Kim, From this time forward…I pledge my loyalty to Australia: Loyalty, Citizenship and Constitutional law in Australia (8 May 2008) ANU College of Law <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1130626>
Sandalow, Terrance, ‘Abstract Democracy: A Review of Ackerman’s We the People Review Essay’ (1992) 9 Constitutional Commentary 390
Solum, Lawrence B., ‘Construction and Constraint: Discussion of Living Originalism’ (2013) 7(1) Jerusalem Review of Legal Studies 17
Thomson, James A., ‘An Australian Bill of Rights: Glorious Promises, Concealed Dangers’ (1994) 19(4) Melbourne University Law Review 1020
Twomey, Anne, ‘The Federal Constitutional Right to Vote in Australia’ (2000) 28 Federal Law Review 125
B Cases
Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1
Australian Capital Television v Commonwealth (1992) 177 CLR 106
Amalgamated Society of Engineers v Adelaide Steampship Co Ltd (1920) 28 CLR 129
Cole v Whitfield (1988) 165 CLR 360
Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Levy v Victoria (1997) 189 CLR 579
McCloy v New South Wales (2015) 257 CLR 178
Melbourne Corporation v Commonwealth (1947) 74 CLR 31
Murphy v Electoral Commissioner (2016) 261 CLR 28
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
New South Wales v Commonwealth (1915) 20 CLR 54
Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178
Re Canavan (2017) 91 ALJR 1209
Re Gallagher (2018) 92 ALJR 502
R v Pearson; Ex parte Sipka (1983) 152 CLR 254
Roach v Electoral Commissioner (2007) 233 CLR 162
Rowe v Electoral Commissioner (2010) 243 CLR 1
Sue v Hill (1999) 199 CLR 462
Sykes v Cleary [No 2] (1992) 176 CLR 77
Unions NSW v New South Wales (2013) 252 CLR 530
Victoria v Commonwealth (1971) 122 CLR 353
Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434
C Books
Ackerman, Bruce, We the People (Cambridge University Press, 1991)
Arcioni, Elisa, and Kim Rubenstein, ‘R v Pearson; Ex Parte Sipka: Feminism and the Franchise’ in Heather Douglas et al (eds), Australian Feminist Judgments: Writing and Rewriting Law (Hart Publishing, 2014) 55
Bailey, Peter, Human Rights: Australia in an International Context (Buttersworths, 1990)
Balkin, Jack M., Living Originalism (Harvard University Press, 2011)
Brett, Judith, Australian Liberals and the Moral Middle Class (Cambridge University Press, 2003) 126
Blainey, Geoffrey, A Shorter History of Australia (Vintage Books Australia, revised ed, 2009)
Galligan, Brian, A Federal Republic: Australia’s Constitutional System of Government (Cambridge University Press, 1995)
Hanks, Peter, Constitutional Law in Australia (Butterworths, 2nd ed, 1996)
Hirst, John, ‘A Nation of Immigrants’ in Looking for Australia (Black Inc., 2010) 201
Hirst, John, ‘Political Life’ in Looking for Australia (Black Inc., 2010) 99
Hirst, John, ‘Telling the History’ in Looking for Australia (Black Inc., 2010) 5
Markus, Andrew, Race: John Howard and the remaking of Australia (Allen & Unwin, 2001)
Pilger, John, A Secret Country (Cape, 1989)
Rubenstein, Kim, Australian Citizenship Law (Thomson Reuters, 2nd ed, 2016)
Rubenstein, Kim, ‘Loyalty and Membership: Globalization and its Impact on Citizenship, Multiculturalism, and the Australian Community’ in Geoffrey Braham Level, Political Theory and Australian Multiculturalism (Berghahn Books, 2008) 171
Saunders, Cheryl, The Constitution of Australia (Hart Publishing Ltd, 2011)
D Legislation
Australia Act 1986 (Cth)
Australian Citizenship Act 1948 (Cth)
Australian Citizenship Act 2007 (Cth)
Commonwealth of Australian Constitution Act 1901 (Cth)
Commonwealth Electoral Act 1918 (Cth)
Constitution Alteration (Aboriginals) Bill 1967 (Cth)
Electoral Act 1918 (Cth)
Franchise Act 1902 (Cth)
Hindmarsh Island Bridge Act 1997 (Cth)
Migration Act 1958 (Cth)
E News Articles/Media
Brown, Andrew, Referendum to change section 44 should be held at election, law expert says (10 March 2018) The Sydney Morning Herald <https://www.smh.com.au/national/act/referendum-to-change-section-44-shou...
