For most of modern history, dual citizenship was considered an anomaly at best and an abomination at worst. It has since become a commonplace of globalization. The sequence has been from strong disfavor to toleration; some states have moved to embrace the status. Could plural citizenship now achieve the status of a right?Spiro argues that there is a case for recognising a right to acquire and/or maintain plural citizenship where an individual is otherwise eligible for the status. He bases that argument on "the optics of freedom of association and liberal autonomy values".
Citizenship comprises both a form of association and a vehicle for individual identity. The liberal state has no business obstructing alternate national ties in the absence of a compelling interest. That interest once existed, to the extent that dual nationality destabilized interstate relations, and explains the historical opprobrium attached to the status. Laws directed at reducing the incidence of dual citizenship may also unjustifiably burden the exercise of political rights.He concludes that
Today, the material downside risks (if any) posed by plural citizens have dissipated to the point that the state is no longer justified in suppressing the status. To the extent that dual citizenship undermines social solidarities necessary to liberal governance, that is too diffuse an interest to overcome individual autonomy values.
Meanwhile I have been reading judgments on supposed 'breaks' in constitutional authority.
In Joosse v Australian Securities and Investment Commission [1998] HCA 77; (1998) 159 ALR 260; (1998) 73 ALJR 232 various applicants - heard together - argued that the Magistrates Court Act 1996 (Vic), Statute of Westminster Adoption Act 1942 (Cth), Australia Act 1986 (Cth), Judiciary Act 1903 (Cth), County Court Act 1958 (Vic), Legal Profession Practice Act 1958 (Vic), Police Regulation Act 1958 (Vic), Magistrates' Court Act 1989 (Vic), Supreme Court Act 1986 (Vic), the Corporations Law (Cth), Federal Court of Australia Act 1976 (Cth), Workplace Relations Act 1996 (Cth), the Commonwealth Electoral Act 1918 (Cth) and The Taxation Administration Act 1953 (Cth) alongside a swag of other statutes were invalid or inoperative.
In all five proceedings the applicants contend that there has been an unremedied, perhaps even irremediable, "break in sovereignty" in Australia that leads to the conclusion that some (perhaps much) legislation apparently passed by the Parliament of the Commonwealth, or one or more State Parliaments, is invalid. The written arguments that have been submitted (and supplemented orally) are not always articulated clearly and logically. Nevertheless, the following elements can be identified in the various submissions. xx First, the Constitution is an Act of the United Kingdom Parliament. Yet it has been held in this Court that sovereignty rests with the people of Australia. This is said to lead to the invalidating of certain of the provisions of the Constitution or, perhaps, to those provisions no longer operating. It is also said to lead to the invalidating of some State or Commonwealth legislation. Why this should be so was not spelled out clearly. Secondly, the references in the Constitution to the Queen were intended as references to the Queen in the sovereignty of the United Kingdom[, yet since the Royal Style and Titles Act 1973 (Cth) the Queen has been the Queen of Australia and there has been no alteration to the Constitution. Accordingly, so the argument goes, the Royal Assent has not been validly given to a number of Acts of the Commonwealth Parliament. Thirdly, Australia attained international recognition of its independent and sovereign identity when it signed the Treaty of Versailles or when it became a founding member of the International Labor Organisation. Yet treaties made by Australia, including in particular the arrangements reflected in the Statute of Westminster Adoption Act 1942 (Cth), were not registered as international arrangements as was required by those parts of the Treaty of Versailles establishing the League of Nations. Again this is said to lead in some unspecified way to the invalidating of some legislation.
These three principal themes were developed to varying degrees and in various ways in each of the applications now under consideration. Some, but not all, also sought to develop two other points: first that the Commonwealth Electoral Act 1942 being affected by the earlier mentioned difficulties, no legislation passed after a particular date was valid for the want of valid election of members of parliament and second that some international treaties concerning human rights have direct operation in Australian domestic law. Whether or not it is strictly open to me to do so, I am content to deal with the applications on the basis that each advances all of the various points that have been urged in support of any of the particular applications to remove.
Nevertheless, each application should be dismissed. None of the applicants identifies a point having sufficient merit to warrant removal of the cause concerned into this Court. The points that it is sought to agitate are not arguable.
"Sovereignty" is a concept that legal scholars have spent much time examining. It is a word that is sometimes used to refer to very different legal concepts and for that reason alone, care must be taken to identify how it is being used. H L A Hart said of the idea of sovereignty that:
"It is worth observing that an uncritical use of the idea of sovereignty has spread similar confusion in the theory both of municipal and international law, and demands in both a similar corrective. Under its influence, we are led to believe that there must in every municipal legal system be a sovereign legislator subject to no legal limitations; just as we are led to believe that international law must be of a certain character because states are sovereign and incapable of legal limitation save by themselves. In both cases, belief in the necessary existence of the legally unlimited sovereign prejudges a question which we can only answer when we examine the actual rules. The question for municipal law is: what is the extent of the supreme legislative authority recognised in this system? For international law it is: what is the maximum area of autonomy which the rules allow to states?"
