Top Scoops

Book Reviews | Gordon Campbell | Scoop News | Wellington Scoop | Community Scoop | Search


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.

© Scoop Media

Top Scoops Headlines


Gordon Campbell: On The Addiction To Chinese Student Fees

Last week, Australian PM Scott Morrison extended its ban on foreign visitors from or passing through from mainland China – including Chinese students - for a third week. New Zealand has dutifully followed suit, with our travel ban ... More>>

Gordon Campbell: On Coronavirus, And The Iowa Debacle

As Bloomberg says, the coronavirus shutdown is creating the world’s biggest work-from-home experiment. On the upside, the mortality rate with the current outbreak is lower than with SARS in 2003, but (for a number of reasons) the economic impact this time ... More>>

Gordon Campbell: On Dodging A Bullet Over The Transport Cost Over-Runs

As New Zealand gears up to begin its $6.8 billion programme of large scale roading projects all around the country, we should be aware of this morning’s sobering headlines from New South Wales, where the cost overruns on major transport projects ... More>>

Gordon Campbell:On Kobemania, Palestine And The Infrastructure Package

Quick quiz to end the week. What deserves the more attention – the death of a US basketball legend, or the end of Palestinian hopes for an independent state? Both died this week, but only one was met with almost total indifference by the global community. More>>

Gordon Campbell: On The Double Standard That’s Bound To Dominate The Election

Are National really better political managers than Labour, particularly when it comes to running the economy? For many voters – and the business community in particular - their belief in National’s inherent competence is a simple act of faith. More>>

Gordon Campbell : On Dealing With Impeccable, Impeachable Lies

By now, the end game the Republican Senate majority has in mind in their setting of the rules for the impeachment trial of Donald J. Trump is pretty clear to everyone: first deny the Democrats the ability to call witnesses and offer evidence, and then derisively dismiss the charges for lack of evidence. For his part, does former security adviser John Bolton really, really want to testify against his former boss? If there was any competing faction within the Republican Party, there might be some point for Bolton in doing so – but there isn’t. More>>

Gordon Campbell: On Why The Dice Are Loaded Against Women..

If they enter public life, women can expect a type of intense (and contradictory) scrutiny that is rarely applied to their male counterparts... More>>


  • PublicAddress
  • Pundit
  • Kiwiblog