“Senator Katy Gallagher and the Labor Party were simply not careful enough with her citizenship papers. It must be considered sloppy or careless to fall foul of Section 44 of the Constitution,” writes MICHAEL MOORE
THIS year’s citizenship saga started with a couple of cross-benchers and quickly spread to claim the scalps of ministers and even the Deputy Prime Minister. There is still one very senior member of the government with more than one citizenship that has yet to fall.
It does not stop there. Section 2 of the Constitution makes very clear that anything that referred originally to Queen Victoria – and now to Elizabeth Windsor – also applies to her “heirs and successors in the sovereignty of the United Kingdom”.
There is a great irony in the High Court finding that dual citizenship applies to those whose heritage is British, while at the same time, Section 61 of the same Constitution vests the Queen with “the executive power of the Commonwealth”. This power is, of course, “exercisable by the Governor-General as the Queen’s representative”.
The principle that has been reinforced by the High Court, of our MPs and senators rejecting other citizenships before standing for the Australian Parliament, is sound. It means that there is no divided loyalty. Nor is there a perception of divided loyalty. But what about our head of government?
The High Court has indirectly reinforced the discomfort of so many Australians by identifying a principle that underlies why Australia should be a republic. Even the second clause of the Constitution pinpoints the role of the UK.
Although our original governors-general were selected from the British upper classes, for decades now the governors-general have been selected from Australian citizens. Although it is now worth noting that no-one has challenged any of them as dual citizens since they do not fall under Section 44(i) of the Constitution.
Command of our armed forces is in the hands of a non-Australian. Even if we accept Queen Elizabeth as Queen of Australia, we must also recognise her divided loyalties regarding the armed forces. It is clear under Section 68 of the Constitution that the command of the Australian “naval and military forces” is in her hands – although it is “vested in the Governor-General”.
In practice, the command of our naval and military forces has been delegated to the Chief of the Armed Forces and has not caused a problem in Australia. However, it is also true to say that the dual-citizenship saga that has plagued the Federal Parliament over the last few months has not caused a problem until taken to the High Court for decision.
In both the case of Section 44(i) and in the case of the Queen, the issue of divided loyalty is a matter of principle. The High Court has sorted the matter of principle regarding members of the Federal parliament. It will be up to Australia as a nation to now reconsider the issue of whether or not we should have a person with divided loyalty as our sovereign and as the supreme commander of our armed forces.
All elected MPs and senators have sworn an oath or made an affirmation of allegiance to the Queen. They do so in a manner consistent with a schedule to the Constitution. This is also true of all elected members in states and territories, members of the armed forces and many others. The oath or affirmation includes allegiance to the Queen and “her heirs and successors according to law”.
It is the phrase “according to law” that is critical for those of us who take our word seriously. I have pledged such allegiance first on becoming a member of the Army Reserve (then known as the CMF), secondly on being commissioned as an officer and on the four occasions that I was elected. We need to change the law to allow an Australian head of state.
The Australian head of state should not have divided loyalty. When Australia eventually becomes a republic, the High Court position on Section 44(i) should be maintained. In the meantime, our most senior member of government remains, despite divided loyalty.