When did Britain become a foreign power?

Judges are not required to be good historians, except of legal precedent, but when they inform their rulings with their version of history, they invite scrutiny of their historical accuracy.

When the first commonwealth parliament sat in 1901, a majority of its 111 members were Australian-born — but only by 0.5 per cent. That puts today’s citizenship crisis into some perspective.

Of course, back then there was no such thing as an Australian at law. Generally, birth in any of the crown’s territories conferred uniform status throughout the British Empire as “natural-born British subjects”.

Section 44(1) of the Constitution, setting out the citizenship grounds for parliamentary ineligibility, existed in much the same words in the earliest drafts of the Constitution bill by Andrew Inglis Clark and Samuel Griffith.

There was only limited discussion of the section as it went forward, except when a South Australian lawyer, Patrick Glynn, proposed that the whole section be introduced with the words “until parliament otherwise provides”. His amendment was defeated 26 to eight.

From 1901, no one claimed that those born in Britain, Canada or New Zealand — or anywhere else in the empire — were from a “foreign power”, and thus ineligible to sit in parliament.

Indeed, in 1906, the High Court ruled correctly in a Chinese immigration case that “there is no Australian nationality as distin­guished from British nationality”.

The Statute of Westminster of 1931 certainly did not make Britain a foreign power in relation to its self-governing colonies.

The Nationality and Citizenship Act of 1948 created for the first time the legal concept of Australian citizens, but these, nonetheless, remained British subjects as well.

How and when did the rules change to get us into today’s parliamentary pickle? By what legal acts did Australia and Britain become foreign to one another, rendering some of today’s politicians ineligible?

In 1982, High Court chief justice Harry Gibbs, while ruling on citizenship, argued that “the allegiance which Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia”. He was invoking Gough Whitlam’s 1973 act, where Elizabeth II was described as the “Queen of Australia”.

Yet as its “Royal Style and Titles” name suggests, this legislation merely changed the title of the Queen, not her place in our Constitution. A constitutional fiction had been created for political (nationalist) purposes.

Similarly, in 1988, chief justice Anthony Mason and five other judges in Nolan v Minister for Immigration wrote of “the emergence of Australia and other dominions as independent sovereign nations” and spoke vaguely of Australia’s constitutional “transition” which “rendered obsolete notions of an indivisible crown”; thus, they argued, some older legislation dealing with citizenship and aliens should now be read differently.

Their use of the term dominions was telling. In constitutional law, there was no such thing. Instead, what happened was that, in 1907, New Zealand, tired of its title as a colony, secured the proclamation of an imperial order-in-council changing its title to a dominion (a title already enjoyed by Canada). Thereafter, for political reasons, the British government extended the fiction generally to all its self-governing (white) colonies.

So, this is not just flawed history but flawed legal history. Judges are not required to be good historians, except of legal precedent, but when they inform their rulings with their version of history, they invite scrutiny of their historical accuracy.

The court in 1988, although very vague, seemed to assume the momentous change to sovereignty was realised with the Australia Act of 1986. The judiciary was more explicit in the case of Sue v Hill in 1999, where chief justice Murray Gleeson and three other judges held that that act ended any surviving British legislative, judicial and executive power over Australia, which thereafter was a distinct sovereign foreign power, at least in reference to section 44(1), and thus the legal basis for today’s eligibility crisis.

Yet was that judgment sound? The judges invoked a broad, if necessarily brief, historical narrative of Australia’s constitutional development to support their legal ruling, but was it good (legal) history? If the High Court has been shaky on legal history, has it also been shaky on the law?

An ordinary person reading the Australia Act of 1986, with its frequent deferential references to “Her Majesty”, cannot deem it some sort of declaration of independence — let alone republicanism. If parliament had wished, surely it could and would have said so. There is no mention of a republic and the continuing role of the crown in Australia’s constitutional life, albeit now severely curtailed, is evident throughout.

The almost complete extension of domestic sovereignty to Australia in the act, as the High Court emphasised, cannot be denied. But does that necessarily make Australia and Britain separate “foreign powers” at law? High Court judge Isaac Isaacs in 1908 spoke of “the whole empire, and within it an independent Australian government”. So for Isaacs, Australian “independence” (albeit of a far lesser degree) was not inconsistent with still being under the British crown. So why today should it not be so regarded, even with a much greater de facto, though not yet absolute de jure, independence?

Do not Australian ministers still advise the crown on some matters, such as on the appointment of governors-general, or even consult, as seems to have been the case with Tony Abbott’s knighthoods? Is not our Constitution still an imperial act? And let us not forget, we share a head of state with Britain, if you ignore the constitutional fiction of the Queen of Australia.

This is all like the law of marriage and divorce. Someone may be separated, de facto, from their partner but until the final divorce papers are signed they are still married at law, and with all the legal consequences entailed.

The High Court’s judges have also invoked “questions of international” as well as “domestic sovereignty”. Having concluded that the latter had been achieved, they claimed the same for the former. That Australia has “international personality” separate from Britain’s is undoubted and it has been so for a long (as yet indefinite) time since World War II.

But the judges should not conflate international and domestic sovereignty. The former does not require, in total, the latter but merely control over a defined territory, its people and an ability to conduct independent foreign affairs. These are all attributes of domestic sovereignty but not the whole package. The international system clearly regarded Australia as a de facto independent state long before the Australia Act in 1986 and yet, even for the justices in the 1999 case of Sue v Hill, Australia was not then yet domestically sovereign.

Have you ever wondered why there are high commissioners, not ambassadors, reciprocally representing each other in Commonwealth countries? That is because an ambassador is representative of the head of state and you cannot constitutionally have two heads of state as would be the case, if Australia (or other Commonwealth countries) had an ambassador in Britain. Our passports still read, “the governor-general of the Commonwealth of Australia being the representative in Australia of Her Majesty the Queen”.

So why did our eminent judges uphold such a constitutional fiction in 1999? They had started by saying this “question would revolve around legal” and not “historical and emotional”con­nections with Britain. Here, they set up the straw man of “sentiment” in opposition to their supposedly hard-headed, “black-letter” legal interpretation, which found Britain a “foreign power”. But were they not merely advancing their legal interpretation against another unspoken legal interpretation, hidden by their own late-20th-century “sentiment”, that of Australian nationalism?

Clearly, when section 44(1) was drafted and adopted it was not meant to make Britain or other governments of the empire foreign powers. Any ordinary reading of Commonwealth legislation to date shows that parliament has not yet decided to change the original meaning of section 44(1). It is doubtful that the constitutional framers ever intended for the judiciary to interpret those words so creatively and at such variance from the original black-letter meaning.

Surely such an important question in a democracy should be decided by the people’s repres­entatives, through legislation, or better by the people themselves through a referendum to change the Constitution.

Gregory Pemberton is a historian and writer.