Inside Story

Second-class surnames

Election 2019 | Section 44 has already cast its baleful shadow over the federal poll

Jeremy Gans 26 April 2019 3053 words

Everybody has the chance? NSW premier Gladys Berejiklian and her new ministry about to be sworn in by state governor David Hurley on 2 April. Joel Carrett/AAP Image

When Gladys Berejiklian won the NSW election last month, she famously celebrated how “someone with a long surname — and a woman — can be the premier of New South Wales.” While the gender landmark (among elected premiers) is clear enough, the “long surname” one is a stretch, if taken literally. Berejiklian is just one letter longer than Carruthers, the surname of the state’s premier from 1904 to 1907.

But we know what she meant. In her maiden speech in 2003, she declared that her childhood in Sydney’s Armenian community “taught me to be proud of my cultural background but, more significantly, to value the importance of being a good Australian. This includes being proud of my surname. I thank the good people of Willoughby who voted for me, even though they could not pronounce it.” It was a near-run thing, and maybe her razor-thin victory in the North Shore seat of Willoughby against a local mayor came because she dropped that surname from her campaign posters that year. She had handier wins after that, perhaps because of name recognition.

“What is most important to me,” she declared last month, “is that, no matter what your background — where you live, what your circumstances — everybody in this state has the chance to be their best.” But is that true for federal elections? In the weeks leading to the close of nominations on 23 April, nine candidates preselected by major parties were unceremoniously dropped. Just two — Melissa Parke and Murray Angus — were removed because of opinions they expressed. The other seven lost their chance because of their background or circumstances.

Nine months ago, Mary Ross explained why she wanted to enter politics: “I’m particularly interested in some of the policies Labor has to offer in the area of healthcare and medical services. I’d like to broaden the services available in the drug and alcohol sector, and” — drawing on her experience as a GP founding Wagga’s only bulk-billing medical centre — “I’m very committed to improving access for patients to general practice.” Her profile and six-year membership of the Labor Party led her colleagues to consider her for both the NSW Legislative Council and the Senate. When they opted for the latter, she said, “I’m super excited — I never thought I would be in this position — especially now, when Labor is so strong and has such relevant policies, particularly for the country.”

So, why, just two days before nominations close, did she suddenly delete her social media pages and withdraw from a winnable third position on Labor’s NSW Senate ticket? She referred all inquiries to a party representative, who insists, “Dr Ross has made the decision not to stand at the election as she did not want to spend time away from her patients.” Maybe that’s true. But, if so, why won’t she elaborate and why doesn’t the party deny media reports that there were concerns about her constitutional eligibility? We’re left to speculate on her possible legal problems. Her British ancestry is a possibility, but her commitment to bulk-billing — which may be seen as an agreement with the federal public service, potentially breaching section 44 of the Constitution — and to assisting federally supported Indigenous patients is the more likely culprit.

We do know why the other six withdrew. Liberal Helen Jackson was a victim of the High Court’s cruel ruling in 1992 that constitutional disqualifications bite at the time of nomination rather than election. She was reportedly not willing to quit her job at Australia Post for a quixotic run in the safe Labor seat of Cooper. As for the other five, the answer lies in their surnames: Harker-Mortlock, Kayal, Nguyen, Ghosh and Oski. The first three are victims of the High Court’s ruling last year that it is not enough for a dual citizen to try to renounce a foreign citizenship well before a federal election; rather, they have to succeed before they nominate, a rule that leaves their candidacy at the mercy of a foreign government. Sam Kayal grimly explained last week that his political career “doesn’t seem to be of concern to the president of Lebanon.” The remaining two seem to have the still-hazier problem of possibly being “eligible” for some or all of the benefits of citizenship in India and Poland respectively.

I’ve written before about the reasons why I can’t be elected to federal parliament, including my Jewish-German surname, which reveals my eligibility to reclaim the citizenship Hitler stripped from my father. “Gans” is funny in more ways than one. As was explained in a 2014 article in Slate, European Jews were compelled to take family names in the eighteenth century, and some were “insulting names… foisted on Jews who discarded them as soon as possible, but a few may remain: Billig — cheap; Gans — goose; Indyk — turkey; Grob — rough/crude; Kalb — cow.” After an outcry from (presumably) my namesakes, the author issued a correction for Gans: “While it does mean ‘goose,’ it is a respectable Jewish surname that predates our modern sense of ‘silly goose.’”

I’m not convinced. Consider Daniel Gans, a distant relative of mine who came off the boat from Frankfurt some five decades before my father fled Hitler’s Germany. I first spotted him as the appellant in a 1913 High Court case, and the judgement wasn’t pretty reading. “This is a perfectly hopeless appeal,” begins chief justice Samuel Griffith, before detailing Gans’s claim that the sale price of his heavily indebted leatherworking business four years earlier was so low that it must have been the result of fraud by his own lawyer. Rather than Gans having been hard done by, Griffith observed, it was the people he was suing who got a bad deal, because they were still paying off his debts. Justice Isaac Isaacs (who was presumably unaware that he was distantly related to Gans’s wife) twisted the knife, exonerating Gans’s lawyer for the case’s failings: “The only gross inadequacy in the case that I can see is in the plaintiff’s evidence.”

