Many naturalised migrants who regard themselves as “dinky-di” are pained that a High Court ruling has turned them into second-class citizens unable to stand for Parliament, writes Karen Kissane.
JOHN DELACRETAZ took his Australianness, wrapped it around a rock and lobbed it through a window at the High Court of Australia – figuratively speaking. He had been born in Switzerland, a country that would always have a place in his heart, but he and his wife, his multi-million-dollar business and two younger generations of his family had been firmly planted in Australia for decades. Long before he and his wife took out citizenship in 1960, “We were already Australian by heart; Australian by fait accompli.”
The High Court, he says, took that away from him, turning him and many other naturalised migrants into second-class citizens. In 1992, the court ruled that the Constitution forbade anyone who held dual citizenship to stand for Federal Parliament. Mr Delacretaz, who had been the Liberal candidate for Wills, would have to renounce all connection to Switzerland if he wished to stand again. Instead he wrote an angry letter to the High Court renouncing his Australian citizenship.
“It was sad, but what could I do?” he asks. “I was furious. I was Australian! It was a slap in the face to say: `You have to send a letter to your mother saying you are no longer her son.’ I wouldn’t have it. I was very hurt.” In his letter he wrote, “If I had known in 1960 that one day I would be branded a second-class citizen, I would never have accepted Australian citizenship. My conscience and my honor oblige me to cancel. Neither the certificate nor the passport are true to name (or) worth the paper they are written on.” He was certain that the Mayor of Coburg, who had presided over his naturalisation, and the migrants who had shared it with him had not known of “the fine print lost under the dust of the Constitution”.
The “fine print” was section 44(i) of the Constitution, and the way it was interpreted by the High Court sent politicians of all parties scurrying to check their citizenship status for fear of losing their seats. The section says that “any person who is under any acknowledgement of allegiance, obedience or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power” cannot enter Parliament. In some ethnic groups, even second-generation Australians are affected: many nations still recognise as citizens not just their native-born who migrated to Australia, but those migrants’ children and grandchildren as well.
The High Court made the citizenship judgment in the Cleary case, where it found the election of independent Phil Cleary to the seat of Wills to be void because, as a teacher, he held an office of profit under the Crown, making him ineligible to stand. The court said that the seat could not be filled by a recount of votes because the other two main candidates – Mr Delacretaz and the ALP’s Bill Kardamitsis – were ineligible because they had not taken “all reasonable steps” to renounce their other citizenships.
The finding enraged many migrants and the High Court was accused of “ethnic cleansing” of the Australian political system. Naturalised Australians were confused: what does it take to prove loyalty to this country, to become truly Australian? Is it right that a higher proof of loyalty be demanded of MPs than of others? The judges themselves were divided about this; two considered that Mr Kardamitsis and Mr Delacretaz had taken “all reasonable steps” when they made oaths of allegiance and renunciation at their naturalisations. The majority verdict, however, held that they were required to write to their countries of origin, formally renouncing any citizenship rights.
Citizenship is in the eye of the bestower. Nations decide whom they consider their citizens, and some can be reluctant to accept renunciations. Says an exasperated Mr Kardamitsis, who was born in Greece but became an Australian citizen in 1973: “Am I supposed to take up arms and go and shoot all the parliamentarians in Greece and ask them to change their Constitution? The fact that the Greek Government wants to recognise me as one of their citizens is their problem. I can’t help it. It’s got nothing to do with me. And there’s no way Australia can impose on other countries to change their constitutions to suit us.” Mr Kardamitsis wrote his letter to the Greek Government and received no reply, but, according to the High Court ruling, he does not need evidence that his renunciation was accepted, only that it was made.
At one stage it was thought the Labor Party’s Theophanous brothers, Andrew and Theo, might be up for three renunciations: the Cyprus in which they were born, and the Greece and Turkey that claimed its territory. As it turned out, they were safe because they had emigrated while it was still under British rule. But, says Theo Theophanous, Leader of the Opposition in Victoria’s upper house: “It seems to me absurd that we in Australia should rely on what another country does in relation to its citizens in order to determine whether they qualify for citizenship rights in this country.”
The points on which such issues turn can be ludicrously fine. Greens senator Christabel Chamarette was born in India of British parents and came to Australia when she was four. Her post-Cleary inquiries elicited that her status depended on whether her father, who had been a doctor, had worked in private practice in India or in British Government service. Because he had worked privately, she did not have dual citizenship.
The Western Australian Labor backbencher Graeme Campbell forfeited his British citizenship, despite his belief that it was not a problem – “At the time the Constitution was written, we were all British citizens” – because he had no time for a court
battle before the last election.
Labor senator Jim McKiernan, who was naturalised in 1978, found it “very, very hard” to renounce his Irish citizenship. “I felt like I was tearing up and shedding my roots,” he says. “Really, in retrospect, it doesn’t make any difference. It hasn’t changed my accent. It hasn’t changed the fact that I was born and spent 16 years in that country. But now, I can’t go into the country where I was born and enjoy its citizenship rights.”
The Cleary case merely drove home what several review bodies had already pointed out. A Senate standing committee, a constitutional commission and a constitutional convention had all expressed concern about the potential consequences of enforcing section 44(i), according to Geoff Lindell, a reader in constitutional law at Melbourne University.
In the 1980s the Senate standing committee on legal and constitutional affairs recommended that the provision be abolished and replaced with a statutory requirement that candidates make a declaration about whether they held dual citizenship and, if so, what steps they had taken to renounce it. The committee believed that candidates who refused to take such steps should not be automatically disqualified, and that it should be left to voters to decide on their suitability.
But any change to section 44, Mr Lindell says, would require a constitutional referendum.
The provision was designed by a white colonial Australia to try to protect the nation from subversive intervention by foreign powers.
Today, says Cheryl Saunders, professor of law at Melbourne University, “the really interesting question is whether this is still a sensible policy. My own view is that it’s going to become increasingly difficult to sustain. As people move around the world more, and while the citizenship laws of different countries remain so different, I think we will find it necessary to relax this.”
If change does come, it will not be soon. The Opposition, the Government and the Democrats have no policy on the issue and no plans for a referendum. A spokesman for the Attorney-General, Mr Lavarch, says: “It may be the sort of thing that might be considered as a consequence of the republic process, but for the time being it’s not a live one.” In the short term, at least, candidates will have to comply or bow out. But while it may be a matter of indifference to mainstream politicians, the issue is hotly debated in ethnic communities.
It is not as if loyalty to the old country negates loyalty to the new, says John Delacretaz – they exist together. He points to his involvement in the Australian community – the local church, the chamber of commerce, 22 years in the Rotary Club of Coburg – and says: “We have done a lot of things for Australia. And our true nationality is where our children are born, much more than with the land of our ancestors. But we should not have to lose our heritage; we are all very proud of our ancestry. I heard the former minister, Mr Kerin, say he was proud of being a descendant of convicts. We are all proud, wherever we come from.”
First published in The Age.