Mikado. Ha! ha! ha! I forget the punishment for compassing the death of the Heir Apparent.
Ko-Ko, Pooh-Bah & Pitti-Sing. Punishment.
Mikado. Yes. Something lingering, with boiling oil in it, I fancy. Something of that sort. I think boiling oil occurs in it, but I’m not sure. I know it’s something humorous, but lingering, with either boiling oil or melted lead. Come, come, don’t fret — I’m not a bit angry.
Ko-Ko. If your Majesty will accept our assurance, we had no idea—
Mikado. Of course —
Pitti-Sing. I knew nothing about it.
Pooh-Bah. I wasn’t there.
Mikado. That’s the pathetic part of it. Unfortunately, the fool of an Act says “compassing the death of the Heir Apparent.” There’s not a word about a mistake —
Gilbert & Sullivan’s Mikado is a staple of both amateur theatres and Australian criminal law classes. Law lecturers routinely quote it (or, in some unlucky classes, sing it) to students because it illustrates a common problem in statutes: drafters’ penchant to ignore people’s minds when they devise rules of behaviour.
A case in point is s44(i) of Australia’s federal Constitution. Most constitutional provisions are about institutional, not individual, behaviour. But s44(i), which determines when otherwise eligible people are disqualified from Australia’s federal parliament, states:
Any person who: (i) 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; … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
This provision duly identifies a situation the drafters wanted to avoid – a person with certain status in a foreign country in a position of (legislative) power in Australia – but says nothing at all about what (if anything) is going on inside the mind of that person.
Ko-Ko, Pitti-Sing & Pooh-Bah. No!
Mikado. Or not knowing —
Mikado. Or having no notion —
Mikado. Or not being there —
Mikado. There should be, of course —
Ko-Ko, Pitti-Sing & Pooh-Bah. Yes!
Mikado. But there isn’t.
Ko-Ko, Pitti-Sing & Pooh-Bah. Oh!
Mikado. That’s the slovenly way in which these Acts are always drawn. However, cheer up, it’ll be all right. I’ll have it altered next session.
The central holding of Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon  HCA 45 is that s44(i) means exactly what it says and what it doesn’t say:
Section 44(i) does not say that it operates only if the candidate knows of the disqualifying circumstance. It is a substantial departure from the ordinary and natural meaning of the text of the second limb to understand it as commencing: “Any person who: (i) … knows that he or she is a subject or a citizen …”
The High Court unanimously rejected suggestions from the parties to the seven references before it that it read requirements of voluntariness (the Attorney-General’s suggestion), wilfulness (ex-MP Barnaby Joyce’s) or constructive knowledge (the Green ex-Senators’) into s44(i).
So much, so constitutional, you may say. But reading in words (aka ‘implications’) into constitutional provisions is very standard constitutional fare. Implications were the entire basis of the High Court’s decision landmark decision a week before the Citizenship 7 case, striking down some Tasmanian anti-protest laws. As well, given that s44(i)’s accepted purpose is to avoid an MP’s dreaded ‘split allegiance’ between Australia and some other nation, some sort of knowledge requirement (constructive, actual, whatever) of that foreign link would make a lot of sense.
The case for reading in a mental requirement into s44 is especially strong because the provision doubles up as something close to a criminal offence, complete with its own (initial) penalty provision:
46 Penalty for sitting when disqualified Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.
As all criminal law students learn, Australian courts routinely read mens rea requirements into criminal offence provisions, applying either general criminal codes (often based on one drafted by Samuel Griffith, one of the Constitution’s drafters) or a detailed system set down by the High Court itself in a 1985 drug offence decision. So, Australian criminal law lecturers use The Mikado to illustrate exactly how criminal offences aren’t interpreted by Australian courts.
