Image for Abetz, the Constitution & the Law

An Eric Abetz has been a Liberal Party Tasmanian Senator since 1994. An Erich Abetz was born in Stuttgart on 25/1/1958 and came to Australia with his family on the Castel Felice arriving 22 March 1961. He was issued with a German passport on the 22 July 1971 in Melbourne number C1674055 in which he gave his nationality as German. His mother applied on his behalf for citizenship in September 1974 and was asked to supply his birth certificate and passport, these two documents will be requested for my petition to the High Court.

An Erich Abetz was granted a Certificate of Australian Citizenship No. AC(G) 102404 in his own right, aged 16, by the Government of Australia on 3rd December 1974 in Hobart, I ask, what is the purpose of the (G) in the Citizenship Number? he having sworn the Oath of Allegiance.

The Oath of Allegiance or Affirmation incorporates the words “renouncing all other allegiance” This does not suspend or renounce citizenship. Each individual nation sets the rules as to how an individual citizen can divest themselves of their citizenship. The High Court has determined that the procedures in each specific case must be followed. Senator Abetz has not demonstrated he has met this requirement.

In 1994 an Eric Abetz was elected to a Casual Vacancy in the Senate.

Prior to his nomination Abetz’s obligation by birth, as a dual citizen was to renounce his allegiance to a foreign power in accordance with section 44 of the Australian Constitution. This is not the responsibility of the Australian Government. All naturalised German citizens are equal but those naturalised citizens who hold dual citizenship who wish to stand for the Australian Parliament have to renounce that second citizenship before doing so. A not unexpected requirement.

If you examine the records of the Tasmanian Parliament a joint sitting on 22 February 1994 appointed Abetz to fill a casual vacancy. The Hansard record does not provide the specific information to match each of the requirements of either the Australian Electoral Act nor the several sections of the Australian Constitution. The Tasmanian Parliament cannot produce the paper records supporting the Liberal Party’s nomination of Mr. Abetz to fill the casual vacancy.

Further, Mr Ray Groom the then Tasmanian Premier when nominating a Mr Eric Abetz for the Senate on 22 February 1994 in the Tasmanian Parliament stated “I tender the nomination in writing. It includes the necessary certification that Mr Abetz is a member of the Liberal Party that he is willing to hold the seat if chosen and that he is not disqualified from holding the place in the Senate …”

Where is the evidence that he is qualified - being not disqualified is merely Mr Groom’s opinion, a very strange choice of words indeed. The onus is on the candidates declaration to establish the opposite proposition, that he is qualified. Maybe the short window of weeks involved between nomination and election worried Groom but the die had been cast.

Should you write to the German Embassy, as I have done, to ascertain the citizenship of Abetz, correctly, for privacy reasons, they will not tell you.

A paragraph from the AEC publication Electoral Backgrounder No 2—Parliamentary Report on Section 44 of the Constitution identifies the justification for section 44:
“The purpose of subsections 44(i) and (iv) of the constitution is to protect Australia’s parliamentary system by disqualifying candidates and members of parliament who are at risk, or might appear to be at risk, of allowing conflicts of loyalty to affect their performance as members.”

A further extract demonstrates the seriousness of the issue. In the past eight years there have been two major constitutional challenges in the High Court to the qualifications of elected candidates, the first involving the election of Mr Phil Cleary in the Division of Wills in 1992, and the second involving the election of Ms Jacqueline Kelly in the Division of Lindsay in 1996. Both elected members of the House of Representatives were subsequently disqualified by the High Court, sitting as the Court of Disputed Returns, because they held an office of profit under the Crown, contrary to section 44(iv) of the Constitution, and both cases also raised the issue of foreign allegiance under section 44(i).

