How the Australian Constitution, and its custodians, ended up so wrong on dual citizenship (originally published in The Conversation)

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Members of the Australasian Federation Conference, 1890.
Parliamentary Education Office

Hal Colebatch, UNSW

For those who take only an ordinary interest in politics, the drama over citizenship and eligibility to be a member of parliament has been puzzling. Surely these people looked at the rule book, the Australian Constitution, before deciding to stand for election? Why were their nominations accepted if they weren’t qualified?

Well, it’s not quite that simple. The constitution is not the rule book, but the record of a deal between the leaders of six self-governing colonies to form a federation; it covers what they wanted to cover, and it means what relevant people make it mean.

It doesn’t say that there has to be a prime minister, but it does say that “there shall be an Inter-State Commission”. That we do have a prime minister and don’t have an inter-state commission reflects the way relevant people have used the words in the constitution.

What did the constitution writers think they were doing?

The constitution was put together by many hands over ten years. The qualifications for candidature were drafted by the Tasmanian attorney-general, Andrew Inglis Clark, in a straightforward and inclusive way: at least 21 years old, resident of the electorate, and a subject of the Queen (which would have included New Zealanders, Canadians and Britons).




Read more:
If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?


But Samuel Griffith, the Queensland prime minister (as they were then called), wanted a section on disqualification. This would cover felony, bankruptcy and:

any person who has taken an oath or made a declaration or affirmation of allegiance to a Foreign Power or done any act whereby he becomes a subject or citizen … of a Foreign Power.

So there were separate sections on qualifications and disqualifications, from different sources and reflecting different values, and they took this form in the successive drafts of the constitution.

In the smoke-filled room: the drafting committee

The final session of the constitutional convention was held in Melbourne early in 1898. There was no further discussion of what became the now-infamous section 44, and a drafting committee took over to prepare a final draft.

Edmund Barton – soon to become Australia’s first prime minister – was the chair and dominant figure. He insisted on working till 4 or 5am, even though the other two members of the committee had gone to bed and only Robert Garran, the secretary, was left to maintain the illusion of a committee.

Sir Edmund Barton, who snuck in 400 amendments to the constitution at the last minute.
Parliamentary Education Office

After four days of drafting, Barton presented the convention, on its second-last day, with 400 amendments. He proposed a three-hour break for the delegates to study them, after which they could be put to the vote en bloc.

Barton assured the convention that there was only one amendment of substance – to section 44(ii). What he did not say was that section 44(i) had been completely rewritten, changing it from an active voice (“done any act whereby”) to a passive voice (“is a subject or citizen … or is entitled to”).

No attention was drawn to this change, there was no explanation of it, and there was no time for debate on any clause unless someone objected to it. The constitutional text that proved so significant more than a century later was a last-minute change, drafted in private and accepted out of weariness.

In his history of the convention, J.A. La Nauze points out that, by this stage, the delegates “had had enough”, but muses:

it may one day interest a curious lawyer to inquire whether judicial review has lingered with significant consequences on new words approved on trust and intended … merely ‘to put the wishes of the convention in more complete and concise form’.

As it turned out, it interested more than the curious lawyer, and created a problem which has yet to be adequately managed.

Appealing to the umpire?

The constitution was rather unclear about how these provisions would be enforced. It said both that questions about qualification could be settled by each house, but also that “any person” who believed that an elected representative was disqualified by section 44 could sue them in “any court of competent jurisdiction”.

In any case, there was little call for either until the High Court decided in 1999 that the UK was a foreign power.

Even then it refused to hear a case calling for Tony Abbott and Julia Gillard to produce evidence they had renounced their UK citizenship, on the basis that they had declared that they were qualified, and so the court should presume that they were. To do otherwise would be a vexation and an abuse of the court’s time.

But when the court did deign to interest itself in the matter, it took the traditional High Court view that it was not interested in the problem, or what the writers of the constitution were trying to do, but only with the possible meaning that a black-letter lawyer could squeeze from these words, irrespective of its impact on the governing of Australia.

Where does this leave us?

The situation now is that the qualifications for candidature for the Australian parliament are set by the parliament, but the disqualifications are largely set by foreign governments via the High Court. This diminishes the ability of electorates to choose the representative they want (though, when given the chance, electorates show what they think of the High Court’s action by returning the ousted members in the ensuing byelection).