Clark, Martin, Re Canavan; Re Joyce; Re Ludlam; Re Nash; Re Roberts; Re Waters; Re Xenophon (6 December 2017) Opinions on High <https://blogs.unimelb.edu.au/opinionsonhigh/2017/12/06/re-canavan-et-al-...
Doran, Matthew, Will we actually vote on changing the constitution after the dual citizenship fiasco? (17 May 2018) ABC News <http://www.abc.net.au/news/2018-05-17/section-44-committee-recommendatio...
Karp, Paul, Referendum ‘the only way’ to solve Australia’s citizenship crisis (8 May 2018) The Guardian <https://www.theguardian.com/australia-news/2018/may/08/referendum-the-on...
Lewis, Rosie, By-election results strengthen calls to change section 44 (3 August 2018) The Australian <https://www.theaustralian.com.au/national-affairs/byelection-results-str...
Marusevich, Arthur, The war against section 44 and how we can defeat it (28 May 2018) Lawyers Weekly <https://www.lawyersweekly.com.au/wig-chamber/23310-the-war-against-secti...
McIntyre, Joe, The dual citizenship saga shows our Constitution must be changed, and now (17 November 2017) The Conversation <https://theconversation.com/the-dual-citizenship-saga-shows-our-constitu...
National Museum of Australia, White Australia policy ends <http://www.nma.gov.au/online_features/defining_moments/featured/end_of_t...
Reilly, Graham, Section 44: Changing the Constitution to reflect modern Australia (21 August 2017) Pursuit by the University of Melbourne <https://pursuit.unimelb.edu.au/articles/section-44-changing-the-constitu...
F Speeches
Donoghue, Stephen, ‘The Collision of History and Text: The Story of Dual Citizens and s 44(i) of the Constitution’ (Speech delivered at the 2018 Melbourne University Law Students’ Society Sir Anthony Mason Lecture, Melbourne, 1 August 2018)
Gageler, Stephen, ‘Beyond the test: a vision of the structure and function of the Constitution’ (Speech delivered at the Sir Maurice Byers Lecture, 7 April 2009)
Mason, Anthony, ‘The Role of the Courts at the Turn of the Century’ (Speech delivered at the 5th Annual AIJA Oration in Judicial Administration, Melbourne, 5 November 1993)
G Government Documents/Research Papers
Department of Immigration, ‘A Job for the Ordinary Citizen of Our Country’ in Digest of the Australian Citizenship Convention (1954)
Markus, Andrew, Immigration and public opinion (March 2012) A Greater Australia: Population, Policies and Governance <http://apo.org.au/system/files/29061/apo-nid29061-77406.pdf>
Prince, Peter, ‘Mate! Citizens, Aliens and “real Australians” – the High Court and the case of Amose Ame’ (Research Paper No 4, Parliamentary Library, Parliament of Australia, 2005)
H Newsletters
Irving, Helen, 'Citizens and Not-quite Citizens' (1993) 2(4) Constitutional Centenary: The Newsletter of the Constitutional Centenary Foundation 8
[1] (2017) 91 ALJR 1209 (‘Re Canavan’).
[2] (2018) 92 ALJR 502 (‘Re Gallagher’).
[3] This article will only discuss disqualification under section 44(i). It will not consider disqualifications under any of the other subsections.
[4] (1992) 176 CLR 77 (‘Sykes’).
