Disregard for the (s44) rule of law: Time for a complete citizenship audit

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(Cartoon by Mark David / @mdavidcartoons)

If Government ministers respect the rule of law as they profess to do, they shouldn't have a problem with a full Section 44 audit to determine the citizenship of all Australian Government representatives, says Noely Neate

I HAVE TO ADMIT, I am finding the relaxed attitude of many commentators in relation to breaches of Section 44 (i) of the Australian Constitution very puzzling. 

So many of these same people were screeching in horror when ACTU Secretary Sally McManus stated she had no problems with workers breaking "unjust laws".

In fact, “rule of law” became a catch cry for many, particularly on the Conservative side of politics, but there was also screeching from Opposition Leader Bill Shorten and the ALP for Ms McManus' so-called “disregard of the rule of law”.

McManus was talking about unjust laws and she gave very good examples as to exactly what she meant.

However, Section 44 (i) of the  Commonwealth of Australia Constitution Act is not unjust.

It simply states that a person can’t be a "candidate" for Federal Parliament if they are in breach of the following:

Any person who:

  1. is under any acknowledgment 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;

There are pretty good reasons for this law and it is not unrealistic to expect that someone who wants to makes laws for and decisions on behalf of the Australian public should only have allegiance to Australia.

I know many think this is archaic, but it is the law – like it or not – and must be adhered to.

I admit, I was not happy to see Senator Larissa Waters and Senator Scott Ludlam resign due to this law — particularly in the case of Waters, where she honestly believed she had complied. Waters (and her parents) were under the impression that Canadian citizenship was only an option for her should she choose to apply for it prior to turning 21 and, as she chose not to do so, she believed she was complying with Section 44(i). If her birth in Canada had been only one week later, she would have been correct.

Though I’m unhappy to see this pair leave the Senate, especially Ludlam – as we need his interest and knowledge in privacy and data retention in these days of government attempting to defy the laws of mathematics to spy on us – the fact is, they were in breach of the law when they stood for the Senate. They were dual citizens. They had to respect the law and resign — and they did! In fact, instead of being scorned by the Government, they should be applauded for having the integrity to do the right thing.

Senator Matt Canavan, on the other hand, is also now in breach of the very same law. Even if we believe his #WarnieDefence and fully accept that his mum not only signed him up for Italian citizenship without his knowledge but also didn’t pass on any mail from Italy – such as three sets of voting forms – over the last decade, it doesn’t matter.

The law does not care about ignorance, the law doesn’t care if someone else has screwed you over or made a mistake.

As Mr Canavan himself confirmed when he stood down from cabinet, the Italian Government had told him he was an Italian citizen — hence a dual citizen. How standing down from cabinet until he sorts it out with the High Court is respecting the law is beyond me but, rightly or wrongly, Matt Canavan was a dual citizen at the time of standing to be a candidate for the Senate. He is ineligible to sit in the Senate and vote. Full stop.

Look, I’ll be honest, I'm only half cranky about this situation due to respect for the law, but then, knowing many in the Government may also be dual citizens due to lineage alone, I also think: “take those unintended consequences, suckers!”

This Coalition Government, in particular, has changed so many laws. The odious so-called national security changes alone make all citizens suspects. These laws enable the scooping up of all our data — there are no laws to protect us from abuse of those laws, or from accidental security breaches of our data.

Basically, there was no consideration of unintended consequences that could harm us punters. We are supposed to just cop these changes, which in many cases put us in more danger because we are supposed to just trust the Government and, of course, trust whoever the Government gives that data to. Well, I don’t trust the Government, nor do I trust George Brandis and I’m still angry that both sides of government just squealed “Keeping Australians safe”, without a thought for unintended consequences for the public.

Centrelink and the #NotMyDebt fiasco

The Government has not cared about the unintended consequences here for innocent victims being harassed for debts they do not have or may have accidentally incurred. Minister for Human Services Alan Tudge seems to feel that 20% of these people being incorrectly accused is an acceptable attrition rate for clearing up all Centrelink debts and putting some money back into government coffers for the "greater good". The fact that this 20% statistic represents real people, with real life consequences, has not prompted government sympathy.

Following Mr Tudge’s logic, since there is most likely a "percentage" of MPs and Senators who are in breach of Section 44(i), if 20% of our MPs and Senators have to resign to ensure the whole of government is abiding by Section 44(i), well so be it. It is for the "greater good".

