The electors rightly regard the “citizenship saga” as a pile of nonsense. It did not need to be so, but the High Court was not up to its job. Worse, latter day xenophobia is being fed by the “security industry” to interfere with our freedoms and our capacity to deal with other nations (except the US).
The man and woman in the street cannot see the point of the “citizenship saga”. They are right. And dare one say, for surely someone must, that the High Court got it wrong, failing in their duty as the legal arm of the state. One of the vital principles of statutory interpretation, i.e. saying what it means, is to identify the intention of the legislator/founding father, and place it in the present context. The High Court chose to duck this requirement. Like the conservative “black letter” lawyers they apparently are, they chose to read the Constitution’s words literally, avoiding the embarrassment of dealing responsibly with the intent of S.44. They didn’t have to. They wimped being good lawyers (?) and avoided doing their duty by the Commonwealth, knowing, as they must have, that this would throw the parliament into disarray, and lead to months or years of pointless applications to their Court. As Trump would say, “Sad”.
What should they have done, Smarty Pants? Well, they could have read the section to be a means to prevent foreign interference in the Australian polity, i.e. where someone had an allegiance clearly to a foreign influence, perhaps indicated by nationality or the commitment to a foreign power, of which evidence might be given, which would rightly disqualify them from our parliament. Well that was the purpose of the section (albeit that our fathers were afraid of French and Russian influence). So incapacity to see the big picture has led to a totally unnecessary, legal joke. They ought to have known, they certainly could have done, better.
But talking of old xenophobias no longer relevant, what about today? We now have the government of no-principles Turnbull wanting to restrict access to our country and its rulers to foreigners. All those of us with an ASIO file (I’m betting I’m one) know just how much faith to put in our intelligence-security industry. Whose side are they on? They advise in favour of US interests, oppose any the US does not like. They have grown in size hugely due to Howard’s determination to do whatever the USA wants, Afghanistan (our longest war, for what ?), Iraq (non-existent WMDs), xenophobic treatment of China. Who does not believe that they most likely were bugging sad Sam Dastyari’s phone? The ASIO files show that having one’s phone bugged, probably illegally, is something they do.
The question hangs in the air, “At whose bidding?” There is sufficient evidence that our security services do the bidding of the CIA, FBI and so on, probably before our leaders. Because they share a world view which may or may not be ours, a blind hatred of communism, socialism or even unionism. Tell me it isn’t so.
We need a security service that isn’t self-promoting in the media and actually looks after us and does not take orders from the US agencies. We need a High Court that can do 21st century right by our polity.
Jim Coombs is an almost retired magistrate and former security sensitive public servant.
Comments
4 responses to “JIM COOMBS. Get a better court, eh, what?”
So producing a result which is unfair, unnecessarily disruptive, and to most people, Silly is OK, then ?
Mr Coombs is on thin ice here but he doesn’t seem to realise it. He argues blithely that the High Court should have taken account of the “intention” of the framers of our Constitution — specifically about S 44 (i) which deals, very clearly and unambiguously, with foreign citizenship; yet the framers of the Constitution offered very little indication of what those “intentions” were, other than the clear meaning of what they wrote. An earlier version actually referred to an “alien power” but it was other sections of S. 44 which were of greater interest. In short, there is next to none of the guidance which he appears to take for granted.
In such cases, what are our courts to do other than to assume that the written laws actually express the legislators’ intentions? and, unless we’re to assume that some forms of “foreign allegiance or citizenship” are approved of (or, to quote “1066 and all that”, are “a good thing”) while others are bad and to be repudiated — something of a “moving feast” over time, I’d suggest — then the answer is (as the High Court was probably trying to tell the politicians) a political, rather than a legal, action: change the Constitution.
And, if they attempted to do so, I would expect them to fail because, unlike Mr Coombs, I do not believe that the requisite majority of the overall Australian population really does want out laws to be determined by people with diverse loyalties. Whether our population would be “right” in rejecting those with multiple “allegiances” is not the question; it’s what they believe (or fear) that determines the law.
I think Mr Coombs and yourself both make some good points and some that are not so good. Holding dual citizenship does not automatically mean diverse loyalties. After all, are not around 50% of Australians (potentially) dual citizens. Australian born politicians are just as easily seduced into accepting money from corporations and foreign donors that affect their decision making. Finally, I think the Australian public are bemused by the whole affair; they just want their politicians to make decisions in the best interests of Australia, rather than self interest and corporate interest that currently drives decision making. Like SSM, this affair is a tiresome distraction from the genuine tough issues facing our country; issues that our politicians do not have the courage or ability to address. The High Court has not helped.
thank you …. straightforward and plausible in all respects