History, the constitution and “Super Saturday”

Following last week’s “Super Saturday” by-elections, at which another four casualties of the constitution’s section 44(i) all won back their seats, it was a good time to hear the commonwealth solicitor-general, Stephen Donaghue, speak on the topic last night at Melbourne University Law School.

Donaghue ran the government’s case last year before the High Court in Re Canavan, arguing that s. 44(i) should be read as implicitly incorporating a mental element, so that only a member who had voluntarily acquired or retained another citizenship would be disqualified. The court unanimously rejected this argument.

In the circumstances, such a lecture could easily become an exercise in sour grapes, explaining why he was right and the court was wrong. Donaghue’s good sense and good humor ensured that was not the case.

Nonetheless, the history and analysis that he gave of the section demonstrated fairly clearly that its more literal meaning, to which the court has given effect, was not what its drafters intended. It appears that the primary intention of the constitutional conventions of the 1890s was simply to reproduce colonial provisions that had the effect of disqualifying a member who, after being elected, chose to embrace some foreign allegiance.

None of the MPs and senators affected so far by 44(i) is even close to being in that category.

If this is true, it raises two further questions, one legal and one political.

The legal question is whether it is fair to criticise the High Court – as many pundits have done – for giving effect to the words of the constitution rather than the intent of those who wrote it. In my view it is not.

It’s fundamental to the rule of law that citizens should be in a position to know what the law is. Lawmakers enact words, not intentions; if those who have to obey the law cannot rely on the words, they are at the mercy of changing historical research and creative interpretation.

Lawyers are taught a variety of different interpretive strategies, and often debate the appropriate range of historical evidence to refer to. But those strategies, properly understood, are means to resolve ambiguity. They should not be resorted to in an effort to override the clear meaning of a text.

(It’s a different matter if the words, taken literally, would lead to some manifest absurdity; then courts have always implied exceptions, as the High Court did in Sykes v. Cleary. But the result of Canavan is inconvenient, not absurd.)

The result in this particular case would have been more sensible if the High Court had been more creative in its interpretation, as Donaghue and the government had argued. But that would have come at the cost of weakening the rule of law overall, and in my opinion that cost is too high.

The second question is whether the history of s. 44(i) can contribute to the political debate on what to do next. Should we simply rest content with the present situation, where large numbers of Australians are potentially ineligible to stand for parliament, or wait patiently for some future High Court to reason differently? Or should we pursue constitutional change?

I think Donaghue’s history lesson is significant here. If 44(i) had been deliberately crafted to produce this result, the argument against changing it would be more intelligible. But it seems, on the contrary, that our forebears had no particular concern at all about MPs who happened to have or acquire dual citizenship by the operation of law, without doing some positive act to bring it about.

The fact that none of the Australian colonies – now states – had such a provision, and that no other country (as far as anyone has been able to find) has since seen fit to introduce one, is a powerful answer to the arguments of those who maintain that 44(i) is necessary to protect our polity from subversion.

Which brings us to Saturday’s by-elections. Once again, the electorate showed that disqualification under s. 44(i) is not a matter of real concern. The four MPs concerned – three Labor and one Centre Alliance (formerly Xenophone) – were all re-elected. All increased their vote on a two-party-preferred basis (although in the case of the member for Fremantle that is largely academic since the Coalition chose not to run against him).

None of the campaigns seemed to focus on the disqualification at all; local and national political issues were much more salient. (There was also a fifth by-election, in Labor-held Perth, where the vacancy was unrelated to s. 44(i).)

None of them was a good result for the Coalition, although Braddon, where the swing was just 0.2% to Labor, could easily have been worse. They confirm the general picture that Labor is better placed for next year’s general election, although in far from a commanding position.

But taken together with last year’s results in New England and Bennelong, Saturday suggests that the strict interpretation of s. 44(i) does not enjoy any great popular support, and a referendum to change it, held in conjunction with the next election, would be unlikely to meet the groundswell of opposition that some have predicted.

First, however, Coalition and Labor would need to agree on the wording of a change. And since neither has shown any sign of a constructive approach to the issue since it first erupted more than a year ago, the chance of that happening does not seem very high.

For more on the by-elections, go to Peter Brent at Inside Story.


3 thoughts on “History, the constitution and “Super Saturday”

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