Section 44(i) states:
“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… shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”

The Cleary case of 1992 showed that “Migrants who become naturalised may keep their original citizenship if their country of origin permits. Though in the past officials did not emphasise this fact, de facto dual citizenship had existed in Australia for a long time. This situation has its origins in international law. In 1930 Australia signed the Hague Convention on Certain Questions relating to the Conflict of Nationality Laws (this treaty came into force in Australia July 1937). This Convention holds that citizenship is a status granted, or revoked, by the nation concerned: Australia cannot deprive a German of their German citizenship just as Germany cannot deprive an Australian of theirs. Migrants who took the Oath of Allegiance before the renunciation phrase was removed in 1986 may have imagined that their public renunciation of all other allegiances meant that they had legally repudiated the citizenship of their country of origin. In 1992 this was made clear to all in the High Court judgments in Sykes v Cleary and Others. After 1992 and Cleary everyone with an interest in citizenship should have known. Abetz is both a lawyer and a barrister, he knows or should of known that the devil is in the detail when he entered the Senate two years later in 1994.

Thus a candidate must be a citizen of Australia and he or she must not be a citizen of any other nation. The Cleary case focused on de facto dual citizenship and made the implications of Section 44(i) clear for all naturalised Australians. Parliament can change Australian Citizenship rules but only the people can change the Constitution.

In the Sue Neales’ article in the Mercury “Legal bid to oust Abetz” Friday July 30th, 2010 ( Linked on Tasmanian Times, HERE ) Erich Abetz states that he wrote to the German authorities in 1993 before he was elected. One can therefore assume that he had sensibly read the then Electoral Backgrounder.

The Electoral Backgrounder No 19 for his 2004 election under which he currently sits in the Senate states: “Information for Dual/Plural Citizens
22. As a consequence of the recommendations of the House of Representatives Standing Committee on Legal and Constitutional Affairs in relation to section 44(i) of the Constitution, the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) maintains a database on the procedures for renunciation of other citizenship in various countries. The following information on renunciation procedures is drawn from the DIMIA database and is provided to assist intending candidates who hold further citizenship(s) in addition to their Australian citizenship.

United Kingdom
• British citizenship may be renounced with the approval of the Home Secretary. A person must make a declaration of renunciation of the British citizenship on an official form (RNI) which can be lodged at the British High Commission in Canberra.

People’s Republic of China
• Chinese citizenship may be renounced by application to the Ministry of the Public Security. In most circumstances, PRC citizenship is lost upon acquiring a new citizenship but confirmation should be sought from the Embassy of the People’s Republic of China Canberra.

Germany
• German citizenship may be renounced with the approval of the Ministry of Interior: Persons should contact the Embassy of Germany in Canberra.”

I have cited other countries to demonstrate some of the alternatives required by citizens to renounce their citizenship so as to discharge the obligation that the High Court states must be adhered to.

The Neales article continues: “Senator Abetz said he wrote to the German Embassy in 1993, renouncing any lingering claims to German citizenship he might have…. I renounced my German citizenship in that letter, full stop… that letter said that I understood my German citizenship had been forfeited back in 1974 when I became an Australian citizen, but that they should let me know if there was anything further that I needed to do.  Senator Abetz said he never heard anything further, leaving him convinced he did not hold dual citizenship that could make his Senate nomination invalid.” Ipso Facto he should have been aware as a then practicing barrister of the implications of the Sykes v Cleary case of 1992.

This would imply that he never received a reply from the German authorities accepting his renunciation of citizenship and confirming that he was no longer a German citizen,  he therefore stands condemned by his own hand.

In 1994 the Government of Germany required no action be taken on his becoming an Australian Citizen. I suggest that he has sat knowingly in the Parliament on filling a casual vacancy since 1994 and being elected in 1998 and again 2004. He probably became aware of his problem and the disaster his oversight could create after taking up his seat in 1994 and thought the best answer was to let sleeping dogs lie, unfortunately the obligation arose under Australian Law the moment he sought to become a candidate.

According to his website “About Eric” Abetz has been the Chair of the Senate Legal and Constitutional [Affairs] Legislation Committee, I ask in light of the above, why?

First published, 03.08.10 10:38 am