Chief Justice Murray Gleeson
Justice Bill Gummow
Justice Ken Hayne
Justice Mary Gaudron
These are the four judges of the High Court of Australia who ruled, on the 23rd of June 1999, that Britain is a “foreign power”. (The remaining three judges dissented, arguing that the High Court had no right to address the issue in question.)
For those who may have missed it, the issue was the election of a Queensland senator, Ms Heather Hill, a British migrant. She had taken up Australian citizenship, but had failed to “renounce” her British citizenship.
A Chinese migrant, Chuck Hong, had complained that by not renouncing her original citizenship, the senator-elect failed to comply with section 44 of the Australian Constitution.
Section 44 excludes certain people from representing us in parliament. They cannot be undischarged bankrupts or insolvent. They cannot have been attainted of treason, or convicted and subject to sentence for an offence carrying a jail sentence of at least one year. They cannot be under allegiance, obedience or adherence to a foreign power.
The High Court effectively ruled that Heather Hill could not assume her elected responsibilities because (a) she had not “renounced” her British citizenship, even though she was a naturalised Australian, and (b) Britain had been a “foreign power” since at least 1986, when the Australia Acts were passed.
At a single stroke the High Court ruling officially made second-class citizens of over a million British-born residents of Australia.
Other migrants are also affected. Some countries, such as Greece, do not allow renunciation of citizenship under any circumstances – even by children born here of Australian/Greek parents. It has been estimated in the print media that up to five million Australian residents may be barred from public office as a result of this ruling.
What, we must ask, does this mean for British migrants who are permanent residents of Australia?
First, it means that even if we have taken up Australian citizenship we must go through the motions of formally “renouncing” our British citizenship.
Yet the repudiation process has no validity in British law. By virtue of s.12 of the British Nationalities Act 1981 it is theoretically possible to renounce British citizenship. But it’s just a farce. No matter what contrived declarations we may make here, we still remain British subjects. Think about it …
There is ample precedent for this, the best-known probably being the case of “Lord Haw Haw”, who first acquired American citizenship, and then German citizenship at a time when Britain and Germany were at war, but who was still tried in the U.K. after that war for treason. No-one could have given a clearer indication of his desire to “renounce” British citizenship. The British government hanged him anyway.
None of our readers will be tried for treason, but that is, in theory, the acid test. If the circumstances were extreme enough, could, and would, the British government try for treason a migrant to Australia who had “renounced” her original citizenship under s.12 of the British Nationalities Act 1981? The answer is clearly yes. In an atmosphere of fear and loathing, as applied in the Lord Haw Haw case, does anyone really believe that “renunciation” of citizenship under s.12 would make the slightest difference?
Clearly not. Therefore the High Court-preferred process is a sham – and a very undignified one. We are being asked to pretend to deny our legal identity.
Then there is the question of second-generation British migrants. They are automatically Australian citizens as a consequence of having been born here, but many Australian-born children of British parents are entitled to British citizenship.
Those who take up this right, for the purpose of study or travel or work or whatever, will presumably be in the same situation as Heather Hill.
What of those who don’t? They’re banned too! Section 44 of the Constitution says: “Any person who … 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”.
Those of us who are not politically inclined might say they don’t particularly want to stand for the Senate or the House of Representatives. That is not the point. The point is that we are now banned from doing so. And so are most of our children.
What about voting rights? Those of us who have not taken up Australian citizenship – and what is the point now? – but were on the Commonwealth electoral roll before January 1984 will still be entitled to vote. That is, until a new High Court sitting on a different issue uses the June 1999 ruling as a precedent, and decides that we’re not entitled to vote, either.
What’s next? Well, perhaps we shouldn’t be entitled to jobs in which our status as people “entitled to the rights of citizens or subjects of a foreign power” might disqualify us. Like, say, the defence forces, the public service, the police, the education industry? It is already the case that promotion beyond certain levels in these careers is banned to migrants who haven’t taken out Australian citizenship. It is only a short step to applying the June 1999 Heather Hill precedent to these and other areas of employment.
The irony, of course, is that migrants from some groups who have had nothing to do with the development of Australia will be exempt from any such provisions.
Welcome to being a second-class citizen in your own country!
– Alan James