One hundred and eighty years after Dickens described the law as an “ass”, we find new proof in the citizenship fiasco engulfing the Federal Parliament.

I doubt that anyone would be more shocked than those who drafted the Constitution. I think, too, that they might be more than a little ashamed at our loss of understanding of the heritage from which this nation was moulded.

When the Constitution was written there was no such thing as an “Australian Citizen”. Until 1948 all Commonwealth countries had a single nationality status: “British subject”. 

The Commonwealth was regarded as a family and its people were free to emigrate to other Commonwealth countries, to work there and to enjoy all the privileges of native-born citizens. Every Australian was entitled to the rights and privileges of a citizen of the UK, Canada, New Zealand, South Africa, India, Rhodesia, Kenya and a multitude of smaller Dominions, Colonies and Protectorates.

Neither the founding fathers, the courts, nor the Australian people considered Commonwealth countries as “foreign powers”.

All Australians were British subjects, and could not relinquish that status and remain Australian.

The qualifications needed to become a Member of Parliament are set out in Section 34 of the Constitution. You must be 21 and have lived in Australia for three years. You don’t have to be an Australian citizen but a “subject of the Queen” either by birth or naturalised  “under a law of the United Kingdom, or of a Colony which has become or becomes a State (e.g. Canada, India etc) or of the Commonwealth, or of a State”.

As it was written, our Constitution clearly intended that UK citizens, Canadians, South Africans or any British Empire Citizen, could, after living here for three years, run for Parliament. That’s exactly what they did. Had we had the same citizenship laws we have today, eight of the twelve Prime Ministers we had before 1948 would have been required to relinquish foreign citizenship rights.

The ALP is demanding that Barnaby Joyce step aside. They claim the rule of law is more important than the will of the Australian electorate and threaten the stability of the Government because of a New Zealand law.

That’s ironic, since the only Prime Minister clearly ineligible to be elected to the Parliament was the ALP’s first. Records reveal that Chris Watson was born in Chile to a Chilean father and a British mother. He grew up in New Zealand and travelled to Australia as an adult. According to the laws of the time he was not a subject of the Queen and was therefore ineligible to hold a seat in the parliament. It is possible that Watson was not aware of this, but he had more reason to know than those caught up in the current fiasco.

Countries define their citizens in different ways. No matter the nationality of the parents, some countries confer on any person born their automatic citizenship of that country.

For other countries, no matter where in the world you are born, you are automatically a citizen of their country if, in some cases, both parents and in others your father or your mother, are citizens. Some grant citizenship by lineage, such as via a grandparent.

Most countries define their automatic citizen rights through their own interpretation of these principles. Every country has changed its rules over time.

The wording of the Constitution is flawed. To preclude anyone because of an entitlement conferred by a foreign country ignores the possibility, as in each of the current cases, of ignorance. How can anybody be influenced by an entitlement they don’t know they have and which they never sought?

One of the Senators was born in Canada to Australian parents who returned to this country in her infancy and raised her here. Canada is one of those countries that confer automatic citizenship on people born there. Do we really consider her unfit to sit in our Parliament?

At the centre of the current problem is New Zealand. With them we share a unique and enduring bond. Not only is our heritage shared, our identity was defined shoulder to shoulder with them on the shores at Gallipoli. They enjoy a special status here. Indeed some of the Australia’s Ministerial Councils include New Zealand as a member. A foreign power by technicality only.

Joyce is considered to have a privilege from New Zealand only because his father was born there. Spare me!

The states make no such distinction yet they have not been subverted through foreign allegiances. Former Premier Mike Rann is reported to hold triple citizenship of the UK (by birth), New Zealand (where he grew up) and Australia. His loyalty to this country and his job was never questioned. He was a trusted source of advice to Kevin Rudd. After politics, he was appointed by the Commonwealth to various significant posts, including as Australia’s High Commissioner to London, as the Ambassador to Italy, as an Australian War Graves Commissioner and Australian representative on a number of important United Nations Committees. Yet, apparently, he is not fit to sit in the Commonwealth Parliament.

Psephologist Antony Green recently pointed to a 1992 ruling by the High Court that said: “Just because a country gives an Australian citizenship doesn’t mean that Australia has to recognise it”.

Justice William Deane spoke about the need for a candidate having to accept or acquiesce in having this foreign citizenship.

That make sense, but it is not what the words say in the constitution.

At the same time, the words of our citizenship laws apparently constrain us from denying assistance to an imprisoned terrorist who has clearly broken Australian law, committed crimes in foreign lands and has defecated on us and on our way of life. Why? Because he is an Australian citizen.

There is the letter of the law. There is also the spirit or intent of the law. While the courts have an obligation to interpret the law they have a higher duty to do so, as far as is possible, in the interests of ensuring national stability. Even in courts, common sense is not precluded.

Later this month the High Court will rule on these cases. It can only be hoped that the judges possess the wisdom to uphold the principle espoused by Deane.

If not, they will indeed prove that the law remains an ass.

Mark Brindal was a Member of the SA Parliament from 1989 to 2006, and a Minister during the Olsen and Kerin governments. He is now involved in academic writing and is a public policy consultant.