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Grattan on Friday: Voters just want citizenship crisis fixed – but it isn’t that easy


And the High Court’s escapade in the china shop is not yet over, for it has yet to rule on the disqualification of those who are “entitled to” foreign citizenship, even if they have not applied for it. If the court applied the same logic that it has used in the cases already decided, this would disqualify not only any Jew, but also anyone with a Jewish parent, grandparent or spouse, all of whom are entitled to Israeli citizenship under the Israeli Law of Return.

The best course would be to start with recognising the problem, rather than searching for a preferred solution. In contemporary Australia, identities are often complex, and citizenship entitlements may be multiple and overlapping. How these are to be recognised in the qualifications for candidature demands a period of public discussion culminating in political action.

The only way we could get this is to take the matter out of the hands of the High Court and foreign governments and return the task of defining qualifications and disqualifications for candidature to parliament. This could be done by adding to section 44 the phrase “until the parliament otherwise provides”, which is used in section 30 on qualifications, and at a number of other points in the constitution.

This would be a logical and constitutional response to the political problem that has landed on us. If the five main parties in the parliament (all of which have had their parliamentary representation threatened by the High Court’s actions) supported a referendum to achieve this change, it would probably be carried.

The ConversationThe voters, too, as they showed in New England and Bennelong, have had enough. They want the political leaders to lead.

Hal Colebatch, Visiting Professorial Fellow, UNSW

This article was originally published on The Conversation. Read the original article.

 

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Sex and the sisterhood: how prostitution worked for women in 19th-century Melbourne (originally published in The Conversation)

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Little Lonsdale Street in the 1870s: a number of brothels were located in the area known as ‘Little Lon’.
State Library of New South Wales.

Sarah Hayes, La Trobe University and Barbara Minchinton, La Trobe University

Sex work was one of the major ways poor women could earn a reasonable income in the 19th century. Especially unmarried women with babies. But we don’t hear people say “my great-great-grandmother was a sex worker”. Nor do we often meet these women in our history books. Social stigma belies the importance of prostitution in providing an independent living, and even property ownership, for numerous women in this period.

Prostitution is often lumped together with crime and slums in the historical imagination, but it wasn’t illegal in gold rush Victoria. Nevertheless neighbours in the “respectable” suburbs complained if women danced in the streets or appeared without a bonnet or showed their petticoats, so the police tried to confine sex workers to particular areas.

“These women must live somewhere”, the police said in the superintendent’s 1874 report, and that “somewhere” was the Little Lon district in Melbourne CBD’s north east corner, where the “dressed girls” were kitted out and lived in the “flash brothels” under the supervision of madams, and the less expensive street-walkers took their customers to the “short-time houses” and timber cottages in the back lanes.

Perhaps the most famous inhabitant of this patch was Madame Brussels and her Bellevue-Villa, still commemorated today with a bar of the same name on Bourke Street.

Clientele came from everywhere and every class, but proximity to the all-male enclave of parliament and treasury was a distinct advantage for these fancy brothels. Despite being legal, though, women had to keep quiet or risk arrest and imprisonment under laws against “disorderly behaviour” and “vagrancy”.

The area has been extensively excavated by a series of archaeological projects over the last 30 years, and our recent intensive research on the artefacts recovered (held at Museum Victoria and Heritage Victoria) is revealing much more about the brothels and the women who owned them that had disappeared from memory.

Mrs Bond’s flash brothel

The brothel owned by one Mrs Bond on Lonsdale Street was so quiet that no-one knew it was there until archaeologists dug up her back yard in 1988. The excavators speculated that the site had been a brothel and our work on the artefacts has confirmed it.

Alicia Bond arrived in Little Lon from Ireland as a widow but with a de facto husband suffering from tuberculosis. In 1862 she had three young children to support, and when her son attacked her de facto husband she reported at the trial that “she could not see her children starve”.

Absinthe bottle recovered from Mrs Bond’s rubbish pit (Museum Victoria collection)
Bronwyn Woff

She “had at first taken in washing”, she said to the court, “and then had to keep a brothel to support the family”. She started by renting a back lane cottage for a brothel, and eventually bought her own house on the main street and opened a grocery shop. She then poured her earnings into buying cottages which she rented out to other sex workers.

This cover was very effective and the only reason we know about her brothel is because the artefacts recovered included an uncommonly large number of bottles (champagne (77), imported spirits (4) and absinthe (10)) amongst the rubbish in her back yard, together with over 300 oyster shells. Archaeological evidence shows Melburnians often ate oysters at this time, but they seemed particularly popular at brothels.