A search of Trove reveals a fuller litany of Daniel Gans’s litigation woes. At the earlier trial of the same case, Judge Henry Hood said that “he had never seen in all his forty years’ experience of the law a charge brought against two innocent men on such flimsy evidence.” A decade earlier Gans was fined for striking and trying to kick a deliveryman in a dispute about payment for a bag. Decades after, he was sued for calling a trusted employee a thief and a scoundrel, words Gans denied using even as he slandered others from the witness box. The judge found that he was “carried away by indignation” and noted that “three former employees had appeared in court and [Gans] had trouble with all them.” In short, what a goose!

One story did give me pause, however. In July 1916, the short-lived Graphic of Australia devoted itself to a “campaign to oust Germans from Australian trade or positions on teaching staffs of colleges, or other public or semi-public offices,” noting the prevalence of “men born in Germany or of German parentage” in Victoria’s councils and among its justices of the peace. And there, on page seven of this bile, is a story about “Gans of Frankfurt,” who was accused of calling his caretaker a “dirty British rotter.”

The article matter-of-factly records that the caretaker had provoked Gans by using “language of an unpublishable nature referring to the latter’s Hunnish origin in terms of violent abuse” and that Gans’s denials of using a racist term were supported by a “British-Australian.” The Graphic explains that “searching investigations have found nothing to show, in Gans’s trading transactions, that he is disloyal to his naturalisation,” but it had nevertheless reported him “to the military authorities, who are making inquiries.” Daniel Gans had been in Australia for at least thirty years. A later article notes that a “correspondent draws attention to the fact that the Ganses, who run a leather business in Flinders-lane, are pure-bred Huns.” Edith, the daughter of London-born “old colonist” George Isaacs, seemingly acquired pure-bred German status with her husband’s surname.

None of this approaches the racism routinely experienced across Australia from the first fleet to the boats ScoMo stopped. But it does demonstrate the mindset that yielded section 44(i) of the Constitution, the provision that bans dual citizens from being federal MPs. Even the Greens, of all parties, raised it in their submission to the High Court’s Citizenship Seven case:

The provision prevents people with foreign loyalties and obligations from serving in the Australian parliament. This is one aspect of the purpose of safeguarding the integrity of parliament and Australian sovereignty, because the potential for the foreign power to call upon a citizen’s duty, even if it had never done so in the past and even if the person concerned was hitherto unaware of the citizenship, remains a real possibility.

It was this purpose that prompted the High Court to rule that section 44(i) disqualifies even people who were entirely unaware of their foreign citizenship. Because the section “is concerned with the existence of a duty to a foreign power as an aspect of the status of citizenship,” the court held, “proof of actual allegiance as a state of mind is not required.” It is this persistent idea that immigrants and their descendants always have a potential “split allegiance” that explains why Vaishali Ghosh, James Harker-Mortlock, Sam Kayal, Courtney Nguyen and Kate Oski had to withdraw their nominations.

Defenders of the Constitution — including the High Court — say that it doesn’t discriminate against foreigners in general, it simply discriminates against foreigners too lazy to put their affairs in order. As the court found:

While it may be said that it is harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question; the nomination form for candidates for both the Senate and the House of Representatives requires candidates to declare that they are not rendered ineligible by s 44.

Unsurprisingly, the High Court is far and away the least diverse branch of the Australian government. Not only has there never been an Asian, African, Arab or Aboriginal justice, there has never been an Italian or a Greek one. Out of the court’s fifty-three past and present justices, just five were born overseas, four in the British Isles and one in Canada (to Australian diplomat parents). The court’s longest surnames are Piddington and Gavan Duffy. Its rarest surname (relative to the modern Australian population) is Evatt. The only two that are marginally difficult to pronounce belong to current justices: Susan Kiefel who, like her father Abe, was born in Cairns, and Stephen Gageler who, like his father John, was born in the Hunter Valley.

More importantly, the only background tests that each current judge has surely ever faced are the ones for admission to legal practice and for becoming a judge. In the High Court, the test isn’t onerous. The appointees either have to already be Australian judges or have been enrolled as Australian lawyers for at least five years. The last High Court justice to nominate for an election was Lionel Murphy, who last ran for the Senate in 1974, a year before section 44 was first applied. So, it is no surprise that the seven justices would write something like this:

It is necessary to bear in mind that the reference by a house of parliament of a question of disqualification can arise only where the facts which establish the disqualification have been brought forward in parliament. In the nature of things, those facts must always have been knowable. A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the parliament,

As I’ve argued before, the court’s view that questions of foreign allegiance turn on “knowable” “facts” is only true for Australians who (like most of the High Court but less than half of Australia) have ancestors largely born in Australia or in a handful of countries with well-understood citizenship rules. For the rest, resolving these questions requires costly and often equivocal genealogical and foreign legal research to unearth the “facts,” a powerful disincentive to nominees and their parties but much less so to their political opponents who can choose which cases to fight.