The High Court has now unanimously ruled that The Mikado is good law when it comes to s44. ‘Mistake’, ‘not knowing’, ‘having no notion’, even ‘not being there’ (like now ex-Senator Fiona Nash, who has never been to the United Kingdom but has nevertheless lost her elected position and career because of her citizenship there) are no excuse under s44(i). Australian criminal lawyers label this ‘absolute liability’. No mistake or ignorance, no matter how reasonable, understandable or genuine, makes the slightest difference to s44’s application. As Yoda instructed young Skywalker: ‘do or do not, there is no try’. As Luke didn’t ask, why?
Mikado. The idiot who, in railway carriages, scribbles on window panes, we only suffer to ride on a buffer in Parliamentary trains. My object all sublime I shall achieve in time— to let the punishment fit the crime, the punishment fit the crime; And make each prisoner pent unwillingly represent a source of innocent merriment, of innocent merriment!
Earlier this year, the High Court pronounced two other Senators ineligible for election under different paragraphs of s44, a punishment that in no way fit their respective crimes (having a tussle over some keys, taking out a lease.) The Court’s mantra then as now was the need for ‘order and certainty in the electoral process’ :
[T]o accept that proof of knowledge of the foreign citizenship is a condition of the disqualifying effect of s 44(i) would be inimical to the stability of representative government. Stability requires certainty as to whether, as from the date of nomination, a candidate for election is indeed capable of being chosen to serve, and of serving, in the Commonwealth Parliament. This consideration weighs against an interpretation of s 44(i) which would alter the effect of the ordinary and natural meaning of its text by introducing the need for an investigation into the state of mind of a candidate.
Investigation leads to uncertainty. Uncertainty leads to instability. Instability leads to… inimicalness.
The Court identifies two sorts of uncertainty. One is ‘practical’:
The practical problems involved in applying the standard for which Mr Joyce MP and Senator Nash argue would include the difficulties of proving or disproving a person’s state of mind. Not the least of these difficulties would be the regrettable possibility of a want of candour on the part of a candidate or sitting member whose interests are vitally engaged. And during the fact-finding process the entitlement of the member to continue to sit in Parliament would be under a cloud.
This concern is familiar ground for criminal law students, one of whom always raises a hand during the first class on mens rea to ask how anyone can prove what is in someone else’s mind. The answer is that our entire lives and society rest on our ability to draw reliable inferences about people’s thoughts. And the criminal justice system is testament to courts’ ability to make firm findings about mental states, typically ones far more transient, more extreme and less evidenced than anything that would ever trouble the Court of Disputed Returns (and often carrying much more severe consequences.) When (now) former Senator Malcolm Roberts testified before the Court (to observers’ ‘innocent merriment’), Justice Keane had no trouble making confident findings that he knew of his pre-1974 citizenship status and a’substantial and real prospect’ of his dual citizenship (with no need to doubt his sincerity.)
The Court’s other concern is ‘conceptual’:
[T]he state of a person’s knowledge can be conceived of as a spectrum that ranges from the faintest inkling through to other states of mind such as suspicion, reasonable belief and moral certainty to absolute certainty. If one seeks to determine the point on this spectrum at which knowledge is sufficient for the purposes of ss 44(i) and 45(i), one finds that those provisions offer no guidance in fixing this point.
This too is familiar ground in criminal law, with courts routinely filling in the gaps in offence provisions, drawing on a range of well-established alternative fault standards and the usual tools of statutory interpretation. Even when courts make the rare finding that a provision is one of absolute liability, they nearly always insist on a requirement for voluntariness for all conduct, including states of affairs like citizenship. Just a week before the Citizenship 7 decision, the High Court itself insisted in its Koani judgment that criminal responsibility ‘under the Code, as under the common law, cannot be founded upon an unwilled act’, even a negligent one. And yet, the same Court casually dismissed the Attorney-General’s straightforward suggestion of a similar voluntariness requirement for s44(i) as depending ‘upon the unstable distinction between overt voluntary acts and conscious omissions.’
Instead, the Court adopted ex-MP Tony Windsor’s submission that ‘the operation of the constitutional guarantee of single-minded loyalty provided by s 44(i) should not be made to depend upon the diligence which a candidate brings to the observance of the provision’. But, as every criminal law student soon learns, incorporating responsibility requirements usually reduces, rather than increases, a provision’s uncertainty.
