greens are

[Jerry_Atrick]

@facthunter - agree, however, even though it won't be (or shouldn't be) retrospective, it should be fixed or at least changed where theymust be at least granted permanent residence and domiciled as well as living within Australia or its territories (don't want some scumbag living/domiciled in a low-tax haven drawing a MP salary while sipping pina coladas... ) and all parliamentarians regardless of whether they have foreign citizenship/rights must remain living in Australia during their term (so even Skase type characters don't benefit)

 

Maybe as part of the referendum (which I think will be required to change the constitution), an inclusion such that any incumbent parliamentarian that reasonably did not know of their foreign citizenships or rights thereof can be granted a stay of application of the constitution at the time they were originally elected, however, if it was reasonable that they ought to have known, then they have to resign/leave and compete - if they so desire - for re-election under the new rule. A quick temp tribunal could be set up to determine reasonability in accordance with, ahem, reasonable guidelines.

 

 

[willedoo]

It's a tricky one Jerry; a lot of grey areas.

 

It seems to me like they're re-writing history. The original idea of section 44 wouldn't have been to disqualify British Subjects, which all Australian citizens were until 1984. When Barnaby's dad was born in New Zealand, there was no such thing as Australian or New Zealand Citizenship; we were all of British Nationality.

 

The way they are interpreting section 44 nowdays is a bit like applying a retrospective law to those of British/Commonwealth origin.

 

 

[Jerry_Atrick]

Sounds like Aussie citizenship had something to do with the change of commonwealth citizens status, where in response to a large African migration into the UK, the immigration act (I think 1985) rescinded automatic UK citizenship from Commonwealth citizens (I am not arguing the merits of such a move - just it was what happened as I was taught).

 

Then the question becomes whether or not the constitution refers to the concept of foreign citizenship at the time (i.e. foreign to commonwealth as my guess would be, except for those that became republics, any commonwealth nation such as Canada, many African countries, etc would not be considered foreign for the purposes of the constitution at the time of drafting - and it was probably inconceivable that those not of a WASPy type background would be able to rise the socio-economic ladder to be serious contenders, anyway. So, it could be interpreted in this way, however, in the absence of a legal definition of foreign power, that logically probably should only apply to commonwealth citizens at the time of Aussie citizenship coming into effect (whether it persists to the next election is something to contemplate by those of minds far greater than mine).

 

In the absence of a definition either in the constitution or some other interpretations act, then the argument would be the constitution should take the definition of a foreign power or its equivalent - as interpreted in specific branches of the law or constitution itself. For example, can New South Wales legally declare war on Victoria and commandeer the ADF to do so (as much as they would like to and vice versa)? Probably not as the Commonwealth of Australia holds the pen of war and New South Wales and Victoria are not considered a foreign power under the constitution. However, can Australia legally declare war on the United Kingdom, New Zealand, Canada and other commonwealth countries? As unlikely as it is, I would think in excercising our sovereign rights, we can. So for the purposes of war, the UK is a foreign power.

 

Taking it a step further, when Australia enacted its independent citizenship (and I think in the 90-'s removed the right to appeal to the Privy Council and then appointed Lizzy the Queen of Australia rather than the Queen of England/UK as the head of state), it cemented independence of the UK legally (cheap TV shows have done that culturally). But, not, does a UK (or New Zealand) citizen have automatic rights of a citizen? Kiwis I think can reisde here legally, but can they exercise all democratic privileges (i.e. vote)? Not sure. However, what is for sure is that this is not availed of UK citizens, so for the purposes of immigration law, they are considered aliens or of a foreign power.

 

It could be argued then that when Australian went independent of the UK in terms of citizenship and when Australia severed legal ties to the UK through right of appeal to the Privy Council and making the head of state the monarch of Australia, not the UK, it didn't redefine the meaning of foreign power (as that meaning is consistent), but reclassified the UK (and other commonwealth nations) as foreign powers that remain within the Commonwealth,, but are not in anyway linked in a sovereign perspective to Australia.

