Section 44 twist: Former Aussie PM was probably ineligible due to multiple citizenship

Former Australian Prime Minister John Gorton was probably ineligible to be in Parliament due to holding multiple citizenships, according to research published on this blog.

John Gorton PM
John Gorton (Credit: Wikipedia / NAA)
Gorton, who served as PM from 1968-1971, stated on official documents that he was born in Wellington, New Zealand. If that’s accurate, then under the 1948 British Nationality and New Zealand Citizenship Act he would have been a Kiwi citizen before he was first elected to Federal Parliament in 1950.

And that means Australia’s 19th Prime Minister should have been barred from taking his seat under Section 44i of the Australian Constitution.

Having a British father also entitled Gorton to certain citizenship rights in the UK, including the right to live there, which could also be interpreted as falling foul of Section 44.

Gorton’s citizenship status appears to have been overlooked at the time, and there is no record of him renouncing his non-Australian nationalities.

The rules in the Constitution state that disqualification applies to anybody who is “a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power” – though its exact meaning is open to interpretation.

The historical case is yet another twist in the Section 44 scandal, which has already disqualified two Senators and raised questions about the eligibility of others.

Gorton became Prime Minister after the disappearance of Harold Holt, and was responsible, amongst other things, for decriminalising homosexuality in 1973.

Gorton was probably a New Zealander

Gorton was likely to have been born in Wellington, therefore automatically acquiring New Zealand citizenship at birth.

There is some uncertainty about the former Liberal leader’s birthplace (no birth certificate has been found), however most records attribute it as Wellington. This was apparently confirmed to John Gorton by his own father.

John Gorton therefore stated Wellington as his place of birth on official documents including his RAAF enlistment papers.

Gorton RAAF licence

Anyone born in New Zealand at the time received automatic citizenship under the 1948 British Nationality and New Zealand Citizenship Act, which was retrospective to include those born before the Act was passed

To complicate matters, there is some suggestion Gorton may have been born in Victoria, and not Wellington. The birth of a ‘John Alga Gordon’ was registered in Prahran for 9 Sep 1911, the day John Grey Gorton was born. However, this is thought to be due to inaccurate records. Gorton’s parents were unmarried and may have even distorted the facts of the birth intentionally to avoid a paper trail.

Gorton’s authorised biography in 2002, which Gorton himself fact-checked before publication, states that Gorton’s father (who frequently travelled to New Zealand) at some point “informed his son that he was actually born in Wellington” – hence this was what was then disclosed on official documents.

He was also British (kind of)

Note: due to shifting nationality laws over the years this gets quite complicated! 

At the time of Gorton’s election to Parliament in 1950 all Aussies were still technically British subjects under the British Nationality Act 1948, so having a British father didn’t really affect his citizenship status at the time. All Aussies were ‘British subjects’.

John Gorton registered himself as British when obtaining a UK pilot’s licence in 1932 and living in England. The document is now held in the archives at the National Library of Australia’s and reproduced here*:

Gorton UK pilot licence

By itself, that’s no particularly strange thing, given it was standard practice at the time for Australians to give their nationality as British.

But as nationality law changed over time, so did the rights of those with a British father compared to other Australians who did not have a direct link to the UK.

The UK Commonwealth Immigrants Act (1968), passed into law just after Gorton became PM, gave some additional rights to those born to a British father.

This was followed by the UK Immigration Act (1971) few years later, which came into force shortly after Gorton had been ousted as PM but was still sitting (probably illegally, due to his NZ heritage) as a front-bench MP. The 1971 Act included the ‘right to abode’ for those with a British parent.

So in line with Section 44 of the Constitution, Gorton was entitled to special treatment because of his direct heritage since 1968, the year he became Prime Minister. Does that mean he was in breach of Section 44 again, given he enjoyed “rights and priveleges” of a foreign country? It’s a very grey area (like the whole of Section 44i) and open to interpretation and debate.

I can find no record or mention of John Gorton renouncing his New Zealand or British citizenship at any time, and it seems unlikely he would have done so. He was probably not even aware of all the various and complex nationality laws in play at the time (and didn’t have Google to help work it all out!).**

So it seems likely John Grey Gorton was ineligible to be elected to Parliament in 1950 because of his New Zealand citizenship – and not something he could really argue against anyway given he stated Wellington as his place of birth on official documents. It is also arguable that he was doubly ineligible to be in Parliament later on because of his British links.

What does all this mean? Not a lot perhaps, except to again show how unintelligible Section 44i of the Constitution is, and how unintentionally wide its net may be.

It also makes you wonder how many other former Ministers were ineligible to be sitting in Parliament at the time.

* I was made aware of Gorton’s UK pilot’s licence via reference to it in Ian Hancock’s authorised biography John Gorton: He Did It His Way (2002).

** Though get in touch if you can provide any further evidence to about his citizenship status – ten bucks to anybody who can locate a birth certificate!

***UPDATE FOR GEEKS 6/11/17***

I’ve had some feedback arguing the High Court has already ruled the UK was not a “foreign power” until the Australia Act in 1986, which severed the UK’s remaining legislative powers over Australia. I don’t think this is completely accurate though. As I understand it, the High Court deemed the UK was a foreign power from at least 1986 onwards. Before that was not tested as it wasn’t relevant to the case being discussed. And also that ruling was a split decision amongst the judges, not a unanimous one. So the status of UK as a “foreign power” before 1986 is still untested, as I understand it… but then I’m not a constitutional lawyer. Comments in the comments if you are.

One comment

  1. In 1950 would New Zealand have been considered by the High Court to be a “foreign power?” Certainly British subject status wasn’t considered “foreign.” My first passport, issued in 1968, declares me to be an “Australian citizen and British subject.” On my second passport issued 5 years later the words “and British subject” are blotted out with a rubber stamped row of “X”es.

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