Such luxury items were typical of the higher class brothels, where the selection of dinner services and drinking glasses projected middle class status in order to create a familiar environment and attracted a wealthier clientele than the back lane cottages. Mrs Bond’s brothel was not in the class of Madame Brussels’, but it had at least eight rooms and a prominent Lonsdale Street frontage.

Mary Williams’s disorderly house

Around the corner and down a side street, Mary Williams rented two very basic, detached two-room cottages from Mrs Bond. Rubbish discarded in her cesspit indicates a very different class of brothel. There were no imported champagne or absinthe bottles here, only beer/wine bottles (90), two gin/schnapps bottles, one cognac bottle and 165 oyster shells.

CC BY-ND

Mary came from Ireland via a brief marriage in Adelaide, but in 1870, when she was still in her twenties, she left South Australia with George Williams and found herself in Little Lon. Within months George was in prison for theft and in 1872 Mary was described by a policeman as a “drunkard” running one of the most disorderly houses in the lane. She had two babies while she was there, but both died in infancy.

Mary Williams’ brothel doubtless attracted less well-to-do clients than Mrs Bond’s and Madame Brussels’, but sex work provided her with a better standard of living than domestic service or factory work could have done.

A working community

Sex work in the Little Lon district was fraught with dangers, but it also had its upside. Women worked on their own, with friends, or in brothels run by madams (not by men). There was a community of support around the women, often including relatives and the publicans, pawn brokers, grocers and dressmakers they patronised.

Both sides of the coin are evident in the story of Mary Murray, who rented one of Mrs Bond’s cottages. She died after being badly beaten by a client, but it was a friend who took her to hospital. The women relied on each other and there are many other stories of support. For example, when Mary Williams went into labour, she was attended by a neighbour.

Bond family tombstone, Melbourne General Cemetery.
Barbara Minchinton

For some women in this era, sex work was about survival, but for others it was a way of life that offered a rare measure of income and independence. Wages for the kind of domestic work available to women with children (like Mrs Bond) were extremely low, and even lower for girls. In 1878 two young women earning 12 shillings a week as domestic servants told a policeman their wages “wouldn’t keep them in boots”, and they earned more from street work on their nights off.

After her de facto husband’s death, Mrs Bond raised her three sons on the proceeds of her brothel. At the same time, she poured her earnings into property, living and running her grocery/brothel in one house, and renting others to sex workers like Mary Williams and Mary Murray. When Mrs Bond died her property portfolio would have been the envy of many.

This era of relative independence for female sex workers was not to last. The idea of “respectability” was growing and groups like the Salvation Army and the church missions saw prostitution as primarily a moral issue rather than an economic one.

Soliciting in the streets was criminalised in 1891, and the Police Offences Act 1907 made it illegal for landlords and madams to profit from prostitution. This effectively put the flash brothels out of business and sent Victoria into an era of protection rackets and women working under the surveillance and control of men.

The ConversationAre you an academic with an idea for our sexual histories series? Please contact suzy.freeman-greene@theconversation.edu.au if so.

Sarah Hayes, Research Fellow in Archaeology and History, La Trobe University and Barbara Minchinton, , La Trobe University

This article was originally published on The Conversation. Read the original article.

 

Nevermoor: The Trials of Morrigan Crow by Jessica Townsend

‘The journalists arrived before the coffin did.’

Clad in black, Chancellor Corvus Crow reads a statement to the journalists. He advises that his daughter Morrigan is dead and now there is ‘nothing to fear’. Poor Morrigan: one of the cursed children, born on Eventide, doomed to die at midnight on her eleventh birthday. That’s when all the cursed children die.

And, having remarked Morrigan’s death, the story opens three days earlier:

‘The kitchen cat was dead, and Morrigan was to blame.’

Morrigan is blamed for all local misfortunes: it’s the fate of the cursed children. But worse than that, at least from Morrigan’s perspective, is the knowledge that she will die on her eleventh birthday, just three days away.

Just before midnight on her eleventh birthday, as Morrigan awaits her fate, the enigmatic Jupiter North appears. Jupiter, with his fiery red hair and clad in a brightly coloured suit, has come to take Morrigan to safety. Jupiter is hotly pursued by black-smoke hounds and hunters on horseback, but manages to transport Morrigan to the secret, magical city of Nevermoor. Her family believe that she is dead.

