Seven of Australia’s legislators will appear before the High Court today to argue that they should keep their seats in federal parliament, despite appearing to be in breach of section 44(i) of the Constitution. Even the solicitor general, the Government’s top lawyer, isn’t backing all of them. The cases will determine Australia’s constitutional future and the parliamentary balance of power until the next election. More significant for constitutional law hacks watching along, it will determine the future of Australia’s constitution, specifically section 44.
Meanwhile, although it’s dipped below the radar for now, the US is still conducting not one, but three investigations into Russian interference in the 2016 presidential election. The Senate Intelligence and Judicial committees, as well as Special Counsel Robert Mueller, are looking in to the likelihood that the Russian state deliberately influenced the election which brought the current administration to power. This week the Intelligence Committee said it accepted the intelligence community’s assessment that concluded that Russia aimed to undermine the integrity of the election, ‘denigrate’ Hilary Clinton and get Donald Trump elected. Based on those conclusions, the US has already had a major constitutional and democratic crisis, and the consequences of the current investigations should seek to address that fact.
In common to Australia’s s44 crisis and the US’ Russian meddling though is an underlying fear of the influence of ‘foreign powers’. The emergence of this almost McCarthyist fear of another nation’s interests corrupting the domestic policy of a democratically elected government has re-emerged in the age of false narratives and sabotage-by-media, with Twitter releasing its report into the prevalence and influence of Russian sponsored or controlled Twitter bots and accounts last month. The debate in Australia, as it has run quietly since the last major cases on s44 in the 1990s, has long recommended the removal or significant change of s44(i), including by Senate committees, law reform reports and from the academy. But the shadows of ‘foreign influence’ have loomed large in debate in the US, but also in Brexit and the rise of the far right anti-immigrant line, and the debate in Australia now includes a strong voice for the requirement of undivided national loyalty to be formalised for our politicians. Many rightly ask whether such a requirement denies the multicultural diaspora and immigrant reality of Australian society.
So Australia and the US face two sides of the globalisation coin in their respective crises: the reality of the global citizen brings diverse cultural and national interests to every aspect of society, versus the sovereignty and integrity of domestic democratic processes, traditionally at the core of non-interference, by foreign states or even private citizens or corporations. How liberal democratic states tackle these challenges, accepting or banishing global influences in their constitutional processes, is an ideological question born of the digital and free-movement eras. Australia’s questioning may start in earnest today.