Josh Frydenberg

The media approach to the continuing section 44 fiasco is morphing from jeremiad to jihad.

After weeks of long lamentations over the failure of Australian politicians to “just do their paperwork” and high-minded declarations about the “highest law in the land”, we’re now moving to the “for god’s sake, do something!” stage where that something is an audit of existing MPs and senators — whatever that may mean.

The demand comes complete with those usual villains standing in the way of righteousness, summed up in The Daily Telegraph’s Friday front page screaming “CONE OF CONNIVERS” over a photo of Turnbull and Shorten.

Now, look, I enjoy a good political crisis as much as the next person — particularly if that next person is also a journalist. A good crisis sells papers — or draws eyeballs, as we should say now.

It’s been entertaining as all get-out to watch self-righteous politicians slipping and sliding on constitutional banana skins to the hilarious dubbed line, “And the High Court will so hold!”

That’s before we get to the hypocrisy of a government demanding respect for 20th century refugees given its record on refugees in the 21st century.

The hysteria over section 44 among journalists and politicians is the farce of the revival of nativism that has shaped so much of media and political discourse in Australia over the past 20 years. Meanwhile, the tragedy is being played out on Manus Island.

Unlike Manus, though, no one has died. In fact, nothing has happened in the Australian parliament — ever — that would have happened differently if section 44 had been more rigorously applied from the very start back in January 1, 1901.

In all this, have we lost all sense of just how offensive it is to demand that people born overseas (or with parents born overseas) prove that they really, truly, are Australians? Have we forgotten where birtherism ended up in the United States? Do we miss the implication that what we seem to be really saying is, “prove you’re Australian like us”?

The case involving Environment Minister Josh Frydenberg on Friday was the nadir. When Prime Minister Turnbull gets all het up in his barrister’s manner, it’s always hard to distinguish between genuine and confected outrage, but he was right to call it out. And the glee with which the right of the Liberal Party embraced it should give pause to those who think this is anything other than grubby internal party politics.

The country managed its way around section 44 for most of its first century by simply ignoring it. It’s clear now that two or three prime ministers and any number of senior ministers were never eligible to sit in the parliament. And there’s a certain satisfying schadenfreude that the first successful candidate to be unseated was from the very nativist One Nation after its success at the 1998 election. Satisfying, because it was the emergence of One Nation — and the political response to it by the Howard Liberal Party — that entrenched nativism as the political consensus position, reinforced out of the combined outcome of the 1999 Republic referendum and the 2001 Tampa incident. It’s corollary — “the Lindsay test” — conflates what nativism permits to be politically achievable with what is morally right.

Although it’s a malleable concept, in the Australian context, nativism technically means the prioritisation of the interests of the Australian-born or bred (preferably at some remove of British descent) over others, whether those others are Indigenous or of non-European descent. Of course, nativists rarely embrace the term; they prefer “nationalists” or “patriots”, or just “true blue”. They stand for Straya or, perhaps, One Nation — with or without capitalisation.

Section 44 is fundamentally undemocratic because it restricts who voters can choose to represent them. It was because our forefathers, in the grip of 19th-century nativism, were fearful that voters, left to their own devices, may not always chose MPs of good British stock.  

Yet lack of political will to change the constitution for anything demands we accept that a constitution drafted back in the 1890s is perfectly formed.

It’s not. Bits of it are nuts. And this is one of those bits. Want proof of what voters think? On the two occasions where MPs have lost their seats under section 44, both were subsequently re-elected with increased majorities.

Barnaby Joyce seems set to be the third.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey

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