Morrigan discovers that she can only stay in Nevermoor if she wins a place in the Wundrous Society. Five hundred children are competing for the nine places available, and the competition will involve four difficult trials. Morrigan is the first child Jupiter North has ever sponsored in these trials, and everyone is interested in why. Morrigan is sure that she doesn’t have the extraordinary talent required, but if she can’t stay in Nevermoor then she will be sent home where she will die.

I loved this novel. I’m recommending it to all of my friends and family members with children, or with an inner child who’d enjoy Morrigan’s journey. Morrigan is a special hero: a cursed and unwanted child, facing both a dangerous competition and at least one secret enemy. But she finds friends as well, in the Hotel Deucalion, so brilliantly managed by Fenestra the Magnificat. Meet Frank the dwarf vampire (the only one in Nevermoor) as well as some of the other children (both nice and awful) with whom Morrigan is competing. There’s so much to like about this novel: the world is nicely imagined – ‘Step Boldly!’ indeed. I’m looking forward to reading the second instalment later this year.

Jennifer Cameron-Smith

#AWW2018

Ghost Empire by Richard Fidler

‘The story of how Constantinople flourished into greatness and expired in terrible violence is one of the strangest and most moving stories I know. I wanted my son to have that story too .’

In ‘Ghost Empire’, Richard Fidler and his son Joe take a trip through Constantinople’s history and touches on Istanbul’s present. Constantinople’s history is long: the western Roman empire came to an end in about 476 CE but the eastern Roman empire lasted until 1453 CE, when Constantinople fell to the Ottoman Turks and was renamed Istanbul. Like Richard Fidler, I find the Byzantine Empire fascinating. Why, I wonder, weren’t we taught more about this in school? Here was an empire that flourished for centuries, straddling Asia and Europe, an empire of contradictions. How was it formed? What were the secrets of its success, the causes of its failure?

‘Constantinople was an old and exhausted city. It had served as the capital of the eastern Roman empire for eleven hundred years, but by 1453 this was an empire in name only .’

This book is part history, part travelogue, and part reflection on a father-son relationship which (in the way of all such relationships) changes as child moves towards adulthood. These three components complement each other, and the book is more engaging as a consequence. I was reminded that while Notre Dame took more than a century to build, the Hagia Sophia was completed in five years and ten months . Richard Fidler’s descriptions and reflections may be as close as I’ll get to the Hagia Sophia, and I enjoyed reading them and imagining myself there.

‘A love of history can sometimes come across as a distraction from the more urgent business of the here and now. But without a grasp of the flow of events that have carried us to the present day, we are all a bit untethered from our place in time and space, condemned to live in an eternal present .’

At the end of their journey, Richard and Joe Fidler walked along the Theodosian Walls. The remains of these walls are reminders of both the might and the fall of Constantinople. While cities evolve, and empires rise and fall, children grow to adulthood and relationships change. At some stage, the present becomes the past.

Richard Fidler may not be an historian, but he is a very engaging storyteller. I enjoyed this book, with its history and anecdotes. Fascinating.

Jennifer Cameron-Smith

Wimmera by Mark Brandi

‘There were some things that were, without doubt, better left unsaid .’

In the summer of 1989, Ben and Fab (short for Fabrizio) are two boys growing up in a small country town in the Wimmera. Best friends, almost teenagers, spending their days playing cricket and catching yabbies. They’ll start high school in 1990. They ride their BMX bikes and dream of owning Nikes. There are shadows in their lives: Fab’s father is violent, and Ben is unsettled by the sudden death of a neighbour. But these are things not spoken of.

‘Thought maybe you could give me a hand .’

And then a man moves into town. Ronnie is big, he looks strong and he strikes up an acquaintanceship with Ben’s parents. He offers Ben some work around his house, an opportunity to earn money. This is the first of a series of events which will end one life and change two others forever.

Twenty years later, Fab is still living in the same town. He’s trapped, by circumstance and inertia. He hopes for something better but seems unable to summon the drive to make it happen. And then a body is found in the river. What happened in 1989?

‘No one knows the things I saw .’

I read this novel four weeks ago and have been thinking about it since. It’s a tough read because of the issues it covers (including child abuse and paedophilia), made tougher because of the age of the boys. All actions have consequences, and as I read through the final part of the novel I kept wondering ‘What if?’. I kept thinking of things that Ben and Fab could have done differently. And then I realised that 11-year-old boys are not adults.

This is one of those novels which is uncomfortable on so many levels. We come to know the two boys in the first part of the novel, travel with them to and through the tragedy. Then, twenty years later, a police interview and a court case take us back to the events of 1989.

