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Dual with the Constitution

June 27, 2013

ImageFour years ago my three daughters and I flew into Sydney on an evening arrival from London. We’d been living in England for two years and  were now returning. As the plane soared over the city’s night brightness, the emotion of being back overwhelmed me and I shook the children urgently awake telling them, Look kids, look outside. We’re home.

I’m one of the more than 600,000 New Zealanders who call Australia home. My children’s father is Australian, two of them are born here and carry Australian passports. I too am an Australian citizen, taking the test and accepting this privilege in front of hundreds of people at the Sydney Town Hall. For twenty years I’ve paid taxes, participated in this country’s society, cared about its place in the world. In the past four years I’ve become progressively more and more active in community organising, including the political and environmental campaign against coal and CSG and Greens progressive politics.

The last census showed that 26% of Australia’s population was born overseas. Incredibly another 20% of Australian have at least one overseas-born parent confirming our cities as a melting pot of diversity and cultural representation.  Many Australian-born kids also carry dual citizenship, one or both of their overseas-born parents wanting to give them a symbolic connection to familial ancestory and memories, the land where their forebears are buried or simply just easy entry to the country on holiday visits.

A few weeks ago I found out that section 44 (iv) in the Australian constitution bans all Australians with dual citizenship from running for federal politics unless they renounce their ‘other’ citizenship before they sign their Australian Electoral Commission (AEC) nomination form.

Australia’s constitution was enacted in 1900 and came into law on 1 January, 1901, a time when the population was 97% all white. Unforgivably the constitution didn’t recognise Australian’s first people or women. It also excluded anyone with dual citizenship sitting in the new federal parliament and this has not been changed in 113 years.  In New Zealand, anyone who is a citizen and resident can stand for election. In the UK, any resident  who is a citizen of a Commonwealth country can stand. This means I could be an MP in the United Kingdom where I don’t have citizenship, yet in my home country where I do have citizenship I am excluded.

I wrote my honours dissertation on land and belonging, exploring connection to land for indigenous people and its importance to identity. For my first twenty-five years I lived in Aotearoa New Zealand, it’s the place of wonderful, happy, belonging memories and intrinsically linked to my identity and activism. After all, it was NZ who took the bold step to become nuclear free in 1984 with legislation that is still standing. We were the first country to give women the vote, seven years before Australia’s constitution that excluded women. The kiwi history of female representation led in 1998 to all seven of  NZ’s top roles being held by women including Prime Minister, Opposition Leader, Governor General, CEO of Telecom, Chief Justice. It was New Zealand who reinvigorated the music world with Split Enz and the Dunedin Sound. There are sporting and cultural achievements galore that make be proud to be a Kiwi.

My memories like everyone’s are linked to place and people and I’ve written about the difference for indigenous connection to land compared with that of settler cultures who had to leave their land, the place where their ancestors are buried, behind. I argued this is why non-indigenous cultures love artefacts so much, it’s the collective insurance that their identity can go with them if they ever migrate en masse again. Unlike land and place.

I was recently preselected as the Greens candidate for a NSW federal seat, chosen by a local Greens group to be their representative in this election and campaign on their community’s concerns of food sovereignty and companies like Monsanto controlling food production, sustainability, Australia’s coal obsession and its contribution to climate change, oceans and the natural environment. We wanted the electorate to vote for the Greens on land, water, oceans, trees, koalas, renewable clean energy and climate. It was my story as a contemporary mother, advocate and environmental campaigner that we thought would resonate.  

My dual citizenship was no secret and there was majority support that dual citizenship was not going to affect my vote and there was a strong case to be argued if it was ever constitutionally challenged in the High Court or Federal Court of Australia, the only authorities in Australia that can make decisions regarding the interpretation of the constitution.

Then a lawyer pointed out that though this was true, there was a statutory declaration on the nomination form all candidates nominating as a candidate for federal election must sign saying they “are qualified under the Constitution and the laws of the Commonwealth to be elected as a Member of the House of Representatives.” At this point it became irrelevant if I thought the High Court or Federal court would find in my  favour.  It became irrelevant that no-one has ever been charged for signing a false statutory declaration on a federal election candidate nomination form though there have been high court cases challenging elected candidates with dual citizenship on their constitutional legitimacy to sit in the House of Representatives or Senate.

A stat dec is a stat dec.  It’s not about God, it’s about the laws of your land underpinning a civil society, it’s a citizen commitment to the shared rules and laws of the functioning nation. Democracy lies in the process, not in the results, it’s our shared set of rules and the journey we take together that counts. You just have to look at the fiasco inside the Labor that happens when each faction goes it alone.

And that’s what made it impossible for me to be a candidate in the upcoming federal election, and why more than 20% of our population are excluded as well.  It wasn’t what could happen to me, it was that the means didn’t justify the end.

The 1900 constitution was written to avoid stacking by self-interested English men, couched in language of protecting “the parliamentary system by disqualifying candidates and members of Parliament who are at risk of allowing conflicts of loyalty to affect their performance.” Justifiable at the time maybe, but not now.  But to change the Australian constitution requires a referendum, a momentous effort requiring committed stakeholders and a huge investment in community consultation. Only eight of the 44 referendums ever untaken in Australian have been carried and section 44 (iv) of the constitution regarding the democratic exclusion of dual citizens is not a priority.

White Australian-borns have been quick to say, just renounce, a response similar in my mind to the flippant “Just Get Married” comeback that the English gave mewhen I’d complain about the lack of recognition or rights for de facto relationships. I did email the NZ embassy and was sent forms on how to cut the umbilical cord and renounce my connection to the country of my birth. I’ve opened this pdf form many times, trying to be practical and sensible and knowing it would not change my identify. But I couldn’t do it. Both places are my home, I have loyalty of memory and nurture to one, a fierce loyalty and desires for the future of both.

Fortunately the NSW constitution does not exclude MPs based on dual citizenship. Candidates must simply be on the electoral role and not have been “convicted of the murder of a child or a child sexual offence,  the subject of proceedings for such an offence; or  the subject of an apprehended violence order for the purposes of protecting a child from sexual assault.”  Tick tick tick.

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