[5] This article will not discuss the judgment in Re Canavan or Re Gallagher. For thorough discussion of the judgments, see Martin Clark, Re Canavan; Re Joyce; Re Ludlam; Re Nash; Re Roberts; Re Waters; Re Xenophon (6 December 2017) Opinions on High <https://blogs.unimelb.edu.au/opinionsonhigh/2017/12/06/re-canavan-et-al-... Martin Clark, Re Gallagher (9 May 2018) Opinions on High <https://blogs.unimelb.edu.au/opinionsonhigh/2018/05/09/re-gallagher/>.
[6] Australian Constitution section 44(i) (‘the Constitution’).
[7] See, eg, Arthur Marusevich, The war against section 44 and how we can defeat it (28 May 2018) Lawyers Weekly <https://www.lawyersweekly.com.au/wig-chamber/23310-the-war-against-secti... Rosie Lewis, ‘By-election results strengthen calls to change section 44’, The Australian (online), 3 August 2018 <https://www.theaustralian.com.au/national-affairs/byelection-results-str....
[8] See, eg, Joe McIntyre, The dual citizenship saga shows our Constitution must be changed, and now (17 November 2017) The Conversation <https://theconversation.com/the-dual-citizenship-saga-shows-our-constitu... Paul Karp, ‘Referendum “the only way” to solve Australia’s citizenship crisis’, The Guardian (online), 8 May 2018 <https://www.theguardian.com/australia-news/2018/may/08/referendum-the-on....
[9] See, eg, Kim Rubenstein, From this time forward…I pledge my loyalty to Australia: Loyalty, Citizenship and Constitutional law in Australia (8 May 2008) ANU College of Law <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1130626>; Andrew Brown, ‘Referendum to change section 44 should be held at election, law expert says’, The Sydney Morning Herald (online), 10 March 2018 <https://www.smh.com.au/national/act/referendum-to-change-section-44-shou....
[10] See, eg, Matthew Doran, ‘Will we actually vote on changing the constitution after the dual citizenship fiasco?’, ABC News (online), 17 May 2018 <http://www.abc.net.au/news/2018-05-17/section-44-committee-recommendatio....
[11] The meaning of the term ‘foreign power’ was discussed in Sue v Hill (1999) 199 CLR 462 (‘Sue’). Different modes of membership within the community, especially in relation to race, were discussed by Kirby J in Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337 (‘Kartinyeri’). The right to vote in federal elections was considered in R v Pearson; Ex parte Sipka (1983) 152 CLR 254 (‘Sipka’).
[12] This article is not itself a work of historical scholarship and therefore, seeks to collate the work of significant Australian historians which discuss citizenship, multiculturalism and immigration. The article then draws on this history to identify national shifts in the Australian population’s perception of citizenship and membership within the Australian community.
[13] Rubenstein, above n 9, 24.
[14] Judith Brett, Australian Liberals and the Moral Middle Class: From Alfred Deakin to John Howard (Cambridge University Press, 2003) 45.
[15] John Hirst, ‘A Nation of Immigrants’ in Looking for Australia: Historical Essays (Black, 2010) 201, 210.
[16] Geoffrey Blainey, A Shorter History of Australia (Vintage Books Australia, revised ed, 2009) 224.
[17] John Hirst, ‘Political Life’ in Looking for Australia: Historical Essays (Black, 2010) 99; Andrew Markus and Margaret Taft, ‘Postwar Immigration and Assimilation: A Reconceptualisation’ (2015) 46(2) Australian Historical Studies 234.
[18] Hirst, above n 17, 139.
[19] John Hirst, ‘Telling the History’ in Looking for Australia: Historical Essays (Black, 2010) 5. It is disputed whether it was Holt or Whitlam who reversed White Australia.
