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Australia's Queen Is A Foreigner

A referendum on whether Australia is to ditch the Queen is not due until later this year, but already the High Court of Australia has found, in a controversial decision earlier this month, that the United Kingdom and Northern Ireland is a foreign power. This resulted in Heather Hill, One Nation's leading Queensland candidate for the Commonwealth Senate, being disqualified from taking her Senate seat from 1 July, because she held dual British and Australian citizenship at the time she was nominated.

Section 44 of the Australian constitution disqualifies any person who is a subject or citizen of a foreign power.

Ethnic Chinese Australians initiated the legal action in opposition to One Nation and its odious policies.

The High Court is the highest in the land. It is higher than the State-based "supreme" courts and, unlike New Zealand, there is no Privy Council.

The Senate seat will roll down to the next One Nation candidate. No other States returned One Nation candidates to the Senate.

The Court's decision is rich in ironies.

First, One Nation prides itself on being an Australian First party opposed to immigration and foreigners "taking over". And yet their candidate turns out to be disqualified for being a foreigner.

Second, the UK is declared "foreign" despite the fact the Queen of Australia and the Queen of the UK are one and the same person - Mrs Elizabeth Windsor.

Indeed, the Australian Constitution makes absolutely clear that executive power is vested in the Queen. In 1901 it was Mrs V Saxe-Coburg-Gotha (Queen Victoria), and now it is Mrs Windsor.

But the Court referred to a British Court's decision that "whilst there is only [one Mrs Windsor], in matters of law and government, the Queen of the UK, for example, is entirely independent and distinct from the Queen of Canada".

The Court found that Mrs Windsor, as Queen of Australia, now takes advice exclusively from Australian Ministers, whereas up until the 1920s, she also took advice from UK Ministers.

Third, the UK was, of course, the imperial power before the foundation of modern Australia in 1901, and - as with New Zealand - the Union Jack regrettably still features prominently in the national flag.

One Judge had problems with this. It was not foreign in 1901, so just when in the last 100 years did the UK become a foreign power?

The Court's judgments trace the development of the Constitution and, by its operation, the gradual evolution of the UK from ‘home’ to ‘foreign power’. But they don't answer the dissenting judge's question.

New Zealand faces the same problem. When was our ‘Independence Day’?

The Court's decision raises some interesting questions for the numerous New Zealanders in Australia, the vast majority of whom continue to hold either exclusive New Zealand or dual citizenship.

Are there now two classes of Australian citizens?

Is New Zealand also a ‘foreign power’? It would seem so. Although Australians would tell you that even if New Zealand were "foreign", it doesn't qualify as a ‘power’.

A current Federal Minister ditched her New Zealand citizenship at the last minute a few years back precisely to avoid Heather Hill's fate.

Can dual Australian – New Zealand citizens hold positions in the Commonwealth bureaucracy? On the other hand, the Constitution makes explicit provision for New Zealand to join the Australian Commonwealth, most notably the second paragraph of the three paragraph preamble: "And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen" [my emphasis].

And the ANZCER free trade agreement effectively provides for a single trading bloc. And during the silly season last summer both governments mooted currency union.

The proposed new currency was dubbed the ‘Zac’ over here.

New Zealand took part in the numerous conferences leading up to Federation in 1901, but dropped out sometime in the 1890s. The reasons New Zealand dropped out would be fascinating.

It wasn't distance. Darwin, Perth, even Uluru (Ayers Rock), are further away from the ‘centre’ than Wellington.

TransTasman trade was significant. For example, much of Northland's Kauri ended up in Australia.

So in the 1890s the New Zealand elite must have felt a desire to remain separate from Australia. One aspect of the Constitution may give a clue - section 127: "Aborigines not to be counted in reckoning population." This section was not repealed until after a 1967 referendum. Maori, on the other hand, had obtained the vote nearly 100 years earlier in the late 1860s. [So the 13 year lag for a sort-of GST is an improvement.]

A more likely factor may have been fear of importing ‘radical’ politics. Earlier upswings of ‘labour militancy’ were attributed to immigration from Australia - for example to West Coast mining regions.

The High Court decision is timely, coming as it does not long before the republic referendum.

There is widespread agreement that an Australian should be the Head of State in the 21st Century, not Mrs Windsor, who it now turns out, is a citizen of a foreign power. There is, however, widespread disagreement on just about everything else, including the minor detail of where sovereignty is to be located under a republic. But that's another story.

Will Australian become a republic before New Zealand?

It looks likely unless Helen Clark wins later this year and makes republicanism a priority. And a republic raises equally, if not more, ticklish issues for New Zealand, notably the status of the Treaty of Waitangi.

But if New Zealand remains under the Crown, it can take some comfort form this. It is at least theoretically possible that individual Australian States might remain constitutional monarchies, within an Australian Federal Republic. In which case executive power within a State forming part of the Republic would continue to be vested in Mrs Windsor, a citizen of a foreign power.

Whoever said constitutional law isn't fun?


Simon Orme made narrow escapes from both the New Zealand Treasury and Ministry of Foreign Affairs and now lives in Sydney, attempting to make the NSW electricity sector user friendly.


Groupies of matters legal can check out: for the decision, and for the Australian Constitution. Australian law is free on the web, unlike in NZ.

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