A Constitution for the People, not for the lawyers

The Proclamation of the Australian Constitution

From an APP member

The citizenship status of various members of the federal parliament has created a political upset in Australian politics.
However, there is a lot more to the matter than has been let on in the mainstream media.

Section 44
Section 44 of the Australian Constitution says:

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.

[Note: The other sub-sections of Section 44, (ii) to (v), deal with traitors, bankrupts, etc.]

However, Section 44 has been misinterpreted by the Australian media and by the Australian legal system. Section 44 (i) does not apply to British subjects.

When the Constitution was drawn up by the leading legal and political minds of the Australian colonies, the term “foreign power” was a reference to non-British nations.
Australia, Canada, New Zealand, South Africa, and the rest of the British “family of nations” were all regarded as “British” nations, with all of their citizens being the subjects of the British monarchy.

Indeed, Quick and Garran’s definitive work on the Australian Constitution, The Annotated Constitution of the Australian Commonwealth, specifically refers to British subjects, as distinct from foreign citizens, regarding Section 44.

Australian citizenship didn’t even legally come into being until 26 January 1949, with the advent of the Australian Citizenship Act (1948) — all people born in Australia before that date were regarded as British subjects; in fact, Australians were still regarded as British subjects after the Australian Citizenship Act came into operation.
The term “British subject” was later removed from the Nationality and Citizenship Act by the Labor government of Gough Whitlam in 1973.

When Australia was founded in 1901, Australian politicians, and Australians in general, spoke of being “British”. All Australian citizens were regarded as British subjects, which is why the flying of the Union Jack (also known as the Union Flag) was so prevalent in Australia, especially during times of war; the Union Jack was referred to as the “national flag”, and the Royal Anthem (“God Save the King/Queen”) was referred to as the “national anthem”.

Australia has effective political and cultural independence from Britain; however, in terms of the Constitution, Britain is not regarded as a “foreign power”. Whether that should be changed or not should be up to the people of Australia, voting in a referendum; such a constitutional and political change should not be in the hands of unelected High Court judges who take it upon themselves to act beyond their proper purview.

The Schedule of the Constitution
What is most important is that the Constitution itself shows that the Section 44 (i) does not apply to British citizens.
The “Schedule” (at the end of the Constitution) lays out the style to be used for taking an official oath of pledge of allegiance.

OATH
I, A.B. , do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law.
So help me God!

AFFIRMATION
I, A.B. , do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law.

(NOTE: The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time. )

Therefore, it can be clearly seen that Australian citizens who owe allegiance to the monarch of the United Kingdom of Great Britain and Ireland are clearly not regarded as owing allegiance to a “foreign power”, because Britain was not regarded by the makers of the Constitution as a “foreign power”.

Whilst federal politicians have asserted Australia’s political independence with laws such as the Statute of Westminster Adoption Act (1942), the Australia Act (1986), and the Royal Style and Titles Act (1973), those laws do not change the Australian Constitution, because that can only be changed by the Australian people, voting in a referendum, not by politicians passing laws.

The High Court
The High Court of Australia has ruled (in the Sue v Hill case) that the United Kingdom is a “foreign power”, but that ruling was incorrect, and possibly based upon political bias. Indeed, considering the rise of judicial activism, it would not be surprising that the ruling was made upon political grounds, rather than impartial legal grounds. The High Court ruling was a miscarriage of justice.
In fact, the judgements handed down were so shoddy that they couldn’t even decide upon a date when Britain had become a “foreign power”, which really meant that they were just guessing with their decision rather than basing it upon facts.

The Sue v Hill case was highly political.
The case was brought about to stop a One Nation candidate, Heather Hill, from taking her seat in the Australian Senate. Chinese-born Henry (Nai Leung) Sue, backed by Sydney businessman Chuck Hong, sought to bar Heather Hill from the Senate because she was a British citizen.
Terry Sharples, a disgruntled former One Nation candidate, was also involved in the court case against Heather Hill (Sharples was the character who was promised money by Tony Abbott, to be provided from a “slush fund” in what seemed to some to be a shady-looking action to damage One Nation).