Consider the case of Senator Matthew Canavan, who was pilloried in the media for blaming his predicament on his mother’s application for citizenship. The expert evidence put before the High Court doubted that his mother’s paperwork (for registration as an Italian citizen abroad) had any effect on anyone’s citizenship. Rather, ‘on one view’ Canavan had always had Italian citizenship due to the retroactive effect of a Italian ruling three years after his birth. But on ‘another view’, ‘the more reasonable interpretation of Italian law, in line with the adoption of “the subjective conception of citizenship” under the Italian Constitution’, is that he only ever obtained a ‘potential citizenship’ that required voluntary ‘activation’. The High Court threw up its hands, concluding that ‘one could not be satisfied that Senator Canavan was a citizen of Italy.’ Nor could one be satisfied that he wasn’t.
In contrast to the unknowable issue of Canavan’s actual citizenship status, there was no doubt at all about what he knew of that status. The Court observed that it was uncontroversial that ‘[b]efore 2006, it had not occurred to Senator Canavan that he or his siblings might be Italian citizens’ and that after that date, he deliberately declined to follow his family in seeking registration. In his case – and, I’d suggest, in many cases involving difficult legal systems – a subjective test is a much more certain basis for someone’s ‘split allegiance’ than the legal test the current Court has adopted in the name of stability.
Pooh-Bah. Our logical Mikado, seeing no moral difference between the dignified judge who condemns a criminal to die, and the industrious mechanic who carries out the sentence, has rolled the two offices into one, and every judge is now his own executioner.
Nanki-Poo. But how good of you (for I see that you are a nobleman of the highest rank) to condescend to tell all this to me, a mere strolling minstrel!
Pooh-Bah. Don’t mention it. I am, in point of fact, a particularly haughty and exclusive person, of pre-Adamite ancestral descent. You will understand this when I tell you that I can trace my ancestry back to a protoplasmal primordial atomic globule. Consequently, my family pride is something inconceivable.
The least edifying part of the very unedifying public debate about the Citizenship 7 is the recurrent claim that the entire crisis is due to seven MPs’ failure to ‘do their homework’. The seven High Court justices, none of whom have ever faced any ancestry-based test to qualify for any of their occupations, parroted this position in their judgment:
[W]hile it may be said that it is harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question; the nomination form for candidates for both the Senate and the House of Representatives requires candidates to declare that they are not rendered ineligible by s 44.
In my own online debates with the ‘do your homework’ brigade, I’ve observed that those making such claims are rarely born overseas and none seem to have parents born outside of the developed world. All of the present High Court were born in Australia, as were all but five of their predecessors. The late Sir Ninian Stephen, born in Oxfordshire, was the lone naturalised Justice. Three early judges emigrated from Wales and Ireland (each serving before the advent of Australian citizenship), while Heydon J was born to an Australian in Canada (just like now ex-Senator Larissa Waters was, four decades later.)
I’m fortunate to have never contemplated nominating for elected office. But, like many Australians, the recent debate has caused me to ponder my own status under s44(i). Despite being born in Sydney and long assuming that I was exclusively an Australian citizen, my eligibility for election to my own nation’s Parliament proves to be quite a puzzle.
The simplest half of the puzzle is my father’s birth as a German citizen in Frankfurt in the 1930s. Thanks to Adolf Hitler, whose 1941 Eleventh Decree to the Law on the Citizenship of the Reich stripped my Jewish father of his citizenship years after he arrived in Australia, I am certain I’m no German.
But there is a complication: Article 116(2) of Germany’s Basic Law provides that people in my father’s position ‘and their descendants, shall on application have their citizenship restored’. Although I haven’t applied, it seems arguable that I am nevertheless ‘entitled to the rights or privileges of a subject or a citizen of a foreign power’ (a phrase that the current High Court says is part of the same ‘limb’ as s44(i)’s ban on foreign citizens.) This interesting legal question can only be tested if someone like me is first elected as an MP and then has her eligibility challenged in the Court of Disputed Returns.
