Nick vs the Dean of Law, UNSW

By: | Post date: October 29, 2017 | Comments: No Comments
Posted in categories: Australia

On the day of the High Court decision upholding the strict interpretation of Section 44i, I posted on the Facebooks:

Why am I surrounded in this country by dolts?

The High Court passed down the banhammer on the pollies. (Fun fact: turns out I’m as British as Xenophon is.) [False alarm.] The commentators get wheeled out on Channel 9. “We’re a country of immigrants, it’s a 100 year old regulation, we should change it.” Does the fool who said that realise that needs a referendum? And that Australians don’t pass referendums at the best of times? And that Australians would be itching to use it as an excuse to punish politicians?

It would seem I have just called Prof George Williams AO, dean of law at the University of New South Wales, a dolt:

Two ways forward now that the High Court has ruled on citizenship of MPs

The second option is to recognise that section 44 of the Constitution is ill-suited to modern times and should be amended. This part of the Constitution was drafted in the 1890s when dual citizenship was rare, and Australia more isolated and inward-looking. Today, the section runs counter to Australia’s national interests. It is not consistent with our sovereignty to permit the eligibility of our parliamentarians to be determined by the citizenship laws of foreign nations.

There’s rich irony in the same issue of The Age, carrying Wiliams’ comment, also carrying this article claiming that Australian universities are funding researchers collaborating with the People’s Liberation Army of China, and working to undermine the technological primacy of the American military.

… Which one could argue is also counter to Australia’s national interests, and is a context where dual citizenship does get to be looked at askance.

So. Am I comfortable to call Williams a dolt?

On the basis of that editorial, sure.

To some extent, because of the principle of it. The High Court is still satisfied by reasonable steps taken to renounce foreign citizenship (I think); so the fear that we are at the mercy of foreign countries undermining our parliament through citizenship law changes is unfounded (and was anticipated the last time this issue went to court, thanks to Phil Cleary). It does impose vigilance on would-be parliamentarians, to check for changes to their ancestral countries’ citizenship law—and inasmuch as those changes could still lead to conflicts of interest, it is right to. Saying probity is old-fashioned because multiculturalism is no argument, especially when a renunciation of dual citizenship is both already a routine matter for the Labor party, and a reasonable undertaking to do one’s job as an Australian legislator, purer than Caesar’s Wife. And “probity is old-fashioned because multiculturalism” is certainly not an argument of law, in which Williams is more expert than me.

To a much greater extent, because of the sheer impracticality of it. Constitutional amendments to address the indigenous people of Australia are repeatedly floundering—most recently this very week. Politicians aren’t convinced the Australian people will vote in a referendum to remedy the injuries done to indigenous Australians in the past, because it will be seen as overreach. Yet Williams assumes Australians will happily vote in a referendum to make things easier on political parties to dodge probity checks? Really?

Williams’ address to the National Press Club a few months back, inevitably, is rather more nuanced than his editorial today. It’s still politically naive though. He says that we used to vote on constitutional referenda all the time up until the Republic referendum of 1999; and then we lost our ticker for constitutional reform.

You know what else the Australian people lost in the last two decades? All remaining respect for the political class, and all inclination to make things easier for them. As witnessed by the upsurge in third party votes. Does Williams really think that politicians losing the ticker for constitutional reform is unrelated to the crisis of confidence in politicians?

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