Quick post: Is s44 of the Constitution xenophobic? No, @johnb78. It isn’t.


Over on John Band’s blog, he writes about ‘Abbott Birthers’.  Similar to the argument that Obama was ineligible to become President of the United States due to his birth, some nutter lefties in Australia believe that Abbott is ineligible to be Prime Minister of Australia because of his (alleged) British citizenship.

Birthers are, of course, lunatics and — really — who cares?  It’s this kind of mealy minded procedure-trolling arguments that make people generally irritated with the legal system.  Oh, great.  You were technically correct about something and used a provision in a way nobody’d have predicted.  You’re very clever.  Take a choc drop and go away.

The part of Band’s argument that I find more interesting is this bit:

One of the major drivers behind Federation was settler paranoia about non-white people and people of non-English descent, and the desire to impose greater control on borders [4]. This is reflected in the Constitution, whose Section 44i bans people who are “a citizen… of a foreign power” from standing for federal parliament.

It’s a common story that’s told — ‘settlers’ (ugh) were afraid of migrants and so Federated.  Is it true?

No.  Actually, the exact opposite of this is true.  One of the major arguments against federating was that the colonial governments would lose control of their borders and would be forced to accept migration standards that weren’t in their favour.  In the late 1800s, immigration laws in the Australian colonies became something of an embarrassment.  Robert Garran’s notes on the Constitution include example after example of discussion about whether some of the pre-federation colonial laws could even be given royal assent by the governors because they impacted so harshly on other members of the British Empire (mostly Indians), and because they seemed to contravene various treaties between the Empire and the Chinese.

Queensland had particularly draconian laws in this regard, and levied increasingly absurd fees on non-whites.  It is true that the colonies were worried about the porousness of their borders, but the response to this was for other colonies to pass similar laws — not to federate.

So full of nonsense is Bard’s assertion, the constitution itself explicitly disagrees with him.  The loss of immigration powers to the Commonwealth was a bit of a sticking point, so Andrew Inglis Clark proposed something of an ingenious solution: the much maligned s25.

On first reading, this section is kind of weird but it’s helpful to know that different colonies had different rules when it came to who could vote in their elections: some were only slightly illiberal while others were very illiberal.  The more xenophobic states wanted to keep their terrible rules, so Inglis Clark (through s25) says: ‘Okay, guys.  Fine.  Keep the ability to be terrible people, but if you exclude particular races from voting in your State elections, you can’t add them to your population count for the purposes of calculating the number of seats you get in the House of Representatives.’  In other words, s25 is stone cold, black and white rebuttal of the idea that Australia federated to keep out non-whites.  s25 is an explicit attempt to get more liberal treatment for them by incentivising the States to stop being so shit.

So let’s get back to Crazy John’s crazy views of s44.

Sue v Hill contains an explanation of what the provision is about.  Sovereignty.

The expression “a foreign power” in s 44 does not invite attention to the quality of the relationship between Australia and the power to which the person is said to be under an acknowledgment of allegiance, obedience or adherence or of which that person is a subject or a citizen or entitled to the rights and privileges of a subject or citizen. That is, the inquiry is not about whether Australia’s relationships with that power are friendly or not, close or distant, or meet any other qualitative description. Rather, the words invite attention to questions of international and domestic sovereignty[50].

Far from being motivated by xenophobia, federation was motivated by an increasing sense of an Australian identity amongst Anglo-Australians and plain, old fashioned economic interest.  Isaac Isaacs, for example, was a member of the ‘Natives Association‘ and said that he genuinely looked forward to the day that he could call himself an ‘Australian’ (as opposed to merely ‘Victorian’).  As a young country with a new population, the drafters of the constitution were worried about vesting supreme legal authority upon a body that wouldn’t have Australia as its sole interest, especially when a large component of its power was to be external relations and trade.  Sure, Germans might have been in the background of the thought — as later reports suggest — but so what?  It’s still a far cry from John’s claim:

This clause came out of fear of fifth-columnists, traitors, Germans, Chinese spies, and all the other things that continue to fill the nightmares of white right-wing hicks.

It’s the same attitude that influenced the drafting of Article 2 of the United States Constitution.  The framers were worried about misuse of executive power in the interests of foreign powers at the expense of Americans.  Thus, the natural born citizen clause.

There were a lot of racists in the debates.  Isaac Isaacs was called ‘Jew boy’ on several occasions.  There were no indigenous participants in the debate, nor Chinese (who made up a substantial proportion of the population at the time).  There were no women.  No openly gay people.  And so on and so forth.

But it is wrong to jump from that position to a position of reading all provisions through the ‘racist’ lens.  John’s interpretation isn’t supported by Australia’s constitutional history, and many of the facts (such as the colonies having existing mechanisms to restrict immigration) outright refute his claims.

I don’t own a dog called Nancy.



2 thoughts on “Quick post: Is s44 of the Constitution xenophobic? No, @johnb78. It isn’t.

  1. You’re missing a rather important point here: the provision clearly didn’t only apply to people who solely cared about Australia’s interests, because it applied to any British subject – whether they were 4th-gen First Fleeters or just off the boat from Canada…

    • Sykes v Cleary covers that. The relevant words are ‘allegiance to foreign power’ and Australia’s interests were considered harmonious with the Empire’s interests. If it were a racist, xenophobic provision, why didn’t it exclude Indian nationals?

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