Dual to the Death!

Here is a news story that will make no sense whatsoever to anyone who is not Australian - and, indeed, shouldn't really make any sense even if you are Australian. From The Sunday Times of Perth:

Senator Parry has released a statement confirming he will step down as President of the Senate and resign his seat if British authorities say that he is a British citizen.

The senator is still awaiting confirmation from the authorities... "As a result of this I have had cause to examine my citizenship status in relation to my late father having being born in the United Kingdom," he said.

"My father moved to Australia as a boy in 1951.

"He married my mother in 1960 and I was born that same year in Burnie.

"I have always regarded my late father as Australian, particularly as he undertook his national service and participated as a member of the Australian Army Reserve and voted in every Australian election since adulthood."

But not so. As my old comrade Andrew Bolt put it:

Britain on Wednesday confirmed he was one of theirs.

"One of theirs." A deep sleeper. He's probably been working for them for decades, getting his instructions from a dead-drop in a tree-trunk round the back of the High Commission... He almost gave the game away once, saying "Blimey!" instead of "Crikey!", but fortunately he recovered and pretended to like "Neighbours". No, wait, hang on...

At any rate, a senior member of the Australian cabinet, born and bred in Australia, turns out to be ineligible for Parliament because the bureaucracy of another country from whom he has never sought a passport has determined that via a deceased parent he is a citizen of theirs.

Gotcha. Welcome to the wacky world of the Australian constitution, specifically Section 44, under whose expansive interpretation by the High Court Canberra's most illustrious parliamentarians are dropping faster than Harvey Weinstein's robe. Tim Blair has a convenient cut-out-'n'-keep guide here, noting the crimes of which these sinister semi-aliens have been found guilty:

The Deputy Prime Minister of Australia, Barnaby Joyce, is a closet New Zealander;

Mr Joyce's deputy, Fiona Nash, is a covert Scot;

Scott Ludlam and Larissa Waters, both of the Greens, turn out to have, respectively, Kiwi and Canuck carbon footprints that glow in the dark;

and Malcolm Roberts, of the One Nation Party, is in fact a Two-Nation Party all by himself, still holding UK citizenship because, although he renounced it, he sent his renunciation to the wrong address - a kebab shop in Cairns rather than the British High Commissioner in Canberra. Easy mistake to make, but in this case fatal.

Mr Joyce was born in Tamworth, New South Wales. His grandfather landed at Gallipoli and was a bodyguard to the Prince of Wales. Unfortunately for him, his father was born in New Zealand at a time when neither Australian nor New Zealand citizenship existed. Even today, Australia and New Zealand are part of the Trans-Tasman common travel area, and their citizens can live and work in each other's countries, leading many innocent Australians to be lured into Kiwi honey traps.

A casual observer might have assumed that a crisis about "allegiance to a foreign power" Down Under would be something to do with the remarkable number of "Australians" signing up for the Islamic State and head-chopping their way across the Levant and the Sunni Triangle. One thinks, for example, of Khaled Sharrouf's seven-year-old son, born and raised in Sydney but an Internet sensation after he was snapped waving around the bloody, dripping head of a Syrian soldier. Yet the Australian state is genially relaxed about that. It's only when Fiona Nash starts waving around a bloody, dripping haggis that everyone shrieks, "Oh, my God! How did she get in here?" I scoffed at this dual process en passant during my column on the bike-path jihadist, and was promptly taken to task by one of our Aussie readers, who helpfully styles himself "Aussie":

This wasn't a bone headed jurist vote, it was 7-zip in our equivalent of the Supreme Court, and for once it was the black letter of the law. The Australian constitution clearly states you cannot be elected to parliament if you hold allegiance to any other country. So these people who had dual citizenship had no right to be in parliament, and they were correctly kicked out. It was the exact opposite of judicial activism.

Let's unpack that a little. What the 1901 Australian constitution "clearly states" is a prohibition against "holding allegiance" not to any other country but to a "foreign power":

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...