The trickier part of the puzzle is my mother. She was born during World War Two somewhere on the Soviet side of the front. However, precisely where in the former Union she was born (and hence her potential current foreign citizenship in a former Soviet Republic) is something that only my long-dead grandparents know for sure. My mother obviously can’t confirm her birthplace with any certainty. Her earliest memories are crossing countless borders as a war refugee. (My grandparents themselves were very vague about the details and timelines of their respective wartime ordeals. It is obvious that they were awful.) While none of these facts concern me at all, every single detail would be crucial to determining my current eligibility under s44(i).
The current High Court’s judges (some of whom would also be my future electoral executioners) saw fit to smugly declare:
It is necessary to bear in mind that the reference by a house of Parliament of a question of disqualification can arise only where the facts which establish the disqualification have been brought forward in Parliament. In the nature of things, those facts must always have been knowable. A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the Parliament.
But, if I was ever elected to a very narrowly divided parliament, then there would be a good many people with much better resources and motivation than me to solve the mystery of my citizenship. Somewhere, there may be an old Soviet record, or a wartime refugee camp form, or a surviving acquaintance of my grandparents, or a genetic link to some ‘atomic globule’ in Central Asia, that could belatedly confirm me as a citizen of one of a potential dozen or so nations, each with their own highly complex and shifting citizenship laws. My own ignorance of these matters (no matter how diligent my personal search) would be absolutely irrelevant to my future eligibility,. So holds Re: Canavan.
And for me to do my constitutional ‘homework’ would, at a minimum, be punishingly expensive, much more so than the truly ridiculous sums that Sam Dastyari had to pay to (probably) rid himself of his Iranian citizenship. Worse, there is every likelihood that I would be unable to ever be sure that I wasn’t a foreign citizen, much less satisfy any party contemplating nominating me. The likely result of any ‘serious reflection on the question’ of my eligibility is that nominating me would not be worth the risk. And I am hardly an unusual case (outside of the ‘came with the First Fleet‘ set, that is.)
Ko-Ko. What are you talking about? I can’t execute myself.
Pooh-Bah. Why not?
Ko-Ko. Why not? Because, in the first place, self-decapitation is an extremely difficult, not to say dangerous, thing to attempt; and, in the second, it’s suicide, and suicide is a capital offence.
Pooh-Bah. That is so, no doubt.
Pish-Tush. We might reserve that point.
Pooh-Bah. True, it could be argued six months hence, before the full Court.
Ko-Ko. Besides, I don’t see how a man can cut off his own head.
Pooh-Bah. A man might try.
Pish-Tush. Even if you only succeeded in cutting it half off, that would be something.
Pooh-Bah. It would be taken as an earnest of your desire to comply with the Imperial will.
Despite refusing to read a knowledge requirement into the ‘literal and ordinary meaning’ of s44(i), the current Court enthusiastically read down the section to incorporate what it called a ‘constitutional imperative’ that the drafters somehow forgot to include:
It is the evident intention of the Constitution that those of the people of the Commonwealth who are qualified to become senators or members of the House of Representatives are not, except perhaps in the case of a person ‘attainted of treason’ within the meaning of s 44(ii), to be irremediably disqualified. They have the entitlement to participate in the representative government which the Constitution establishes.
However, despite purporting to adopt this statement from ‘the views of a majority of the Justices in Sykes v Cleary, the authority of which was accepted by all parties’, the current Court baulked at sone additional words in the Sykes plurality’s analysis:
What amounts to the taking of reasonable steps to renounce foreign nationality must depend upon the circumstances of the particular case. What is reasonable will turn on the situation of the individual, the requirements of the foreign law and the extent of the connection between the individual and the foreign State of which he or she is alleged to be a subject or citizen. And it is relevant to bear in mind that a person who has participated in an Australian naturalization ceremony in which he or she has expressly renounced his or her foreign allegiance may well believe that, by becoming an Australian citizen, he or she has effectively renounced any foreign nationality.
