February 2018

Comment

Decoding the dual-citizenship crisis

By James Boyce
Australia’s founders would be shocked at today’s interpretation of the Constitution

It is no coincidence that every one of the nine parliamentarians who have so far had to resign because of dual citizenship are citizens of the United Kingdom, New Zealand or Canada, and most of the outstanding cases causing consternation are also fellow subjects of the Queen.

From 1948 to 1982 all Australians were dual nationals of a sort – everyone was both an Australian citizen and a British subject, and before this time we had no official nationality but British. When the UK, New Zealand, Canada and Australia jointly decided to create their own national citizenship after World War Two, they also agreed to preserve a shared legal identity, and Australians travelled on British passports until 1963. This was not an imperial compromise (the negotiations were undertaken by Ben Chifley’s Labor government and an even more left-wing Labour government in the UK) but an expression of full sovereignty based on a common allegiance to the Crown.

It has been widely stated that last October’s High Court ruling is a literal reading of the Constitution. Whatever the judgement’s legal worth (and given the wide divergence of opinion, including from the solicitor-general, this seems to be no straightforward matter), it is certainly not that.

The men who wrote the Australian Constitution would be shocked at how section 44 is now being interpreted. It is not that the nation’s founders couldn’t have imagined that Australia might have broken all ties with the UK 120 years after the Constitution was drafted. Indeed, the republican debate was probably more animated and better informed in the 1890s than it was to be in the 1990s. Rather, they would not be able to comprehend how fellow subjects of the Crown could be assumed to be under an “acknowledgment of allegiance, obedience, or adherence to a foreign power” while Australia had a largely unchanged Constitution that still had the Crown at its heart (and in every other metaphorical organ). The first words of the sacred text set the tone: the people of Australia “have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland”.

The Constitution is clear that “the executive power of the Commonwealth is vested in the Queen”, and section 42 requires that parliamentarians swear to “be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors, according to law”. No literal reading of section 44 could exclude Australian citizens from parliament simply because they were also a subject of the monarch in one of her other realms. The test of loyalty to the Australian nation in the Constitution is allegiance to the Crown.

I know that constitutional law is a specialised field that ordinary citizens are not qualified to comment on. I realise that it relates not just to the original Constitution but also to subsequent judicial interpretation and legislation, the total effect of which has been the severance of almost all legal ties with the UK and a differentiation between the concept of the Crown and the actual monarch. We now have, at least in theory, a divisible Crown with separate realms – meaning that Elizabeth II is the Queen of Australia, distinct from her being Queen of the United Kingdom, New Zealand or Canada. But this is not a straightforward issue (given the Queen is still one person!), and it is naive to suggest that how the law is interpreted bears no relation to how history is understood.

The process by which Australia became independent from the UK is a story of almost imperceptible shifts that have proved difficult to convey. Inevitably, the focus is on landmarks such as the Statute of Westminster 1931, which afforded Australia full statutory independence, or John Curtin’s turning to the United States in Australia’s hour of need. The problem is that these moments distort the story as much as illuminate it. The Australian parliament did not ratify the Statute of Westminster for more than a decade, and even then it was to allow “for the more effectual prosecution of the war in which His Majesty the King is engaged”. And it was Curtin who, at the 1944 Commonwealth Prime Ministers’ Conference, pushed to establish instruments for a common defence policy, and was to appoint the King’s brother to be governor-general. Gough Whitlam was a monarchist before the Dismissal, albeit rebadging the monarch as the Queen of Australia. What’s more, the Australia Act 1986, which severed almost all remaining legal ties with the UK, did nothing to change the centrality of the Crown in the Constitution.

Because it is so difficult to communicate the Australian journey to independence, loyalty to the monarch has widely come to be seen as a mere hangover from colonial times. I sympathise with this sentiment. As a historian, I am cognisant of the suffering and snobbery inherent in the idea and practice of monarchy and empire. Nor can I see how the Queen of the United Kingdom can be reimagined in a culturally meaningful way as the Queen of Australia. I don’t question the prevailing paradigm because I am a supporter of the monarchy but because it is an incorrect reading of history.

