By Terry Dwyer
TO: Dear Senator Di Natale
Do not accept that your two Senators, Ludlam and Waters, are legally disqualified under s44
This is a question of fundamental Constitutional importance (though ignored by 98% of commentators who don’t even realise its significance to future possible purging the Parliament of “undesirables”).
Sue v Hill did not definitively determine the operation of s 44. Consider England and Scotland after James I ascended the throne or Great Britain and Hanover when William IV was King of both. It was held in Calvin’s case in 1608 that a Scots child born after James I became King of England was not an alien in England. https://en.wikipedia.org/wiki/Calvin%27s_Case
Likewise a German interned in South Australia sued for his freedom and won around 1914 because he had been born in Hanover before 1837 when Victoria ascended the throne and was therefore a natural born British subject.
The High Court fudged the issue at one sentence in para 94 by ignoring the full weight of Calvin’s case and Zines’ comment to the contrary. Sue v Hill is therefore per incuriam (aka a judicial cock-up, for want of proper argument). The full weight of the matter was not argued against the nature of “subjects” versus “citizens”. No reference was made to Quick and Garran, for example.
What the High Court ignored, it seems, is that where different countries share a common Constitutional monarch, their subjects owe allegiance to the same person and cannot therefore be under allegiance to a “foreign power”. Australia, New Zealand, the UK and Canada are Constitutional monarchies, not US-style republics. Allegiance to the “power” is therefore allegiance to the Sovereign not to “the people” of each Dominion or Realm.
Allegiance is to The Queen
To ram the point home, I was born a British subject in 1948 in Sydney. When I entered the Commonwealth Public Service in 1972 I swore allegiance on the Bible to “Her Majesty, Elizabeth II Queen of the United Kingdom of Great Britain and Northern Ireland her other Realms and territories etc.
If Senator Ludlum and Senator Waters are under allegiance to a foreign power so am I – in my own country!
I urge you to take this back to the High Court to defend the fundamental constitutional rights of natural born subjects of the Crown. If this Constitutional revisionism goes on, you will find the day when Mr Dutton and his mega-Security State Department can put a notice in the Government Gazette at midnight one day declaring persons XYZ to be “non-citizens” and therefore incapable of sitting in Parliament and therefore, being aliens, liable to deportation to Macquarie Island.
If you read Quick and Garran, you will see the Commonwealth was never intended to have power over citizenship and alienage. Anstey Wynes in the 60s wrote of our nationality as “Australian British subjects”.
The Commonwealth has usurped a claimed power over nationality it does not possess – with potentially dangerous consequences for civil liberties, as you can see from the purge of two of your Senators.
I do not pretend to like your Party much on the whole but I am an honest man and I thought Senator Ludlum was an honest man and right in his wariness as to “security” issues being abused. I wish to defend his right as a fellow Australian to sit where he has an ancient common law right to sit.
If our nationality and rights to sit in Parliament depend not on ancient common law of allegiance but on the Australian Citizenship Act (as amended form time to time including by regulations and Ministerial determinations), then how safe can any of you be? There are legal precedents for legal purges of Parliaments.
You will recall it took a Civil War to entrench US citizenship as a fundamental Constitutional right. We are about to throw ours away by mistaken per incuriam decisions not being challenged. The Senate should refer the matter to the High Court and fund a challenge as a matter of principle for all of us.
Terry Dwyer B.A. (Hons) B.Ec. (Hons) (Syd.) M.A. Ph.D. (Harvard), Dip. Law (Syd.), CTA is a principal of Dwyer Lawyers, charted tax advisers, of Canberra, and a member of CLA.