For present purposes, what is critical is: what is the extent of the supreme legislative authority recognised in this system and what are the rules for recognising what are its valid laws?
When one examines the history of Australia since 1788 it is possible to identify the emergence of what is now a sovereign and independent nation. Opinions will differ about when sovereignty or independence was attained. Some steps along that way are of particular importance - not least the people of the colonies agreeing "to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution". But when it is said that Australia is now a "sovereign and independent nation" the statement is in part a statement about politics and in part about what Stephen J in China Ocean Shipping Co v South Australia called "the realities of the relationship this century between the United Kingdom and Australia". What those realities were in 1900 can be gauged from the fact that the delegates negotiating with the Imperial authorities in 1900 about the terms in which the Imperial Parliament was to enact the Constitution were well content to seek to persuade the Colonial Office that the "Commonwealth appears to the Delegates to be clearly a 'Colony'". As the century moved on, further attention was given to the place of Imperial legislation in the self-governing dominions. The Imperial Parliament enacted the Statute of Westminster in 1931 but it was not until 1942 that the Commonwealth Parliament enacted legislation adopting the Statute of Westminster. And then in 1986 the Australia Acts were passed. All these Acts deal with the place of Imperial legislation in Australia. Each can be seen as reflecting the then current view of the relationship between Australia and the United Kingdom. In large part, then, each deals with an aspect of political sovereignty.
Similarly, the way in which Australia has engaged in international dealings can be seen to have changed since federation. And it may be that the Treaty of Versailles or some other international instrument can be seen as according Australia a place in international dealings which it may not have had before the instrument was signed. But what is significant for the disposition of the present applications is not whether the Westminster Parliament could now, or at some earlier time might have been expected to, pass legislation having effect in Australia. Neither is it whether Australia is treated by the international community as having a particular status. The immediate question is what law is to be applied in the courts of Australia. The former questions about the likelihood of Imperial legislation and of international status can be seen as reflecting on whether Australia is an independent and sovereign nation. But they do so in two ways: whether some other polity can or would seek to legislate for this country and whether Australia is treated internationally as having the attributes of sovereignty. Those are not questions that intrude upon the immediate issue of the administration of justice according to law in the courts of Australia. In particular, they do not intrude upon the question of what law is to be applied by the courts.
That question is resolved by covering cl 5 of the Constitution. It provides:
"This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State".
It is, then, to the Constitution and to laws made by the Parliament of the Commonwealth under the Constitution that the courts must look. And necessarily, of course, that will include laws made by the States whose Constitutions are continued, the powers of whose parliaments are continued, and the existing laws of which were continued (subject, in each case, of course, to the Constitution) by ss 106, 107 and 108 of the Constitution. It is not relevant to the inquiry required by covering cl 5 to inquire how Australia has been treated by other nations in its dealings with them or to inquire whether the Westminster Parliament could or could not pass legislation that has effect in Australia. Covering cl 5 provides that the Constitution and the laws made by the Parliament of the Commonwealth under the Constitution are binding on the courts, judges, and people of every State and of every part of the Commonwealth. None of the points that the applicants seek to make touches the validity of any of the laws that are in question or would make those laws any the less binding on the courts, judges, and people.
As I have noted earlier, the second of the three themes identified by the applicants relies on the Royal Style and Titles Act. As I understand it, the principal burden of the argument is that an Act of Parliament, changing the style or title by which the Queen is to be known in Australia, worked a fundamental constitutional change. The fact is, it did not. So far as Commonwealth legislation is concerned, it is ss 58, 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Federal Parliament. So far as now relevant, s 58 governs. It provides that the Governor-General "shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name". And there is no material that would suggest that has not been done in the case of each Commonwealth Act that now is challenged.
The Court was similarly unpersuaded of a 'break' in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; 74 ALJR 68; 166 ALR 302
The Court states
By the present application it is sought to attack the constitutional validity of nine Acts: the "Supreme Court Act" (presumably the Supreme Court Act (ACT)), the Income Tax Assessment Act 1936 (Cth), the Income Tax Assessment Act 1997 (Cth), the Taxation Administration Act 1953 (Cth), the Crimes (Taxation Offences) Act 1980 (Cth), the Fringe Benefits Tax Assessment Act 1986 (Cth), the Fringe Benefits Tax (Application to the Commonwealth) Act 1986 (Cth), the Commonwealth Electoral Act 1918 (Cth) and the Australian Capital Territory (Self-Government) Act 1988 (Cth). Various bases of attack are advanced but all, or nearly all, seem to assert what I described in Joosse as an "unremedied, perhaps even irremediable, 'break in sovereignty' in Australia". The breadth of the attack that it is sought to mount can be gauged from what the Further Amended Notice of Motion says are the "Constitutional issues relating to" the nine Acts I have mentioned:
"a. That this Honourable Court rule that the Royal Commission into the Constitution of 1927 reporting in 1929 and the Inter-Imperial relations Committee of the Imperial Conference 1926 were both incorrect when they ruled as follows in relation to the Dominions and their relationship with Great Britain; 'They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs though united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations' (Appendix C- Page 348). And this Honourable Court is requested it further rule that the domestic sovereignty outlined by these bodies does not and did not exist.
