The view from Billinudgel

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Section 44 of the Constitution is not an adequate way of gauging allegiance to Australia

Another fine mess the Constitution has got us into.

Section 44 – the bit that deals with the eligibility or otherwise of members of parliament – is archaic, confusing and utterly inappropriate to the reality of today’s Australia.

According to one estimate, some four million of our citizens cannot stand for federal office. And if we are to take the provisions literally, the absurdities are, simply, untenable; we bar dual citizenship from the parliament, but the head of it – the Queen of England, one who presides over ceremonial openings when she happens to be in the country – is not only a dual but a multiple citizen.

And as for barring those who hold any office of profit under the Crown – at face value that would include not only public servants and various private citizens who are involved in government in some form or another, but also parliamentary backbenchers themselves – absurdly, section 44 exempts “the Queen’s ministers of state” but not the rank and file.

However, when it comes to dual citizenship, the Constitution is silent about ministers, which means that Matthew Canavan’s much-applauded gesture in resigning from cabinet is utterly irrelevant – the only question is whether he was elected properly in the first place. And it will apparently take months to determine this in the High Court, with the likelihood that others will be caught up in the same constitutional net.

Obviously it was not meant to be like this: our venerable founding fathers (well, actually, ambitious, conniving, compromising colonial politicians, but let’s observe the usual fulsome description) were exclusively concerned not with Australianness but with Britishness. It was all about loyalty to the mother country and keeping potential intruders – French, Russians, Americans, and of course all the lesser breeds – as far away as possible.

And there is very little wriggle room in the wording: either you’re in or you’re out. Canavan’s invocation of the Shane Warne defence – Mummy gave it to me – and Malcolm Roberts’ assertion that, against all the evidence, he always chose to believe he was Australian – a claim only slightly less deranged than Malcolm Turnbull’s declaration that the laws of mathematics must give way to Australian law – are amusing but hardly the point.

The High Court has permitted a little leeway: if someone has taken all reasonable steps to revoke their previous citizenship, they may be in the clear. But there are an awful lot of ifs and buts in that judgement.

So now even the conservatives, who traditionally regard the Constitution as Holy Writ, are agitating for change. It is most unlikely to happen; proposing a referendum he may easily lose is not the kind of distraction Turnbull needs. And from the public-interest perspective, it misses the real issue, which is the one of genuine allegiance to the country, not the outdated provisions that purport to enforce it.

No one believes that Canavan, Scott Ludlam, Larissa Waters or even Roberts is a fifth columnist. We should be far more worried about MPs who openly proselytise for foreign interests: Sam Dastyari in China and Michael Danby in Israel spring to mind, but there are plenty of others who are passionate about supporting America at all costs, or kowtowing to Britain. Think of the former Pom Tony Abbott’s knighting of Prince Philip.

Then there are those who place their religious convictions against the laws of their country: we may not have any Muslims spruiking sharia in the parliament but there are a lot of Catholics who regard the edicts of the Vatican as transcending secular statutes. So section 44 is long past its use-by date.

But it is only the tip of an enormous iceberg, a threat to navigation for the ship of government. There are numerous sections whose effects were not – could not have been – predicted 120 years ago, and they should be amended or removed.

But the catch is that those same founding fathers made it as difficult as possible to unscramble what is now a very smelly omelette, and the already beleaguered Malcolm Turnbull is not the one to attempt the task. He’s tried one referendum and lost, and that’s enough. Just muddle on, chaps.

Mungo MacCallum

Mungo MacCallum is a political journalist and commentator. His books include Run Johnny Run, Poll Dancing, and Punch and Judy. Visit his blog, The View from Billinudgel.

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