The court’s approach also idealises the decision to seek political office as a long-term process of personal reflection accompanied by the careful shaping of a political identity, the cultivation of allies and the requisite genealogical research. However desirable that may be, it does not reflect the experience of those without deep party links (or other acquired or received advantages) whose nomination is the result of impulse, invitation and circumstance. Many of the 1514 candidates for the 2019 election fall within that category, usually making hopeless runs for office but sometimes succeeding in an upset or creating enough of an impression to make less hopeless attempts down the track. As Mary Ross’s candidacy shows, even Labor’s feted vetting team cannot always do the required legal work for such candidates in time.

It is no surprise that, Ross aside, the other withdrawn candidates are all non-Labor candidates running in safe Labor seats and therefore a questionable priority for government parties facing likely electoral defeat. In any case, as recent events show, sometimes the major parties — if they are to offer all Australians a choice of major candidates on election day — have to find new candidates in a hurry. In the case of Mary Ross’s Senate position, Labor was simply able to move its next Senate candidate, Jason Yat-Sen Li, up to the winnable third slot, presumably because he had already been vetted. But, otherwise, and especially for candidates who are likely to lose in May, the major parties had to find a much simpler way to vet. You can see the result (and perhaps their method) in the surnames of the eight newly endorsed nominees for lower house electorates: Blewitt, Bell, Killin, Meecham, Miller, Murphy, Thomson and Wentworth.

(There is also a difficult-to-explain “first name” effect possibly at play. The first names of the seven candidates who withdrew because of their background are Courtney, Helen, James, Kate, Mary, Sam and Vaishali. This follows the pattern in the 2016 parliament, where, despite making up less than a third of MPs, the majority of politicians who resigned or had their elections voided because of section 44 were women. While nearly all disqualified house MPs were re-elected, the replacement senators had to be chosen from further down the ballot paper; nearly all those chosen were men. While Labor has simply opted not to nominate a new Senate candidate in New South Wales to replace Mary Ross, the Coalition hastily found new people for its lower house seats. Their first names? Alistair, Andrew, Gayle, Peter, Robert, Shayne, Stephen and Wayne. Just two women replace the five who were dropped. Previously, I thought that the best explanation of the gender effect of section 44 in the 2016 parliament was coincidence. Now I’m not so sure.)

The nomination process is just one part of section 44’s impact on the next parliament. Last year’s preselections could have been affected in a less obvious way: some people vying for a spot, especially in winnable seats, may have discovered that their funny surnames placed a thumb on their opponents’ scales. Another will play out in the campaign proper, as parties deploy their lawyers to find flaws in the nominees from opposing parties, either to lift their own candidates’ chances or just to embarrass their opponents for their lazy efforts at vetting. And yet another will occur after election day, especially if the result is close, when challenges are brought against elected MPs who fall within the murky outer limits of section 44.

All of this means that there is no chance of section 44 being amended in coming years. Because so many share the High Court’s views about foreign allegiance and lazy politicians, the uphill battle could not succeed without an unreserved commitment from both sides of politics. But, as the Greens’ submissions to the High Court in 2017 amply demonstrate, even the most progressive parties are willing to dilute their traditional support for immigrants and others if they see a political advantage in using section 44 to attack their rivals.

Still, there is one change that could be made without a referendum. If we are going to maintain a ban on federal MPs (and hence ministers) who have potential split allegiances from unknown foreign citizenship, and require all immigrants who run to engage in extensive research and renunciation efforts to show their seriousness, shouldn’t we apply that same test to the third branch of government? The fear of an office holder becoming (or appearing to become) subject to a duty to a foreign government courtesy of an unknown dual citizenship is surely equally applicable to judges who decide the meaning of our Constitution. And, of course, given the seriousness of the decision to become a judge in a protected position until the age of seventy, is it too much to ask any prospective High Court justices — and the governments who are thinking of appointing them — to fully research and resolve their genealogical history long before they are even considered, let alone appointed?

All that is needed is a simple change to the High Court of Australia Act 1979 to bar anyone from being chosen or continuing to sit in the nation’s top court if he or she is not eligible to sit in the nation’s parliament. Such a change would mean that whenever the High Court is asked to interpret one of the cryptic requirements of those sections in the case of a seemingly elected MP, the justices will also be ruling on their own — and all of their successors’ — right to sit on the bench. In other words, what’s sauce for the goose would be sauce for the gander. •