b. That this Honourable Court rule that despite historical links the only legal foundation of law within the borders of the territory of the Commonwealth of Australia is the sovereignty of the people of Australia.
c. That the legislation under which current proceedings before the Supreme Court of the Australian Capital Territory are made derives only from the legal authority of the Imperial Parliament of the United Kingdom through the Commonwealth of Australia Constitution Act 1900 (UK) and is therefore ultra vires within the sovereign nation of Australia.
d. Under the terms of current United Kingdom legislation being the Immigration Act 1972 (UK) which supersedes and overrides prior British legislation all Australian citizens are declared to neither be British citizens, nor British residents and to have no entitlements under British law.
e. By this instrument of the Imperial Parliament all United Kingdom Acts covered by the Imperial Acts Application Act (Cth) insofar as they apply Imperial law to Australian citizens are thereby rendered null and void.
f. Further that the continued application of Imperial law within Australia is in contravention of the decision of the Commonwealth Parliament on 1 October 1919 unanimously ratifying the Treaty of Versailles and explicitly by the motion of the Prime Minister and Attorney General dated 10 September 1919 accepting new independent nation status for Australia.
g. That the creation of the Instrument of Accession to the Covenant of the League of Nations arising directly from the above mentioned decision by the Commonwealth Parliament to be ratified and be bound by the terms of the treaty and the lodgement, acceptance and registration of the Instrument by the Secretariat of the League of Nations constituted a formal acknowledgment of the sovereign independence of the Commonwealth of Australia.
h. That the speech by the Prime Minister, being a legally qualified person, in the House of Representatives on 10 September 1919 as recorded in the Hansard, pages 12163 to 12179, is a recognisable legal precedent establishing the independence of the Commonwealth of Australia as from the date on which the binding treaty was signed 28 June 1919.
i. Further that all courts within the judicial system of Australia are bound by the decision of the superior court of the Nation, being the Parliament of the Commonwealth on the first day of October 1919 recorded at page 12815 of the Parliamentary Hansard, ratifying and accepting as binding the new sovereign status of Australia constitutes a binding legal precedent over all inferior courts including the High Court.
j. That this 1919 decision of the Parliament was acknowledged and reaffirmed by the Parliament in the Report of the Senate Legal and Constitutional References Committee on the Commonwealth Power to Make and Implement Treaties dated November 1995 which was tabled and approved by the Parliament.
k. That Section 4 of the Commonwealth of Australia Constitution Act 1900 (UK) establishes a legal entity, the Commonwealth of Australia, as a subordinate colonial possession of the Crown.
l. That the Constitution of the Commonwealth of Australia being the subordinate Section 9 of the Commonwealth of Australia Constitution Act 1900 (UK) (See Quick and Garran - 'Annotated Constitution of the Australian Commonwealth 1901') setting up the method of government of legal entity established by S4 is dependent upon of the antecedent Sections 1 - 8 of the said Act and requires the continued application of all eight antecedent sections to remain in force.
m. That the change of status to independent nation as duly and validly made by the vote of the Parliament of the Commonwealth on 1 October 1919 with the consent of the Crown and the United Kingdom Government changed the status of the legal entity established by S4 thereby causing the lapse of all antecedent sections pertinent to the former colonial status and thereby invalidating the operation of S9 insofar as it depends on the antecedent clauses.
n. That no legal instrument exists or has existed under the doctrine known as the law of State succession to enable the continued unmodified application of British colonial law within the internationally recognised borders of the new sovereign State of Australia.
o. That the transfer of sovereignty from the Crown of the United Kingdom to the sovereign people of Australia with effect from 28 June 1919 was not codified, limited or modified in any way capable of overcoming the break in legal continuity necessarily arising from the event.
p. That the sovereignty of the people of Australia is not, has not and cannot be expressed through any extant legal instrument, institution, parliament or judicial body since no plebiscite, referendum, enactment of the former Imperial power, or other instrument exists conveying the informed consent of the Australian people to such expression.
q. That all Federal elections held since 1919 have been held under the Electoral Act 1918, a law wholly dependent on the sovereign authority of the Imperial Parliament but whose application to Australian citizens was voided by the Immigration Act 1972 (UK).
r. Further that from 26 January 1949 the electoral role for such elections has included names of voters created as Australian citizens under the National Citizenship Act 1948. Since no power exists within S9 of the Commonwealth of Australia Constitution Act 1900 (UK) to create other than British citizens it therefore follows that parliaments since 26 January 1949 have been elected by unqualified voters and therefore have no status as representatives of the Australian people."