The High Court decision was politically biased legal nonsense.

Section 42
In fact, Section 42 of the Constitution refers specifically to the Schedule (the oath of allegiance to the British crown): “Every senator and every member of the House of Representatives shall before taking his seat make . . . an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution”.

Therefore, all Australian parliamentarians have to pledge allegiance to the monarch of the United Kingdom. That being the case, in line with the High Court decision, all parliamentarians would be acting under “allegiance, obedience, or adherence to a foreign power” (section 44); but, of course, that would mean that no Australian parliamentarians would be allowed to sit in the federal parliament.

Therefore, the High Court’s ruling is a lot of nonsense, not only because it would invalidate all Australian parliamentarians, but because it goes against what the Australian Constitution says.
Section 42 and the Schedule of the Constitution are intrinsically linked, and they invalidate the High Court’s idea that the UK is a foreign power — because, constitutionally, it is not.

Conclusion
Whether or not we want it to be, the plain fact is that, under the Australian Constitution, British subjects are not regarded as being under an allegiance to a “foreign power”.

Should we wish to change that situation, then the proper method to make such a change to the Australian Constitution would be by the Australian public voting for it in a referendum.
High Court judges cannot be trusted to make political decisions for the Australian nation, especially those judges who harbour Cultural Marxist social-political biases.

If Section 44 of the Australian Constitution is to be changed, then the decision should be up to the Australian people — as keeping Constitutional changes in the hands of the public is one of the basic foundations of Australian democracy, and we shouldn’t let untrustworthy politicians or judicial activists undermine the democratic basis of the Australian Commonwealth.

References and further reading:
Commonwealth of Australia Constitution Act”, Parliament of Australia
Commonwealth of Australia Constitution Act – Sect 44”, Australasian Legal Information Institute (AustLII)
Commonwealth of Australia Constitution Act 1900 (UK)”, Documenting a Democracy (Museum of Australian Democracy)
John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth, Sydney: Angus & Robertson, 1901, pp. 489-491
Nationality and Citizenship Act 1948 (Cth)”, Documenting a Democracy (Museum of Australian Democracy)
Australian Citizenship Act 1948”, Federal Register of Legislation
Australian citizenship: a chronology of major developments in policy and law”, Parliament of Australia, 11 September 2009 (Michael Klapdor, et al)
The Union Jack or The Union Flag?”, Flag Institute

Commonwealth of Australia Constitution Act – Schedule”, Australasian Legal Information Institute (AustLII)
Constitution of Australia”, Wikipedia
Statute of Westminster Adoption Act 1942”, Wikipedia
Australia Act 1986”, Federal Register of Legislation
Australia Act 1986”, Wikipedia
Royal Style and Titles Act 1973”, Federal Register of Legislation

Sue v Hill”, Wikipedia
Sue v Hill [1999] HCA 30; 199 CLR 462; 163 ALR 648; 73 ALJR 1016 (23 June 1999)”, Australasian Legal Information Institute (AustLII)
Grandmaster Henry Sue: AKWF Lifetime Achievement Award 2010”, Kung Fu Wushu Australia
Greens share One Nation outrage at decision against Hill”, 7.30 Report (ABC), 23 June 1999
The ABC of journalistic precision”, The Sydney Morning Herald, 28 August 2003 (Jack Robertson)
The United Kingdom is a foreign power — Sue v Hill”, Australasian Legal Information Institute (AustLII) [by James McConvill, Deakin Law Review, vol. 4 no. 2]

Commonwealth of Australia Constitution Act – Sect 42”, Australasian Legal Information Institute (AustLII)
John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth, Sydney: Angus & Robertson, 1901, pp. 487-488

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