[20] Brett attributes the policy shift to Whitlam, see Brett, above n 14. The National Museum of Australia attributes the dismantling of White Australia to Holt, see National Museum of Australia, White Australia policy ends <http://www.nma.gov.au/online_features/defining_moments/featured/end_of_t.... Markus argues that the policy shift was put into practice by Fraser and therefore attributes the policy shift to him, see Andrew Markus, Race: John Howard and the remaking of Australia (Allen & Unwin, 2001).
[21] Brett, above n 14.
[22] Ibid 158.
[23] Markus, above n 20, 26.
[24] John Pilger, A Secret Country (Cape, 1989) 97. This article has adopted Pilger’s spelling of ‘multi-culturalism’ when directly citing his work.
[25] Ibid 97–8.
[26] Ibid.
[27] Brett, above n 14, 186.
[28] Pilger, above n 24, 94.
[29] Brett, above n 14, 186.
[30] Ibid.
[31] Pilger, above n 24, 100.
[32] Andrew Markus, ‘Attitudes to immigration and cultural diversity in Australia’ (2014) 50(1) Journal of Sociology 10.
[33] 1948 (Cth).
[34] Rubenstein, above n 9.
[35] Ibid. After 1987, British subjects lost their privileged status under Australian citizenship law unless they obtained Australian citizenship. However, British subjects listed on the Commonwealth electoral roll were entitled to remain under section 93(1) of the Commonwealth Electoral Act 1918 (Cth). See Kim Rubenstein and Jacqueline Field, ‘Australian Citizenship Act 2007 (Cth)’ in Australian Citizenship Law (Thomson Reuters, 2nd ed, 2016) 91.
[36] Kim Rubenstein, ‘Loyalty and Membership: Globalization and its Impact on Citizenship, Multiculturalism, and the Australian Community’ in Geoffrey Braham Levey (ed), Political Theory and Australian Multiculturalism (Berghahn Books, 2008) 171, 176.
[37] 2007 (Cth) (‘the Citizenship Act’).
[38] Rubenstein, above n 9.
[39] Ibid. For example, if a Swiss citizen moved to Australia and satisfied the requirements to obtain Australian citizenship, section 17 would not require them to give up their Swiss citizenship; whereas an Australian who moved to Switzerland and obtained Swiss citizenship would lose their Australian citizenship automatically.
[40] Ibid. The Australian Citizenship Council stated that ‘[t]he law and practice of most countries with which Australia likes to compare itself permits citizens of those countries to obtain another citizenship without losing their original citizenship … These countries simply recognize that they have an internationally mobile population and that they can retain connection with this population even if another citizenship is acquired.’ See Rubenstein and Field, above n 35, 272, quoting Australian Citizenship Council, ‘Australian Citizenship for a New Century’ (Research Report, February 2000) 65.
[41] Ibid.
[42] Ibid 272, quoting Joint Standing Committee on Migration, Parliament of Australia, Australians all: enhancing Australian citizenship (1994) 206.
[43] Jonathan Crowe and Peta Stephenson agree with Murphy J’s dissent and dispute whether the history of section 41 supports the majority’s finding that the section was intended as transitional. However, since they consider Murphy J’s judgment persuasive and do not object to his methodology of permitting history to inform constitutional construction, their argument does not contradict the insight drawn from Sipka by this article. See Jonathan Crowe and Peta Stephenson, ‘An Express Constitutional Right to Vote? The Case for Reviving Section 41’ (2014) 36 (2) Sydney Law Review 205.
[44] Gibbs CJ, Mason and Wilson JJ delivered one joint judgment and Brennan, Dawson and Deane JJ delivered a second joint judgment.
[45] The majority outlined two other reasons which are not directly relevant to this article. First, sections 8 and 30 of the Constitution confer the federal franchise on state electors ‘until the Parliament otherwise provides.’ Thus, interpreting the Constitution holistically, section 41 was only intended to protect state-voters’ right to vote until the national franchise was established by Parliament in 1902. Secondly, if section 41 was to establish a constitutional federal franchise (as argued by the applicants), the uniform franchise could be amended by the laws of any state This would render redundant section 128 of the Constitution which permits constitutional amendments only by referendum and would destroy the Parliament’s power to legislate regarding the uniform franchise. See Sipka (1983) 152 CLR 254, 277–9.