 

It can be further argued it would be repugnant that the Commonwealth of Australia could not exercise it's powers of sovereignty to include or exclude any country as within or outside the definition of a foreign power as parliament sees fit. Therefore, the argument could be that Australia (and it's protectorates/territories) are not considered foreign powers, however, any other sovereign nation is and therefore if someone is a citizen or availed rights of a citizen of another sovereign nation, then it is the same as a foreign power and they should be excluded from eligibility of parliament if they were elected or contested an election after either the enactment/in force of Aussie citizenship or at least the '90s constitutional changes.

 

The section should be changed and can be changed. The fear for me would be the potential divisive effect any campaign will have.

 

 

[willedoo]

For example, can New South Wales legally declare war on Victoria and commandeer the ADF to do so (as much as they would like to and vice versa)?

I think after the State of Origin, Queensland would be in their sights. Victoria can breathe easy for a while.

 

 

[Marty_d]

I think after the State of Origin, Queensland would be in their sights. Victoria can breathe easy for a while.

Selling out to Adani, QLD is in everyone's sights.

 

But in regard to the section 44 clusterf*ck, I think it's pretty obvious that:

 

a) it's out of date for a country where half the population are first or second generation residents.

 

b) despite the frantic wriggling of Turnbull and Brandis, it's fairly black and white.

 

c) it's part of the constitution, so it can only be changed by a referendum.

 

The government is in a lather about this because of short term politics - they may lose their one-seat majority if the High Court rules Barmy ineligible.

 

They're lashing out, accusing Labor of treason for contacting the NZ opposition and getting Barmy's citizenship status confirmed, when it was always going to come out in the wash.

 

Labor themselves are rolling with glee but quietly afraid of having several members of their own party caught up in it.

 

Neither of the big parties will agree to a full audit of members.

 

Given the stupidity of the plebiscite / postal vote on gay marriage, and Shorten's somewhat bizarre noises about another Republic referendum, I don't think there'll be much appetite for asking us the people to fund a referendum which really only affects politicians.

 

In the end, I think everyone even considering a career in politics should just learn from this, check their family history and renounce any other citizenships - well before the polls.

 

 

[facthunter]

Bananabro admitted HE WAS an NZ citizen finally in QT yesterday and that he had renounced it just a few days ago. This was a change from strongly denying any problem a week before and having said he'd checked with NZ and there was no problem. THESE people made a great song and dance about the Greens "incredible sloppiness" but the two Greens resigned straight away on legal advice and "did the right thing" by the way they saw the situation.

 

Re the situation with the LNP.. It was a cover up and they got BLOWN. They were trying to bluff their way through the situation. NOW they've created a major crisis with NZ over J Bishop's totally over top accusation of treachery with a foreign power and that THEY would have difficulty working with the Labour Party in NZ IF they get in at the oncoming election. So far it would appear Julie has helped the NZ labour Party in the polls. Whos' planning these tactics?. Nev.

 

 

[hihosland]

sec 44 says in part

 

"entitled to the rights or privileges of a subject or a citizen of a foreign power; or"

 

Can Barnaby et al actually step around this entitlement that is conferred by another nation.?

 

They can obviously declare that they will not avail themselves of this entitlement, but can they actually create a situation in which that entitlement does not exist?

 

 

[Yenn]

They can contact the foreign power and make themselves so obnoxious that the foreign power renounces their rights.It is a really silly situation that is caused by poor wording of the constitution. Maybe we should change the constitution, but going on our present politicians it would just become a bigger pigs breakfast. Just imagine if they gave the job to CASA to word the amendments.

 

 

[Jerry_Atrick]

If CASA did it: "One must have an ASSIC (misspell intentional) in order to take their seat in parliament...."

 

 

[Yenn]

Must be Christmas. No L

 

 

[Jerry_Atrick]

Looks like almost all of parliament are dual citizens or close enough... Deputy leader of the NP; and do my eyes deceive me, or is Pauline Hanson a citizen of a more strict Islamic nation? She is purporting to be, so in my book good enough to have her ejected from the chamber permanently

 

 

[hihosland]

I wonder how many of the 1901 parliamentarians would fail the 2017 eligibility test?