The current Court quoted just a sentence fragment from this paragraph from Sykes and then dispensed with it altogether by observing that it didn’t avail a Greek man who migrated to Australia as an adult.
The Court read Sykes especially narrowly, holding that the exception to s44(i) is purely a function of the qualities of the country with which an elected MP shares citizenship, not her diligence in attempting to comply with the Constitution’s requirements. It provided just one clear example of how the imperative operates, citing:
a requirement of foreign law that the citizens of the foreign country may renounce their citizenship only by acts of renunciation carried out in the territory of the foreign power. Such a requirement could be ignored by an Australian citizen if his or her presence within that territory could involve risks to person or property.
But otherwise, the details of the ‘constitutional imperative’ are left unresolved.
Expense? Time? Bureaucracy? Language barriers? Inept consular advice? Their relevance rests on this passing observation:
It may be that not all foreign states afford their citizens the levels of assistance in relation to the ascertainment and renunciation of their citizenship that is available from states such as most members of the Commonwealth of Nations. Some foreign states may be unwilling or unable to provide necessary information in relation to the ascertainment and means of renunciation of their citizenship.
Malcolm Roberts’s various inept efforts to rid himself of British citizenship by email (which in reality required a form, citizenship documents and an exorbitant fee) didn’t rate even a passing mention in the Court’s explanation of how he failed the s44(i) test.
What completely belies the High Court’s supposed goal of ‘certainty’ is the impossibility of testing this constitutional imperative until after an MP with a tricky dual citizenship is elected:
It is not necessary to multiply examples of requirements of foreign law that will not impede the effective choice by an Australian citizen to seek election to the Commonwealth Parliament. It is sufficient to say that in none of the references with which the Court is concerned were candidates confronted by such obstacles to freeing themselves of their foreign ties.
But, of course, six of the candidates had citizenships with friendly English speaking countries (and the seventh with a developed country with long-standing links to Australia.)
The Court – which a week earlier struck down Tasmania’s vague anti-forestry protest laws because of their ‘effect of inhibition or deterrence on the freedom’ of political communication – seems entirely blind to the ‘significant deterrent effect’ its judgment will have on a sizeable fraction of Australians who might otherwise seek to exercise their right to participate in Australia’s representative system of government.
Just imagine a future federal election, called (as they often are) by surprise:
- First, many Australians will contemplate a stab at elected office. For most, it’s just a matter of finding the deposit and some signatures. But for others with a bit too much foreign blood, it’s a time for ‘serious reflection’ and even more serious expense. For many of those, there’ll be far too little time to feasibly nominate.
- Next, the parties race to finalise their nominees. The faceless men will face the following non-quandary: should they punt on the Australian with immigrant parents from tricky countries, or a multi-generational Australian? Backers of the true blue Aussie will ponder a whisper campaign about her opponent’s ‘High Court problem’.
- Then the nomination date closes. The media will immediately demand that all candidates furnish ‘proof’ that they aren’t dual citizens. Naturally, it’s the ‘ethnic’ candidates who will come under the closest scrutiny. If any baulk at detailing their heritage, their political opponents will dog whistle by quoting the Kiefel Court’s words on ‘split allegiances’.
- At last, the election result is announced and it’s a close one! Rather than negotiate over a minority or coalition government, the parties hurriedly conduct background research into a small subset of suspect opposition MPs, while the media frets about the party’s carelessness in nominating them. The internet buzzes with speculation, founded or otherwise, about the veracity of the foreigners’ paperwork, speculation which never entirely fades.
- Finally, the new government forms. But wait! Given academic speculation that ineligible Ministers’ decisions can ‘possibly’ be challenged, should the new PM really risk appointing an MP whose status isn’t 100% certain to the Cabinet? If she’s a risk-taker, the new PM may take a punt on some of the new ethnic MPs, but certainly not for a senior position.