[46] Ibid 262.
[47] This article has adopted the capitalisation of the word ‘Federation’ in this section to be consistent with the Court’s judgment in Sipka.
[48] Elisa Arcioni and Kim Rubenstein, ‘R v Pearson; Ex Parte Sipka: Feminism and the Franchise’ in Heather Douglas et al (eds), Australian Feminist Judgments: Writing and Rewriting Law (Hart Publishing, 2014) 55.
[49] Ibid.
[50] Sipka (1983) 152 CLR 254.
[51] Franchise Act 1902 (Cth) (‘Franchise Act’).
[52] Sipka (1983) 152 CLR 254, 280.
[53] Although not directly relevant to this article, it should be noted that Murphy J also considered policy ramifications in his decision. If section 41 is not broadly applied to guarantee the right to vote, future parliaments could target certain classes of citizens by excluding them from the federal franchise. Until its removal in 1962, section 4 of the Franchise Act 1902 (Cth) disqualified Indigenous Australians from the federal franchise, even though they could vote in state elections in New South Wales, Victoria and Tasmania. If section 41 was not intended to be interpreted broadly, the voting rights of Indigenous Australians in these states would have remained unprotected until 1962. This could have set a dangerous precedent, allowing future parliaments to deprive different classes of citizens of their Commonwealth right to vote. See Sipka (1983) 152 CLR 254, 270–1.
[54] Ibid.
[55] Ibid.
[56] Ibid.
[57] Ibid. This included Indigenous Australians in NSW, Victoria and Tasmania who were granted the right to vote at the state-level, before the federal franchise included all Indigenous Australians.
[58] Although not relevant to this article, Murphy J outlined three additional reasons. First, the plain words of the section, which guarantee every adult voter in state elections the right to vote in federal elections, reveal the section’s purpose and favour a broad construction. Secondly, by purposefully omitting the limiting phrase used in other parts of the Constitution, ‘until the Parliament otherwise provides,’ the framers implied that section 41’s application should not be limited as transitional. See, eg, Constitution section 30. Finally, although merely persuasive, Murphy J considered it noteworthy that Parliament has continued to refer to section 41 as guaranteeing the right to vote in legislation. See, eg, Electoral Act 1918 (Cth) section 39. See Sipka (1983) 152 CLR 254, 268–9, 273–4.
[59] The Australian Feminist Judgments Project brings together feminist lawyers, academics and activists to write alternative feminist judgments to a series of cases. The Project seeks to explore the opportunities and limitations of applying a feminist approach to legal decision-making in Australia. See TC Beirne School of Law, Australian Feminist Judgments Project, the University of Queensland <https://law.uq.edu.au/the-australian-feminist-judgments-project>.
[60] Arcioni and Rubenstein, above n 48, 65.
[61] 1997 (Cth).
[62] Constitution section 51(xxvi).
[63] Kartinyeri (1998) 195 CLR 337, 386 [103].
[64] For the sake of completeness, it is important to note Kirby J’s first two principles of construction. First, courts owe a duty to the Constitution which created them. No judge is ‘authorised to alter the essential meaning of’ the text; they can lose legitimacy if they shift ‘attention away from the text and structure’ and instead focuses on ‘changing times’ or the ‘perceived needs of justice in a particular case.’ Secondly, Kirby J concedes that the meaning of certain words in the Constitution can change over time. This can be the case if the words are themselves broad and demand ‘a measure of accommodation’, if new and unpredictable matters arise, if the values of the Australian international community change which ‘inevitably affect any contemporary perception’ of the words, or if a generation’s ‘accumulated experience’ allows them to find ‘in the sparse words ideas and applications that earlier generations would not have imagined’. Should any of these phenomena occur, the Constitution is ‘read with different eyes at different times in the light of different necessities’ with consideration for the history of the Commonwealth and its Constitution. See Kartinyeri (1998) 195 CLR 337, 399-400 [132], 412 [156].