I’d recommend this novel: it’s well-written crime fiction dealing with topical issues (domestic violence, child abuse and paedophilia). I’d note though, that while explicit detail is generally avoided, this will not be a novel for all readers.

Jennifer Cameron-Smith

The Naturalist’s Daughter by Téa Cooper

‘We must always record our evidence.  It’s the only way.’

In 1808 at Agnes Banks in NSW, a young Rose Winton is fascinated by her father’s work.  Charles Winton is a naturalist, studying the platypus (or mallangong, as it is known by the local indigenous people).  Charles Winton has been corresponding with Sir Joseph Banks, then President of the Royal Society, about the mysterious animal.  Charles Winton’s ground-breaking research, accompanied by sketches, provides much more information about the platypus than anyone else has yet documented.  Charles Winton is invited to present his findings to the Royal Society but becomes ill and is unable to sail to London.  He sends Rose in his place: there are family connections Rose can turn to.

‘‘Ask all the questions you can think of and remember the Royal Society motto—Nullius in Verba.’

Take no one’s word for it.’’

In 1908 in Sydney, NSW, Tamsin Alleyn is a young woman working at the Public Library.  She’s sent to Wollombi in the Hunter Valley to retrieve an old sketch book which has been gifted to the Library by an elderly woman.    The journal is said to belong to Charles Winton, and if it’s genuine, it may be of great significance.

Two stories, separated by a century.  Two young women, much more independent than is usual for the times.  Two mysteries to be explained.  While the reader will quickly understand where the sketchbook came from, the question of ownership needs to be resolved, as does how the sketchbook ended up in Wollombi.  For part of the story, the reader has more information than Tamsin.  I was engrossed by this stage: I wanted to know how Tamsin would trace the history of the sketchbook.  I wanted to find the links between 1808 and 1908: what happened to Rose, and what about the presentation to the Royal Society?

To write more about the story could spoil it. There is more than one mystery in this novel (in both 1808 and 1908) as well as an occasional melodramatic flourish to hold the reader’s attention.  I really enjoyed the characters of both Rose and Tamsin, and the way in which Ms Cooper presented this story.

This is the first of Ms Cooper’s novels I have read, but it certainly won’t be the last!

 

Jennifer Cameron-Smith

 

#AWW2018

There it is again by Don Watson

‘English is an accommodating language.’

Don Watson is one of my favourite Australian authors. I’ve read each of his books and some of his columns while ‘Recollections of a Bleeding Heart’ and ‘The Bush’ have permanent homes on my bookshelf. When I heard that this book had been published, I added it to my reading list immediately.

The book is a collection of pieces published in various places over the past two decades. It’s an eclectic collection, which includes pieces on management, extracts from his other books and some wonderful pieces on society, politics and aspects of nature.

‘No unprejudiced human being could fail to be improved by the presence of magpies’.

Don Watson’s thoughts about magpies had me reconsidering. For most of the year, I like magpies (the birds, not the AFL team) but in spring I am wary. I need to avoid a couple of streets where I normally walk: the magpies there are very territorial and will swoop almost everyone. But I agree with Don Watson:

‘They are fearless, resourceful, amusing and melodious; and, above all – as all birds have to be – stoic.’

Many of Don Watson’s pieces on management take me back to my public-sector past. I remember mastering the art of writing in third person passive before a shift to active language became fashionable. It didn’t last long.

‘If scientists can regenerate a liver, even grow one from scratch, can a society of authors regenerate a language, or even just defend it ?

I wonder.

Most times I hop on the bus, almost everyone has their eyes glued to a mobile device. Or they are listening through headphones or earbuds, blocking out the external world. Those that don’t are usually my age or older. And as we all sit there in a confined space, in our separate worlds, I think about the role of electronic devices and connectivity in education. One of my favourite pieces in this book is entitled ‘Phoney Education’:

‘This is a shortcoming we have to acknowledge: the best mobile phone in the world cannot do what a teacher can. It is dumb, like a mule, and no more the master of the information we download from it than a mule is master of the piano it carries on its back.’

The best teachers teach us how to determine what is useful, and how to apply knowledge. I’m grateful I grew up in a pre-digital age, that I’ve acquired some skills useful as I wander around the internet.

I enjoyed each of the pieces in this book: others took me into the familiarity of the past while others had me worrying about the future. Each piece made me think: whether it was about country, horse-racing or politics.

Jennifer Cameron-Smith