As citizenship dramas spread through the parliament like flu through a public transport system, many are searching for someone to blame. I mean, besides themselves or their preferred party’s deficient systems of course — after all those attracted to politics seem far better at advocating others take personal responsibility than doing so themselves.
And as is the case with the English Cricket Team and the Decision Review System, it’s sometimes easier to blame the umpire than accept you were hit on the boot in front of middle and off. Hence the growing opprobrium over what Attorney General George Brandis described as the High Court’s “brutal literalism” in interpreting section 44 of the Constitution.
This is mistaken, both from a legal perspective — and perhaps more importantly from the perspective of a healthy democracy.
There is little doubt that the High Court could solve this ongoing crisis if it wished to do so. The Court could read down section 44 of the Constitution such that it only caught those who truly held allegiance to another country.
This was basically the position put by the Solicitor General on behalf of the government in re Canavan. Those who were ignorant of their dual citizenship status would have the ability to rectify that and remain in parliament.
That such a requirement cannot be found anywhere in the provisions of the Constitution matters less than one might think when taking such a progressive, purposive approach. Even if this is not so much seeing the Constitution as a living document that responds to modern circumstances, as arguing that it can grow — or shed — limbs when needed.
However those on the right of politics in particular should be very cautious about advocating for this kind of judicial activism. Rarely has it delivered outcomes that conservatives would support.
In a recent judgement, the High Court itself stated it was not its role to overcome unintended consequences of how a law was framed. It went on to note that to do so would be to effectively change the law “by reference to what it may be supposed Parliament might have provided if it had considered the specific circumstances before the Court.”
The High Court has taken exactly the right approach to interpreting section 44, in spite of the fact that their actions have prolonged the crisis in the short term and the difficulties it imposes for a small minority of people who may need specialist legal advice on their eligibility.
In truth, far fewer people would be opposed to the High Court’s reasoning if they were dealing with an ordinary statute that could be amended by an act of parliament. It is only because changing the Constitution through the ‘right’ channels is so hard that some wish to circumvent this process.
But this thinking is a symptom of the problem that gave rise to the citizenship crisis in the first place: too many politicians think following the rules is for the ruled, not the rulers.
No doubt they expected the High Court to simply fall in line with their wishes — at least, if their public statements are anything to go by. It must have been in equal measures galling and horrifying for those hiding their questionable status when the High Court administered a unanimous dose of reality.
No democracy can maintain the trust of its citizens for long if those making the laws are seen to be above the law. It is clear that dozens of politicians in recent years have given little or no thought to whether they are eligible to be chosen to sit in parliament, despite assuring the AEC and the voters that they are.
This whole situation is a damning indictment on the political class in this country. That politicians on all sides have sought to play political games around referrals to the High Court, hidden problem cases for months, and acted with rank hypocrisy, is both depressingly within character and desperately disappointing.
The current approach of a citizenship register is not even nearly enough to restore trust in the system. As an impartial, external body, the AEC should be empowered by statute to check the entitlement of each newly elected politician. All sides of politics must agree to co-operate fully with this process and also support immediate referral of anyone with a potential issue to the High Court for determination.
Politicians made this mess. They and their supporters should clean it up — not get mad that the High Court didn’t.
Simon Cowan is the Research Manager at the Centre for Independent Studies.
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