Date: 18/06/99 (Sydney Morning Herald)
Our top judges are tying themselves in knots trying to work out whether Britain is a foreign power, writes RICHARD ACKLAND.
Many jamborees are planned to attract the public's attention to the pressing
matters to be voted upon - whether to change the Constitution so that Australia
becomes a republic (with bipartisan appointment of the president), and whether
to have a new preamble.
On Sunday night Your ABC kicks off with a televised debate on the main
contentions under the thought-provoking title, "A Republic: Feared or Favoured".
The usual suspects will participate.
Justice Michael Kirby and Geoffrey Robertson, QC, next month in Sydney will
recreate the main issues at the trial and execution of King Charles 1 - putting
the monarchy versus republic divide into a historical context.
k There will be debates, performances and hooplas in every corner of this
fair brown land as we are propelled to the moment of constitutional
decision-making.
While this momentum is building, in Canberra all seven judges of our pivotal
constitutional court are being distracted by something which also defines
our sense of self.
The case of Sue v Hill was argued last month before the High Court and the
judgment is reserved.
The issues go just as much to the heart of our identity as a sovereign nation,
as the case for constitutional change mounted by the republicans, and yet
it is a matter entirely separate from the referendum process.
The case was brought by the petitioner Henry Sue against the One Nation Senate
candidate Heather Hill and the Australian Electoral Commission. Hill was
elected at the last Federal election, without the need for a distribution,
as the third of six senators for Queensland.
Sue has asked the High Court for a declaration that Hill was not capable
of being chosen as a senator and that she was not duly elected.
The basis of this argument was that during the election Hill was a citizen
of the United Kingdom as well as a citizen of Australia. The Commonwealth
Constitution says that any person who is a subject or citizen of a foreign
power "shall be incapable" of being chosen or of sitting as a member of the
Commonwealth Parliament.
This is not like previous cases on electoral qualifications to come before
the High Court involving candidates who were not Australian citizens. Hill
was at all material times an Australian citizen.
In a nutshell, what the High Court has to decide is if the United Kingdom
is a "foreign power". Despite our certainty about ourselves as an independent
entity, this is a question capable of tying constitutional jurists in knots.
Counsel for the petitioner suggested that to be foreign was to be something
that was not Australian, and that the process by which the UK became a foreign
power was evolutionary. But, if it is evolutionary, when did evolution start?
Justice I.D.F. Callinan, the noted author of the erotic masterpiece The
Lawyer and the Libertine, jumped quickly on this point: "... if you start
talking in terms of an evolution, you really have to be able to identify
an event or a point of time, because otherwise people do not know their rights
and obligations or indeed their status."
There were various suggestions as to the point at which the UK became "foreign"
to Australia. Justice Kirby thought it was "the 1920s, possibly as a consequence
of the First World War, the Versailles Treaty and all other steps that were
taken ..."
But Justice Gummow said that, "until 1986, State Governors were appointed
by the Crown on the advice of British ministers, and imperial honours were
awarded by the Crown on the advice of British ministers ... That does not
sound very foreign."
Of course, the case being put by Robert Ellicott, QC, on behalf of Hill,
hinged on the argument that the UK is not a foreign power. He pointed out
that until 1981 you had to be a British subject to stand for Parliament in
Australia. Thereafter, it seems you are to be disqualified if you are a British
subject. This, said Ellicott, was incongruous.
To which Justice McHugh said, as if we needed reminding: "Yes, but it is
a question of interpreting the Constitution. Our Constitution contains no
specific Bill of Rights. It is a constitutional mistake to think that questions
of fairness enter the determination of constitutional questions. It is a
question of power."
Ellicott, who is both a former Commonwealth solicitor-general and
attorney-general, argued that while the Australian Constitution remains as
it is, the UK will never be a foreign power. Our Constitution was enacted
in a UK statute, so Britain "... is an immutable part of the Constitution
and is ingrained in its meaning".
Ellicott recalled that in 1973 he and prime minister Gough Whitlam had sat
down with the British prime minister to abolish Privy Council appeals. He
asked cryptically: "Were we talking to a foreign government?"
Against that is the equal reality that it was the people of Australia who
took the Constitution to London for enactment, that Australians alone can
amend it and, as Justice Kirby says, it is a document that now represents
the will of the Australian people.
What came first, the chicken or the egg, the self-determination of Australia
or an Act of the UK Parliament?
Chief Justice Gleeson tried to clarify the issue: "... it may be self-evident
that the corollary of the proposition that Australia is a sovereign independent
nation is that every other nation is foreign, but the central question is,
is it not, whether having regard to the terms of the whole of the Constitution,
the United Kingdom is an exception to that?"
So while the referendum momentum builds, we leave the justices to ponder
the deepest conundrum. Are we "foreign" as far as the UK is concerned, if
so when did that happen, and if we are not, where the hell does that leave
us?
If Hill does manage to take her seat in the Senate, it means that republicanism
still has a long way to travel in this country.
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