 

I'm sure that when they adopted the constitution they did not intend to disqualify themselves.

 

 

[octave]

go on about Pauline doing wronggreens are a lot off garbage how come that green senator can have duel citizenship and don't know about it you voted for a ludnam ten years ago neil

Hi Neil, just wondering are you still angry about those stupid greens not knowing they are dual citizens? You seem to have gotten over your outrage.

 

 

[storchy neil]

how many times do I repeat my self what part off must revoke duel citizenship don't some people get to be a member off Australian parliament neil

 

 

[Jerry_Atrick]

Agree with you Storchy.. Those that knew at the time should be ejected from the relevant chamber if they don't resign.. Those who reasonably didn't know (i.e. it wasn't wilful ignorance) should be given the option to renounce or resign. Ignorance of the law is no excuse; ignorance of the fact can be.

 

 

[nomadpete]

Bah, I'm pretty sure it only applies to greens.

 

 

[octave]

how many times do I repeat my self what part off must revoke duel citizenship don't some people get to be a member off Australian parliament neil

If you are directing your criticism towards me let me again say in my opinion this part of the Constitution is ridiculous and must be changed asap like most other modern democracies have done, that being said, the law as it stands is the law a has to be obeyed. ignorance does not provide a valid defense. I would say that it is only the greens who have been ethical enough to say "yep fair cop" and to have the courage to resign.

 

An interesting thought is this cannot be the first Parliament in which dual citizens have served. I would imagine that throughout our history there have been many pollies on ALL sides of politics who have served in contravention to the Constitution.

 

 

[facthunter]

I doubt a referendum on this would run. it has to be a majority in every state and how would you make the case for not wanting" Australians only". to be eligible for a seat in the parliament? Getting caught by it is a separate issue. IF it was important enough you would give it "due diligence", so perhaps it didn't seem important enough to some. Bananabro is only an issue because he takes the government to a NO Majority situation and the nationals would be putting all the pressure they can muster to keep him there, for the excess influence he exerts. Nev

 

 

[hihosland]

I presume that they could pass an act to the effect that any person who swears and oath (pledge) relinquishing any entitlement to non-Australian citizenship will be deemed to have complied with the provisions of section 44.

 

That would

 

a.. side step the need for any other nation to be involved

 

b..avoid the need for a constitutional amendment.

 

 

[Bruce]

wow hihosland, you are proposing a cheap commonsense solution? No wonder you are not in parliament.

 

 

[Marty_d]

I presume that they could pass an act to the effect that any person who swears and oath (pledge) relinquishing any entitlement to non-Australian citizenship will be deemed to have complied with the provisions of section 44.

That would

 

a.. side step the need for any other nation to be involved

 

b..avoid the need for a constitutional amendment.

While that sounds very sensible, I'm a bit unsure whether a law can be passed that affects interpretation of the constitution. Any constitutional lawyers on here?

 

 

[David2ayo]

FAR too sensible - almost bordering on Common Sense, and we all know how dangerous that is.

 

David

 

 

[Jerry_Atrick]

I am no lawyer, let alone constitutional lawyer.. However, the wording of the act wouldn't make a direct reference to he constitution, but something to the effect that an official form renouncement to the Aus Foreign Office, who would be bound by duty to deliver to the relevant countries consular services in Australia or, in the absence, through foreign envoy representation to that country (e.g. Wards, DHL, FedEx, etc), and where that person does not avail themselves of any benefits conferred to them of the said foreign power, shall, until as such time that they can be objectively deemed to be exercising such benefits of the foreign power, have considered to rescind their citizenship or rights thereof of the said foreign power until such time that they are observed to assert or receive such rights, ispo facto, ceterus paribus, caveat emptor and inter alia....

 

(Latin added for effect).

 

 

[kgwilson]

Good effort but a real lawyer would add a lot more meaningless words and phrases so the wording would be completely impossible to interpret by anyone else. Why say something in 10 words of simple plain English when you can spin it out to several hundred that no-one can understand.

 

 

[Marty_d]

Apparently it was because lawyers used to be paid by the word, for contracts & such. So they had a damn good reason to be verbose.