Weaponising Section 44: The Australian Constitution and the demise of politics

By | | comments |
(Image CC by Northenglish via Wikimedia Commons)

Until the December disclosure deadline arrives, both sides of politics are using s44 of the Constitution as a weapon to weaken the other side, says Dr Binoy Kampmark.

“These are dangerous times,” claimed ABC political correspondent Andrew Probyn on Sunday morning (12/11/17).  Another member of Parliament had resigned ‒ John Alexander of Bennelong ‒ and the Turnbull Government was facing the prospect of a further diminution of its numbers, even possible loss of office. 

On Tuesday, another revelation made its way through the halls of political punditry.  The colourful, at times irrepressible, Jacqui Lambie, formerly of the United Palmer Party, and subsequent solo flyer in the senate, had discovered that she was a dual citizen through her father. 

As she told Launceston radio:

“I will be resigning from the Senate, it’s been made quite clear that because of my father I am also Scottish.”

While politicians are falling to what can only be deemed a constitutional plague of reckoning, Labor is chortling. Their members have so far remained immune to the dual nationality scandal; immunised, or so the claim goes, by thoroughly onerous vetting procedures.

“We are,” claimed frontbencher Joel Fitzgibbon on ABC radio in August, “entitled to be absolutely confident that we don’t have a problem.” 

Tony Burke was similarly unshakeable in his confidence in the constitutionally proofed nature of Labor’s internal procedures. 

“Before anyone’s allowed to nominate, we have to find the country of birth of their parents and of their grandparents.  And whether their parents or grandparents, to their knowledge, had any foreign citizenship.”

Labor have been growing in confidence and evidently revelling in the prospect of another discomforting month for the government. Hubris, it seems, is starting to set in, inspired by previously fangless efforts by the Coalition Government to throw Labor members to the High Court bench.

In August, the governing Liberal-National coalition, realising the threat posed to their numbers by the eligibility question, began drawing up a list of potential Labor targets. South Australian MP Tony Zappia did not seem the most promising of the quarry, but threats were floated from across the chamber. 

Zappia was born in Italy in 1952, winning the seat of Makin for the ALP in 2004. When suggested as being a possible violator of section 44, Zappia claimed that his Italian citizenship had been laid to rest by the very fact of becoming an Australian citizen. As Italian law disallowed dual citizenship until 1992, the act of acquiring Australian citizenship in 1958 extinguished any pervious allegiances or entitlements. 

“A copy of the Consulate letter,” claimed a defiant Zappia, “has been provided to ALP national office.”

The net was broadened to include the biggest fish. Anthony Albanese felt weary but hardly in any mood to capitulate. 

“The circumstances of my birth are that I had a single parent, there is a single parent legally on my birth certificate.”

The refusal to release documentation for months further excited commentary on the subject.  The Daily Telegraph wondered whether Labor Senator Penny Wong, whose father was born in Kota Kinabalu in Malaysia, might be suspect. Ditto Susan Lamb (Scottish father) and Maria Vamvakinou (Greek-born).

Coalition threats to refer Labor members to the High Court were renewed in the aftermath Alexander’s resignation. The leader of the House, Christopher Pyne, shot one distinct observation at his opposite numbers: the Labor leader, Bill Shorten, had been running “a protection racket for his MPs”.

In one sense, Pyne was crystalline perfect, drawing inspiration from the Constitution itself:

“I just say to Bill Shorten, it is the High Court of Australia and nobody else that determines whether MPs and senators can sit in the Parliament."

True — but when are these taking place?

While these wet lettuce assaults were being formulated and lobbed, Labor and the LNP were chatting behind closed doors.  A phoney war, of sorts, had been developing, with both sides agitating against each other even as they were attempting to hammer out common ground on how to resolve Australia’s gravest constitutional crisis since 1975.

The outcome of the latest discussions left Senator Wong beaming. Before the Senate, she announced that the Government had agreed to Labor’s proposals on the citizenship question to break what had become a farcical impasse.

“The reality is this," said Senator Wong, "the Prime Minister has been dragged kicking and screaming to this point — kicking and screaming to the point of requiring appropriate disclosure.”

Sensing the Government might be losing its appetite to target Labor members with section 44 ordnance, the Senator was delighted to note an LNP-Labor agreement on “a higher standard of disclosure than the government proposes” and the 1 December deadline by which to resolve the crisis:

“I hope that Mr Turnbull had a chat to some of this backbench MPs before he decided to try to blow up the House of Representatives and use his numbers to refer Labor members who’ve sought to renounce their citizenship.”

The looming question, however, remains. Is Labor the party of purity, much like a eugenically well-bred creature immune to ravaging disease, smoothly functioning and well-versed in the Australian Constitution? 

Until an actual referral is made, the question remains large and menacing, to be resolved by one body: the conservative, literalist members of the High Court of Australia.  A form of mutually assured destruction seems to be taking hold, at least until December. 

To see section 44 return to its old form as a weapon of delegitimising force is as much a malady of opportunism as it is a question of principle.

Dr Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge and lectures at RMIT University, Melbourne. You can follow Dr Kampmark on Twitter @bkampmark.

Creative Commons Licence
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License

Monthly Donation


Single Donation


Subscribe to IA. It really is Australian.

Recent articles by Binoy Kampmark
Australia's shameful military ties to Israel under scrutiny after killing of aid worker

The murder of an Australian humanitarian worker in Gaza has again highlighted the ...  
Kategate: How a conspiracy became everybody's business

Recent rumours surrounding the Princess of Wales turned a private matter into a ...  
Assange may be offered plea deal to end suffering

News that Julian Assange may be offered a plea deal by the U.S. remains clouded in ...  
Join the conversation
comments powered by Disqus

Support Fearless Journalism

If you got something from this article, please consider making a one-off donation to support fearless journalism.

Single Donation


Support IAIndependent Australia

Subscribe to IA and investigate Australia today.

Close Subscribe Donate