I hope my prediction will be wrong (again). I am confident that, one day, despite all this, we will have a Prime Minister from a minority ethnicity. But can we be sure that an outdated constitutional provision won’t tarnish, or even undercut, that crucial moment in our nation’s history?
Ko-Ko. I see. Come over here, where the Chancellor can’t hear us. Now, as my Solicitor, how do you advise me to deal with this difficulty?
Pooh-Bah. Oh, as your Solicitor, I should have no hesitation in saying ‘Chance it–’
Ko-Ko. Thank you. I will.
Pooh-Bah. If it were not that, as Lord Chief Justice, I am bound to see that the law isn’t violated.
Ko-Ko. I see. Come over here where the Chief Justice can’t hear us. Now, then, as First Lord of the Treasury?
Pooh-Bah. Of course, as First Lord of the Treasury, I could propose a special vote that would cover all expenses, if it were not that, as Leader of the Opposition, it would be my duty to resist it, tooth and nail. Or, as Paymaster-General, I could so cook the accounts that, as Lord High Auditor, I should never discover the fraud. But then, as Archbishop of Titipu, it would be my duty to denounce my dishonesty and give myself into my own custody as First Commissioner of Police.
Ko-Ko. That’s extremely awkward.
One is to conduct an audit of the eligibility of all parliamentarians to identify those MPs who may now be disqualified due to the High Court ruling. There is now sufficient certainty about the state of the law on section 44 to enable this to be conducted immediately. The second option is to recognise that section 44 of the Constitution is ill-suited to modern times and should be amended.
These are lousy options. The first (which matches a similar call by some cross-benchers) would basically guarantee my above prediction, and indeed accelerate it. The second assumes that we live in a bizarro Australia where sensible proposals for constitutional amendments aren’t routinely derailed by politicians seeking short-term political gains.
I have two alternative proposals. The first is to think outside the (Australian) box. Why not negotiate with the major sources of Australian immigrants – the UK, New Zealand, India and China, for starters – to have them insert a provision into their own citizenship laws that instantly revokes the citizenship of Australians who nominate for a federal election, without fees, paperwork and, crucially, the nominees’ awareness of their dual citizenship? (The nomination form could duly warn nominees of this possibility.) To be sure, this would be a highly embarrassing request for one government to make to another, but it would provide the clearest legal way to reduce the continuing instability imposed by s44(i), absent a debilitating constitutional campaign.
Not every foreign country will change its laws to suit Australia’s quirks, so the problem would remain. My second proposal is to shift the ‘homework’ burden to all Australians, rather than just the foreign ones. Much as the Mormons’ penchant for posthumous baptisms has led Utah to expertise in genealogy, it seems likely that s44(i) will enrich many Australian lawyers in the esoteric field of foreign citizenship law. But there should be no need for nominees, or even political parties (especially minor ones) to bear the enormous costs of finding and engaging those experts, much less sorting through and acting on their (potentially conflicting) advice. Rather, the government should fund an independent agency that provides a ‘foreign citizenship assessment and renunciation service’ to all prospective nominees for federal election who make a timely request. It will be for that service to research all relevant laws and each potential nominee’s background, do all the legwork (aided, perhaps, by inter-governmental co-operation) and bear all the expense of effecting a renunciation (or reasonable steps to that end.)
To be clear, both of these proposals are expensive, but s44(i)’s considerable financial costs are already imposed on prospective nominees and their parties, well-resourced or not. Now that our nation’s grandest Pooh-Bahs, judicial and otherwise, have opted to follow the script of a thinly-disguised lampoon of British bureaucracy, such extreme measures have truly become a ‘constitutional imperative’.
Mikado. Now, let’s see about your execution — will after luncheon suit you? Can you wait till then?
Ko-Ko, Pitti-Sing & Pooh-Bah. Oh, yes — we can wait till then!
Mikado. Then we’ll make it after luncheon.
Pooh-Bah. I don’t want any lunch.
Mikado. I’m really very sorry for you all, but it’s an unjust world, and virtue is triumphant only in theatrical performances.