Loyalty to the Crown was not opposed to the dominant form of nationalism expressed in Australia but integral to it. Allegiance to the Crown was not a barrier to achieving independence but the primary means by which it was achieved. Those who supported an Australian identity grounded in loyalty to the Crown were no less patriotic than republicans. Regardless of one’s politics or preferences, the reality is that the nation-builders who emerged triumphant from the ideological struggle of the 1880s, and who would be dominant on both sides of politics at least until the 1960s, had the Crown at the centre of their understanding of Australia.

While a legal break with the UK was not realised in 1901, most of the founding fathers looked forward to this occurring, and no change was required in the document they wrote when it did. These men were nationalists committed to ending a colonial identity. Their idea of the empire (which was supported by many in Britain, not least the secretary of state for the colonies, Joseph Chamberlain) was for it to be a community of equals. Each independent realm was to remain bound by the familial ties and cultural values embodied by the monarch. This vision was realised with the passing of the Statute of Westminster, whose preamble notes that members of the British Commonwealth of Nations remained “united by a common allegiance to the Crown”. Of course there were small-minded royalists (just as there were narrow-minded republicans), but these men did not write the Constitution. The document was a triumph of an idealistic view, which saw the Crown as embodying principles and freedoms that the historian Alan Atkinson has called the national conscience. The Queen expressed this ideal in her 1953 Coronation Day broadcast, in which she emphasised that the “living principles” of “parliamentary institutions, with their free speech and respect for the rights of minorities”, were “as sacred to the Crown and monarchy as to its many parliaments and peoples”. It’s a sad reflection of our times that the Queen’s speech now reads as strangely subversive.

It is true that the commitment to Australia being a white nation was taken for granted by the founding fathers but this was true of all sides in the debate, including the overwhelming majority of republicans. While notions of empire, race and nationhood generally reinforced one another, the focus on the Crown could also subvert monolithic racist thought. The comparison between what section 44 meant in 1947 and what it means today illustrates the point. There are fewer than 15 million people now eligible to sit in the Australian parliament. But 70 years ago, there were close to half a billion people who shared the same nationality as Australians. Fellow British subjects were spread from the Himalayas to the Kalahari. Of course, restrictive immigration laws prohibited most of these people from coming to Australia, but they were not barred from parliament by their citizenship.

The central place afforded to the Crown in the Constitution means that the founding fathers’ sense of Australia was in one respect larger than ours. The bigotry of prominent monarchists has obscured the fact that the emphasis placed on allegiance to the Queen meant that loyalty to Australia was not to be defined only by boundaries and borders. This contrast has become more pronounced in recent decades, as what it means to be “Australian” has become ever more rigidly defined.

In the republican debate of the late 20th century, former High Court justice Michael Kirby argued for the retention of the monarchy largely on the basis of the advantage of having a head of state who transcended national boundaries. Kirby’s vision of the Crown defined the Constitution and the nation’s distinctive path to independence, but has been virtually forgotten today.

Until the Constitution is changed, the central place afforded to the Crown should remind the High Court, parliament and executive government that loyalty to Australia cannot be rigidly prescribed. In spirit and letter, the current text, for all its glaring shortcomings, subverts the narrow nationalism that increasingly threatens human decency, minority rights and legal freedoms. Because of the danger posed by perverted patriotism, all our national institutions could benefit from more fully engaging with what it has meant to be a subject of the Queen.

The need to honour the legacy of the Crown will be even more important when the Constitution is finally changed. Both the republic and Indigenous recognition debates point to the urgency and opportunity for a comprehensive overhaul that goes far beyond section 44. When all references to the Queen are removed, the republican task will be to sustain an understanding of nationhood that is not narrow-minded or jingoistic. There could be no more appropriate place to begin the task of finding a new way to embed conscience within the Australian Constitution than to overcome the greatest failure of the founding fathers: their racism and neglect of the country’s Indigenous people.

James Boyce

James Boyce is a writer and historian. His latest book is Losing Streak: How Tasmania was Gamed by the Gambling Industry.

February 2018

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