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

The key words there are "a foreign power". What does that mean? Well, the Australian constitution is an act of the Imperial Parliament at Westminster, so it seems unlikely, per the above-mentioned Senator Parry, that the English, Scots, Irish and Welsh who passed it intended to categorize themselves as foreigners: As the great Ken Dodd likes to joke, "The French are jealous of us because we're not foreign." In 1901, the peoples of the Empire belonged to a single indivisible category of "British subjects", whether resident in Kingston-on-Thames; Kingston, Ontario; Kingston, Jamaica - or Kingston-on-Murray, South Australia. That's the distinction enshrined in the Australian constitution: non-foreigners are British subjects; foreigners are everyone else. So the same High Court that's just blown up the Australian parliament ruled in 1906:

We are not disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality.

The view of that 1906 High Court prevailed until the 1948 Commonwealth Conference, when it was decided that His Majesty's dominions would each set up their own citizenship as sub-categories within the pan-imperial "British" nationality: Thus the inauguration of Canadian citizenship, United Kingdom citizenship and Australian citizenship. And hence the original name of Australia's 1948 "Nationality and Citizenship Act", the first part of which dealt with British "nationality" and the latter with Australian "citizenship". For example:

7 . — (1.) A person who, under this Act, is an Australian citizen or, by an enactment for the time being in force in a country to which this section applies, is a citizen of that country shall, by virtue of that citizenship, be a British subject.

So, again, in 1948 a "foreign power" meant China, the United States, Ethiopia, Yugoslavia ...but not the ancient sod of the Parry family. When Senator Parry's dad emigrated from Britain to Australia in 1951, he might well have converted to the new two-year-old Australian citizenship, but there was no legal or practical reason to do so. Even if he had adopted Australian citizenship, the Australian passport he would have traveled on was, in fact, labeled a "British passport". Indeed, when Senator Parry was born in Oz in 1960, if he ever traveled as a child on his own Australian passport it too bore the words on the front cover "British passport", until the late Sixties. And even after these Antipodean "British passports" became purely Australian passports, Australia's passport office nevertheless continued to issue passports to non-Australian British subjects resident in Oz (from the UK, Canada, New Zealand, India, Malaysia, Jamaica, you name it) until 1984.

So for the first 83 years of federation Barnaby Joyce's New Zealand, Fiona Nash's United Kingdom and Larissa Waters' Canada were overseas powers but not "foreign" powers. That reflects both the intention of the drafters of Section 44 and the lived reality of Australians: for example, five years ago, Aussies had a political choice between a Prime Minister born in Wales and a Leader of the Opposition born in England.

What changed? Well, a couple of ill-considered High Court decisions (particularly the 1999 Hill case) transformed the plain meaning of the law into a shrunken reductio of its former self. The latest bizarre ruling by the Australian High Court now goes into excruciating case studies on each of the tainted semi-aliens. For example, Larissa Waters:

94. Ms Waters was born in February 1977 in Winnipeg, Canada to Australian parents who were living in Canada at the time for study and work purposes. Neither was a permanent resident of Canada. Ms Waters' birth was registered with the Australian High Commission in Ottawa in June 1977. It was not in doubt that Ms Waters was an Australian citizen by descent. In January 1978, as an infant aged 11 months, Ms Waters left Canada with her parents, who were returning to live in Australia.
95. Ms Waters has never held a Canadian passport. She has not visited Canada since leaving it in January 1978. She has always considered herself to be an Australian and has never understood that she owes allegiance to any other country. She has not sought or received consular assistance or any other kind of government assistance from Canada and she has not exercised any rights as a Canadian citizen. Her mother had given her to understand that she would be eligible to apply for Canadian citizenship when she turned 21. On turning 21 in 1998, Ms Waters considered applying for Canadian citizenship but she decided against it.

As it happens, Larissa Waters or any other Australian citizen is fully entitled to "seek or receive consular assistance" from Canada under the Canada-Australia Consular Services Sharing Agreement. So, depending where she is on the map, she could pick up an Australian passport at a Canadian embassy or a Canadian passport at an Australian embassy: that's how "foreign" they are to each other. Nevertheless, the High Court, while accepting that Ma and Pa Waters were merely Aussies passing through Canada for a few months, ruled that Ms Waters was unlawfully sitting in Parliament. Incidentally, this means also that her votes were unlawful.