The bizarre case of Senator Lisa Singh is a good example of the percentage of Government that may also be affected.

Lisa Singh was born in Australia, her dad was born in Fiji, but due to odd rules at the time he was born, he was considered a British citizen and that was conferred upon her, totally unbeknownst to her. So it proves you do not need to have been born overseas for this section of our Constitution to apply.

This is true for Canavan and his High Court fight. Yeah, he may not have known he was a dual citizen, but this is surely just ignorance of the law and should not garner sympathy.

In the Centrelink debacle, many people have lost money, been heavied by debt collectors and so on due to errors people themselves have made, thinking they were "following the rules” or due to outside circumstances like an ex-partner screwing them over — sort of like Matt’s mum supposedly has. Centrelink doesn’t care. You suffer the consequences regardless of the circumstance, the debt stands until you can maybe sort it out months down the track. In the meantime, you still have that debt!

Canavan and any other MP caught up in this Section 44 (i) drama can do the same. Sorry, legally you are a dual citizen (regardless of circumstances) so resign and sort it out yourself further down the track. The Government does give not ordinary citizens the right to keep all our money or entitlements while we "sort out" what we think is wrong.

If our Government wants all of its citizens to respect the law, then they should do so themselves. I want a full audit of ALL OF THEM.

Too many in media are discussing how archaic the law is or whether we need to change the Constitution and so on. This is just a distraction. Changing the Constitution by a referendum is always a drama and, to be frank, it is not that onerous a law!

Yeah, I see how many think it is not a big deal in this modern age to be a dual citizen of New Zealand or Canada, but hell, we can’t have a law that says, yeah, no problem for citizens of countries we currently like. The law doesn’t work that way. I’m pretty sure many saying that would not be so casual about dual citizenship if say, we found we had 20% of Cabinet being dual Russian or Chinese citizens?

Abiding by Section 44 (i) could be made easier by adding something like, "The Australian Government does not recognise dual citizenship in the case of it being conferred on an Australian citizen by a foreign government through no knowledge nor action on behalf of that citizen". Easy. Doesn’t need a change in the Constitution, as you would not be a dual citizen in the first place.

But as it stands we need a full audit. Assurances from MPs and Senators that they were compliant is not good enough. Even if we do trust their assurances – which I do not – they themselves may be misinformed.

And as so many ministers have told us before when it comes to changing laws that make us all suspects: “If you have nothing to hide, you have nothing to fear.”

Yes, an audit will uncover a few more. Yes, we may lose some good MPs and Senators (as we already have) but it would mean the question will no longer linger. We can tidy up the whole Government, ensuring all are compliant. We can have a number of by-elections all at once to get those people replaced. Hell, if these Government representatives are quick enough, they can probably get their citizenship sorted and stand in that by-election themselves as a legit candidate to get their seat back. At least we will know that all our elected representatives are complying with the law.

I’m pretty sure an audit and the repercussions of that audit would ensure it would be extremely rare – and stupid – for any person to be in breach in future. So why not just rip off the band-aid and get the pain of this citizenship drama over and done with?

I have little faith that Malcolm Turnbull will agree to an audit. Even if he and his party did give lip service to the idea, they would argue over the technicalities of who should do it, how and so on. And they wonder why politicians are held in such low regard.

But we need an audit, maybe headed by a retired judge with a posse of immigration lawyers, to scrutinise the status of every single member of both the lower and upper houses. Any found to be in breach at the time of candidacy (regardless of their tenure) should be forced to resign. As I said earlier, there is nothing stopping them getting back in to take their place after they have sorted out their citizenship issue. No backdating. It must be from the date of signing that candidacy form.

We don’t have a Federal ICAC. There is no system that we can rely on to ensure that our government representatives comply with the law, so we can only hold out hope that the fourth and fifth estates will hold the Government to account in regard to such an audit.

Please, I beg of you media, push for this audit. Ignore the politics, Ignore who suggested it, ignore all the political games and ignore any ramifications. 

Read more from Noely Neate on her blog YaThink? or follow her on Twitter @YaThinkN.

Original cartoon by Mark David is published with permission. You can see more cartoons from Mark on his website Mark David Cartoons or follow him on Twitter @mdavidcartoons.

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