Sep 4, 2017

Rundle: could Israel’s ‘right of return’ ensnare Danby, Dreyfus and Frydenberg in the section 44 thicket?

The constitution specifically proscribes anyone who is "entitled to the rights or privileges of a subject or citizen" from standing for parliament. What does that mean for those who could apply for Israeli citizenship under Israel's right of return?

Guy Rundle — Correspondent-at-large

Guy Rundle


Throughout all the trials and travails of section 44 of the constitution, tales of phantom New Zealanders -- and the possibility that the entire Parliament is invalid -- one issue has remained undiscussed and unexamined: whether any potential of breach arises for a number of MPs due to Israel's "right of return", which is offered to Jewish-descended people and their spouses. The reason? Politics. The argument? That the right to apply for citizenship does not constitute "the rights or privileges" of citizenship itself.

But that discussion may have to be had if the case of Labor MP Katy Gallagher becomes the subject of a High Court referral. Gallagher has the right to apply for Ecuadorian citizenship, under that country’s 2008 revised constitution. Some of the ever-growing number of citizenship experts say that the "right to apply" does not meet the section 44 standard. However, Mary Crock, professor of public law at Sydney Uni, told The Daily Telegraph, of Gallagher’s case:

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19 thoughts on “Rundle: could Israel’s ‘right of return’ ensnare Danby, Dreyfus and Frydenberg in the section 44 thicket?

  1. lykurgus

    The short answer is “no, no and maybe”. The ALP asks about your grandparents during preselection; and if it looks like there might be a problem, you get a phone call.
    Speaking as someone who’d love to get rid of Danby, the “reasonable steps” High Court decision covers unrenounceable rights like “Right of Return” in their cases, because the party makes candidates take such steps (quietly, but the party will have it on file).
    But that doesn’t cover Frydenberg, because his party doesn’t screen its candidates that thoroughly – as we’ve seen.

    1. lykurgus

      Also, do you really think the Coalition hasn’t spent years looking for a way to get rid of Dreyfus?

  2. John Robertson

    Danby is an apologist for Israel whatever atrocities they commit and has no place in an the Australian parliament.

    1. lykurgus

      I’ve always maintained that he was on the wrong bench – but then I’ve said the same thing about EVERY Shoppie.

  3. Dog's Breakfast

    “What’s really sticky about all this is that relations between Australia and Israel are one of the places where the question of dual loyalties anticipated by section 44 exactly comes into play.”

    Exactly, and especially given that these same MP’s will line up more in accord with Jewish national policy than Australian national policy where there is a conflict.

    On plain reading, this is exactly the purpose of Section 44, from a layman’s perspective.

    Section 44, the gift that just keeps on giving.


    The idea that another country could couple irrevocability with automatic citizenship is presumably the limit of the nonsense now on centre stage.

  5. Nudiefish

    I find it intriguing the lack of chatter in fixing s44 via referendum. The country awaits judicial activism rather than use the more traditional route.

  6. Jackson Harding

    Already done and dusted, see the paper by John Kalokerinos on this issue.
    The case of Crittenden v Anderson decides this matter. In this case it was alleged that Mr Anderson owed allegience to the Papal States by virtue of his being Catholic. Fullagar J found that this would bar any Catholic from standing, this would be a gross misinterpretation of s.44, and more importantly this would be in violation of s.116, which he held to trump s.44

    Nothing to see here, move along.

    1. Dog's Breakfast

      That would be case closed, if Israel were a religion. I’m fairly sure that Israel is a country, and that the citizenship availability is regardless of being of jewish faith, i.e., if you have antecedents but are not a practising jew then you would still have the right to apply.

      In that case, the precedent quoted would not be a precedent for the purposes of deciding this case.

  7. Will

    Fascinating argument, Guy, which has got me wondering –
    Doesn’t the Israeli ‘right of return’ run foul in any event of s.44’s prohibition on “any acknowledgement of allegiance, … or adherence to a foreign power” for reason that the right is available only to Jews, and therefore (unless renounced) implies allegiance/adherence to Israel as the Jewish state?

  8. Richard

    Not just the issue of the wicked “Right of return” (unavailable of course to any Palestinians). The matter of an expression of “adherence” to another power by pretty much every federal politician, with the obvious exception of a sadly small number of principled people, should certainly be addressed.
    If the possession of a piece of paper that implies loyalty to a foreign country sans an actual declaration to that effect is so important as to justify expulsion, what of all those who bend the knee and/or genuflect reflexively any time the Zionist Israeli lobby so demands it?

  9. AR

    As usual, grundle asks the questions, with due diligence, which no other journo would touch with the proverbial,yours or a barge pole.
    Just a pity that the Member for Haifa Ports couldn’t be removed by his electorate.
    Whatever his genes, Dreyfus is a waste of space who demonstrated his lick spittle with his weaker-than-piss W/B “reforms” and was rewarded with… I forget, as it was such a wank position.
    As for Frydemburgs he, like gHunt, is someone prepared to argue black-is-white in the interests of party preferment. No loss.

  10. Graham R

    To me this from S44 is crystal clear:

    “or entitled to the rights or privileges of a subject or citizen of a foreign power … ”

    I do not see how the High Court can find anything other than exactly what it says – that an Australian MP cannot even be ENTITLED to citizenship of a foreign power or to any of its rights. I believe the wording is intentionally broad. This applies to the unfortunate Waters and Ludlam too (Barnaby is unfortunate here too – but not as unfortunate as Australia, which has to endure him as acting Prime Minister from time to time).

    And I am not buying Professor Rubinstein’s line of argument at all: if by “right” he means “entitlement,” then S 44 is absolutely clear that the right to a right is precisely what S44 is talking about_ it says precisely this in precisely those words.

    Could this whole thing be made to go away by having MP’s modify their oaths of office by swearing, upon investiture, to renounce all entitlements to rights under foreign powers? Make current MP’s take the new oath too?

    Yes I know that does not get around the tricky problem of foreign powers, like Boy Scouts dragging the old lady across the road, forcing their entitlements upon Australian MP’s; but by renouncing such entitlements upon swearing the oath an MP would surely satisfy the High Court that they have done all in their power to divest themselves of such unwanted entitlements?

    After ceasing to be MP’s, of course, they could again apply for their foreign entitlements – but by then it would no longer be an issue.

    1. drsmithy

      The only thing that should matter is your legal status.

      If you are eligible to claim citizenship of another country, but have not, then your legal status to that country is no different to any other foreigner. You have no rights or privileges in that country.

      Anything else is into pre-crime territory.

      This should be obvious from the sheer logistics. You’d struggle to find many people in the country who are not, through one avenue or another, eligible to become a citizen of some other country.

    2. Hyperstimulated

      a new oath of office wouldn’t cover it. the last time this came up in ~’92 the high court rule that even though they had renounced foreign citizenship as part of gaining Aus citizenship they still ran afoul of s44

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