On the other hand, the High Court acquitted one of her fellow semi-aliens because, although his dad was born in British Cyprus, Nick Xenophon is merely a British Overseas Citizen, which status confers no right of abode in the United Kingdom:

A person who is registered as a BOC is not required to pledge loyalty to the United Kingdom. This is by way of contrast with the pledge that is required of a person who is registered as a British citizen. Mr Fransman considers that a BOC does not owe loyalty to the United Kingdom per se but that he or she does owe loyalty or allegiance to Her Majesty the Queen. He does not express a concluded view on whether the allegiance is owed to Her Majesty at large or to Her Majesty in right of the United Kingdom, although he inclines to the latter view. The position with respect to Senator Xenophon is less clear in light of a change in practice. Mr Fransman assumes that the duty of loyalty of a person who became a BOC by reclassification on 1 January 1983, as Senator Xenophon did, is the same as the duty of loyalty of a person who registered as a BOC under the BNA 1981. Mr Fransman considers that, while today an Australian citizen registering as a BOC would be required to take an oath to Her Majesty in right of the United Kingdom, under previous practice this would not have been required because an Australian was already a citizen of a country of which the Queen was Head of State. While the date of the change in practice is not stated, as at the date Senator Xenophon was reclassified it appears that had he applied to be registered as a BOC he would not have been required to take an oath of allegiance to Her Majesty the Queen in right of the United Kingdom.

Is this beginning to sound to you like bollocks on stilts? In breezily redefining Section 44 to mean a citizenship that was invented half-a-century after the law was written and whose anomalies and ambiguities persisted for another third-of-a-century after that, the modern High Court was engaging in a characteristic bit of post-colonial hyper-nationalism that has had the paradoxical effect of forcing not only the judges but the entire Australian political system to swear "allegiance to a foreign power". It's like instituting Nuremberg racial purity laws and then outsourcing their administration to random bureaucrats around the planet. As the contrasting treatments of Ms Waters and Mr Xenophon demonstrate, non-Australian laws now get to determine whether you're eligible to sit in the Australian Parliament: If Canada were to introduce the category of "Canadian Overseas Citizen" and "reclassify" Ms Waters, why, her tenure in Canberra might be retrospectively legitimized. Conversely, if the United Kingdom were to re-reclassify Mr Xenophon (as it did for example citizens of dependent territories in 2002 when it restored their right of abode in the UK), then he'd be liable to be kicked out all over again. Alternatively, Kim Jong-un could simply pronounce all seven billion people on the planet North Korean Overseas Citizens, and there'd be no one on earth allowed to stand for election in Australia. Go for it, Rocketman!

As for Barnaby Joyce, perhaps the easiest solution would be for him to move to London, where, as an Australian or a New Zealander or both, he's eligible to stand for the British Parliament. Through the long years of Euro-tyranny, that seemed like a quaint imperial anachronism. But, in fact, it's less insane than the Australian High Court's micro-management of the subtleties of allegiance of "British Overseas Citizens". In the UK, Commonwealth citizens are not in law "aliens". Whereas in Australia everyone's a potential alien mainly in the sense of that John Hurt chestburster scene in which you can be as Aussie as can be chugging along all ticketty-boo and then some creepy Welsh midget great-uncle bursts through your rib cage and leaps out.

In this absurd controversy, you find the same reality-denying psychosis of the US Diversity Lottery, under which this week's Bike Path Jihadist and 23 of his family were admitted to the United States because, for all its vibrant diversity, America was perceived to be coming up short on Uzbeks. There are some 200 countries in the world, and in the west we are no longer allowed to distinguish between them: So, for example, Sweden is supposed to pretend that Somalis and Afghans are no harder to assimilate than Finns and Danes, and likewise Australians are supposed to pretend that entirely notional New Zealanders in the Senate men's room are more foreign than eager decapitators of the new Caliphate in Sydney suburbs.

Repeal Section 44 [clarification: by referendum] and end this perverted casuistry. Or do as Tony Benn did when his viscountcy made him ineligible for the House of Commons: stand, and stand again, and make the issue one of the law's subversion of the people's choice. If that's not too "foreign" an analogy...

UPDATE! Energy Minister Josh Frydenberg is worried he might be accidentally Hungarian. So the insanity continues: You don't have to be Magyar to work here, but it helps...

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