s44 and the Right to Return — the genie to the bottle

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(Cartoon by Mark David / @mdavidcartoons)

By mobilising the Holocaust defence, Turnbull has ensured the "citizenship debate" now turns entirely on emotional responses — which is a danger to the nation, writes Ingrid Matthews.

As someone who asked the question of whether British-born Tony Abbott is eligible to sit in the Australian Parliament back in 2014, I feel the pain of punters who are tired of the "section 44" story. In those days, we who raised the s44 question were mocked as “birthers” — a nasty distortion, as I explained here.

The issue is not the foreign-born, but renunciation of foreign allegiance. Abbott never disguised a strong sense of allegiance to England. But those who backed Abbott into office studiously ignored eligibility questions. It is fine for Abbott to tweet a renunciation screenshot three years after those questions were raised, yet now we see the entry papers, not of an MP but his mother, published online [deliberately not linked]. We see the Prime Minister demanding Shorten prove his renunciation, which Shorten did.

While the press scour parentage records across the parliament, Turnbull announces "new" disclosure rules that replicate the disclosure statement all Federal parliamentarians have already signed, making his decision as redundant as his leadership. As I write, the major parties have failed to resolve the problem of candidates failing to renounce.

All this is routine hypocrisy, a function of the inherent conservatism of our political and media institutions. But the direction reporters and politicians have taken this story since July 2017 is increasingly ugly. There is the law, sure, but there is also the messaging.

The legal question and its answer

Our Constitution disqualifies from the Federal Parliament anyone with

‘... acknowledgment of allegiance, obedience, or adherence to a foreign power, or [having or entitled to] the rights or privileges of a subject or a citizen of a foreign power.' 

Nothing prevents any Australian born in any country, or whose parents or grandparents were born overseas, from nominating. However, a nominee must take all ‘reasonable steps’ to renounce their foreign connection(s). This test is from Sykes v Cleary [1992] and was upheld by the High Court in the "Citizenship Seven" case.

Attorney-General George Brandis led the government response by claiming the Citizenship Seven case is a "strict" reading. This is the Joyce (and Nash) defence. It downplays the cornerstone of common law systems: doctrine of precedent. In reality, the High Court applied the law – including case law – to the facts before them.

Similarly, Turnbull repeatedly implies that the correct constitutional reading was shrouded in mystery until last month. This is the Parry (and Alexander) defence. But the case law is 25 years old. In reality, the government was hoping the High Court would overturn precedent (which it has full authority to do) to save Barnaby Joyce.

The political messaging, which is dangerous and wrong

That some nominees did not do their homework is a straightforward proposition. But the Coalition response is to make it about being Australian. This is underpinned by white nationalism and Barnaby Joyce intends to fan these messages into flames, which I will come to in a moment.

But first, the pivot on which public debate turned from a semblance of legal logic ("strict" constitutional reading), to politically expedient "passion", was the prime ministerial defence of Josh Frydenberg.

Now, I am the last person on earth to defend Frydenberg. I have zero regard for his politics. Energy policy is a mess. I merely note this: there has never been a Jewish Liberal party member of the House before. Turnbull and colleagues joined a party which had never endorsed Jewish candidates in safe seats. This supports the widespread view that the Turnbull display was invoking the Holocaust for politically expedient purposes. It also suggests the Party has not thought through the implications of the Israeli Law of Return whereas Labor probably has.

My own view of Israel is a rogue nuclear state that daily violates Palestinians in myriad ways – such as water supply "apartheid" – and systematically commits war crimes — such as collective punishment. Nevertheless, Israel is a sovereign nation and, to most of world Jewry (and many others), it is the Jewish homeland and the relevant discussion here is not international law, but Australia-Israel relations (my research on Australia-Israel relations here).

Israeli Law of Return confers entitlement, on Jewish people, ‘to the rights or privileges of a citizen’ of Israel, which is a "foreign power" from the Australian perspective. Thus on that "strict" s44 reading, our Constitution would demand prospective Jewish candidates renounce allegiance to Israel. I strongly suspect this is part of the current major party discussions.

It is unthinkable that Parliament contemplate putting the High Court in the position of reading down s44 to accommodate right of return. Nor could any reasonable person contemplate a process that would effectively disenfranchise Jewish candidates.

A competent leader would have quietly brokered a compromise that the public could accept, if these genuinely sensitive issues were explained properly. But bringing the public along is a prime ministerial skill we have not seen in a long time.

New white nationalism

By mobilising the Holocaust defence, Turnbull has ensured the "citizenship debate" – until now, a paperwork problem – turns entirely on emotional responses. This is the preferred setting of most campaign managers – political, military, advertising – who know we are less individualist than we are taught to believe.

Here is how that is panning out.

In Tamworth, Turnbull declared:

"I don’t know anybody that’s more Australian than Barnaby Joyce, I don’t know any electorate more Australian than New England."

Not Lingiari, home of the Gurindji walk-off and historic handful of sand. Not Canberra, named for Ngunawal Peoples "meeting place" and seat of national government. No, a seat that literally has the word England in it, being contested by a man who has pocketed millions of public dollars for which he was not eligible, is the most Australian.

Meanwhile, Joyce told Sky News "how people see it is if you're born here you are an Australian". But we deport refugee babies. What jus soli is this? On Insiders, Mark Kenny sang from the same songsheet, asking "what could be more Australian than Barnaby Joyce?"

Oh, I don’t know... Fanning white nationalism for political gain?

In the Daily Telegraph anonymous ‘cabinet ministers expressed concerns MPs of Greek and Italian [sic] could be the first under threat…’. But Canavan was cleared of Italian citizenship rights and Xenophon was cleared because he renounced Greek citizenship rights. So why the "fears" about Italians and Greeks?

Then there was Craig Laundy, telling ABC radio he wants a referendum because

"... in my electorate I've got 320 nationalities represented. If we trade with those 320 countries, Australia grows."

He made up 140 countries to defend the legitimacy of MPs of British descent.

The AM reporter commented:

"... there are concerns the strict ruling would make it harder to attract multicultural candidates in the future."

Concerns about "multicultural" candidates? Why? Every disqualified MP is a white person who failed to check their connections to Commonwealth countries.

Finally, there is the book Joyce is writing on "the social opprobrium attached to poor white people in Australia's towns and regions".

Peter Hartcher quotes:

"A lot of it will be politically incorrect — I want to shock…. To give greater economic and personal advancement to the people in the weatherboard and iron in the regional towns."

Politically incorrect? Weatherboard and iron? Poor whites?

Joyce is unashamedly channelling the Trump narrative, even though Trump was bankrolled by rich whites, and elected by comfortable whites, and the poor white rural rust belt myth has been debunked again and again, including by the Washington Post. Hartcher in the era of Trump called Joyce’s project ‘respect for the people who live outside the big cities and feel overlooked’. The headlined shouted ‘shrewd tactic of Barnaby Joyce’ but this is not shrewdness. It is dangerous.

This is how contemporary Australian white nationalism works: in the name of "equality", we reject the consensus-based proposal for an Indigenous Voice to Parliament. In the name of "multiculturalism", we defend white people who fail to do due diligence as true Australians mate. In the name of investigative journalism, we publish the refugee documents of a Holocaust survivor. The debate will get anti-Semitic, because it always does. The political classes and political media will not, because they can not, put it back in the bottle.

Just don’t say nobody told ya.

Ingrid Matthews is a sessional academic who teaches law and human rights. You can follow Ingrid on Twitter at @iMusing or via her blog oecomuse.

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