[65] Ibid.
[66] Ibid 401 [132].
[67] Similar reasoning was applied by the Court in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 (‘Nolan’) regarding the word ‘alien’ in section 12 of the Migration Act 1958 (Cth). In Nolan, the Court conceded that the framers could not have conceived of British citizens as aliens. However, as Australia had gained legislative and cultural independence from the UK throughout the twentieth century, Australian citizenship had developed to be independent of British citizenship. See Nolan (1988) 165 CLR 178, 185–6.
[68] Sue (1999) 199 CLR 462, 526 [167].
[69] 1986 (Cth) (‘Australia Act’).
[70] Sue (1999) 199 CLR 462, 490 [59].
[71] Ibid.
[72] Ibid.
[73] See above Part II.
[74] What constitutes reasonable steps will depend on the circumstances of the case. See Sykes (1992) 176 CLR 77, 108, 131.
[75] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (‘Lange’); Roach (2007) 233 CLR 162; Rowe v Electoral Commissioner (2010) 243 CLR 1 (‘Rowe’). Together, these constitutionally-enshrined principles guarantee the Australian people’s freedom to engage civically.
[76] Australian Capital Television v Commonwealth (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (‘Nationwide News’); Lange (1997) 189 CLR 520.
[77] Lange (1997) 189 CLR 520.
[78] Levy v Victoria (1997) 189 CLR 579.
[79] Roach (2007) 233 CLR 162; Rowe (2010) 243 CLR 1.
[80] Unions NSW v New South Wales (2013) 252 CLR 530 (‘Unions’).
[81] Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1.
[82] Unions (2013) 252 CLR 530.
[83] Ibid.
[84] Patrick Keane, ‘The People and the Constitution’ (2016) 42(3) Monash University Law Review 529, 538.
[85] Ibid 539.
[86] McCloy v New South Wales (2015) 257 CLR 178, 207 (‘McCloy’).
[87] Keane, above n 84, 539.
[88] Helen Irving, 'Citizens and Not-quite Citizens' (1993) 2(4) Constitutional Centenary: The Newsletter of the Constitutional Centenary Foundation 8, 10.
[89] For the sake of completeness, it should be noted that other commentators have considered section 44(i) as undermining different democratic, constitutional principles (and not just representative government and popular sovereignty). Jeremy Kirk argued that it undermines the freedom to nominate for elections. See Jeremy Kirk, ‘Constitutional Implications from Representative Democracy’ (1995) 23(1) Federal Law Review 37. Peter Bailey argued that it undermines the democratic right to be elected. See Peter Bailey, Human Rights: Australia in an international context (Butterworths, 1990). Helen Irving argued that it contradicts multiculturalism and undermines the principle of equality by creating two subclasses of citizens. See ibid.
[90] (1915) 20 CLR 54 (‘Wheat Case’).
[91] Constitution section 101. In the Wheat Case, the NSW Government argued that since the Inter-State Commission was not a Chapter III court, if it was to exercise judicial powers of ‘adjudication’, section 101 would have the effect of conferring powers on a corporation the Constitution did not authorise. Recognising the constitutional principle of separation of powers and that Chapter III as a ‘complete and exclusive’ enumeration of the courts exercising federal jurisdiction, the Court held the Inter-State Commission could only be executive or administrative. ‘Adjudication’ in section 101 was read down to exclude questions of law. See Wheat Case (1915) 20 CLR 54, 62.
[92] See above Part II.
[93] Sykes (1992) 176 CLR 77, 127.
[94] Kartinyeri (1998) 195 CLR 337, 400 [132].
[95] Ibid.
[96] See above n 64. The meaning of constitutional text can also change if a generation’s ‘accumulated experience’ allows them to find ‘in the sparse words ideas and applications that earlier generations would not have imagined’. See ibid.
[97] See above Part II.
