Albanese says Voice must be in the Constitution


Michelle Grattan, University of Canberra

Opposition leader Anthony Albanese says an Indigenous “Voice” to parliament must be enshrined in the Constitution.

His position, spelled out in a speech to be given on Saturday to the Garma Festival, makes it difficult to see how he and Prime Minister Scott Morrison will be able to agree on a referendum question.

Albanese says in his address, released ahead of delivery:

With a Voice in place, there can be truth-telling, and there can be Makaratta. […] It is clear to me that enshrining that Voice in the Constitution is what must come first.




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Morrison has been adamant there should be no reference to a Voice in what is inserted in the Constitution to recognise Australia’s First Peoples.

Without bipartisan support, a referendum would not have a chance of success and, indeed, would not be put.

Indigenous leaders in the Uluru Statement from the Heart called for “the establishment of a First Nations Voice enshrined in the Constitution”.

Albanese says:

I want a Voice and Truth then Treaty to be part of our nation’s journey, part of our national life. It’s not just about respect and redress. It’s about progress and change. It’s about moving out of the darkness

Although there is a gulf between Albanese and Morrison over what should go into the constitution, Albanese says he still hopes for bipartisanship.

“We have not yet had true reconciliation, and a country that is not truly reconciled is not truly whole. And until we are whole, we will never reach our truest potential as a nation – and we have so very much potential,” he says.

But how can we have reconciliation when one side has no voice?

The Voice is the bedrock upon which we must build.

I will take the fight to the government on so many things; never have any doubt about that. But on this we must work together. We must be together. My hope we can have bipartisanship on this remains alive.




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Politics with Michelle Grattan: Ken Wyatt on constitutional recognition for Indigenous Australians


Albanese says he is encouraged by “the tentative moves towards constitutional change” by the Minister for Indigenous Australians, Ken Wyatt. “I hope he gets the support he needs and deserves from his colleagues.”

He says he is also encouraged by “the epiphany experienced by Barnaby Joyce.

“After being part of the chorus pushing the myth that a Voice would amount to a third chamber in parliament, Mr Joyce did something unusual. He stopped. He listened. He asked questions from people with knowledge. […]

“Mr Joyce then went on television to own up to his mistake, and to explain why he’d been wrong. And he encouraged others who’d made the same mistake to follow his example.”

At Tuesday’s caucus meeting Pat Dodson, the opposition spokesman on Indigenous recognition, said constitutional recognition had now been decoupled from everything that was in the Uluru statement. Uluru had now shifted to “co-design with select individuals”, he said.

Dodson said there was no structure for formal consultations with First Nations. “Apparently the minister has a plan for consultation with the Coalition backbench and apparently with Pauline Hanson”, he said.

The challenge now was to “assist the minister without walking away with all the fleas and ticks that would undermine a principled position”, Dodson said.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Changing the Australian Constitution was always meant to be difficult – here’s why


Anne Twomey, University of Sydney

Debates about constitutional change in Australia inevitably raise the poor success rate of referendums. Only eight out of 44 attempts have ever succeeded and there has not been a successful constitutional change since 1977.

So why was the referendum chosen as the means of amending our federal constitution, and was it really intended to be so hard to succeed?

In the 1890s, adopting a referendum as the means of amending the constitution was quite radical. None of the countries from which the framers of the constitution drew precedents and inspiration – the United Kingdom, Canada and the United States – used a referendum.

Why then did Australia take a different path and entrust the people with the final decision on constitutional change?




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The UK supported flexible constitutions and easy change

In the United Kingdom, the view was taken that every generation had the right to change the constitution to suit its own needs. Accordingly, it did not have a formal constitution with restrictions on how it could be amended. Instead, the UK had a range of legislation dealing with constitutional matters that could be changed by the vote of an ordinary majority in parliament.

In the 1850s, when the New South Wales Constitution was being enacted, NSW politicians wanted to:

frame a Constitution in perpetuity for the colony – not a Constitution which could be set aside, altered and shattered to pieces by every blast of popular opinion.

But the British government inserted an overriding provision in the statute that approved the NSW Constitution, which allowed the constitution to be amended by ordinary legislation passed by the NSW parliament. They sought to ensure that the people, through their parliamentary representatives, were free to change their constitution as and when it suited them.

Federal systems need rigid constitutions and more difficult change

When it came to making a constitution for an Australian federation, such flexibility was not possible.

A federal constitution confers different powers at the federal and state level. If the federal parliament had the power to change it by passing ordinary legislation, then all powers and protections of the states could be easily removed, destroying the federal system. That meant that a “rigid” or “entrenched” constitution was needed – one that could not be amended simply at the behest of one level of government.

The two obvious federal examples to draw on were Canada and the United States. The Constitution of Canada was set out in a British statute of 1867. Because it did not contain an internal mechanism to amend the constitution, only the British parliament could amend it.

The framers of the Australian Constitution did not want to go begging to Westminster whenever they wanted to amend their constitution. They wanted control over the constitution to rest in Australian hands. So they rejected the Canadian approach.

The other well-known federal example was the United States. Despite all the constitutional rhetoric of “we, the people”, the US Constitution has never been amended by a direct vote of the people. Instead, it requires a constitutional amendment to be initiated and ratified by a combination of special majorities of votes in Congress, the state legislatures or especially established conventions. The people do not get a direct say.

How the referendum was seen in the 1890s

In the 1890s, the referendum became the subject of much study and interest outside its existing use in Switzerland and in parts of the United States at state and local level.

One strong and influential supporter of the referendum in the United Kingdom was A. V. Dicey. This was surprising, as he is best known for his support of parliamentary sovereignty. But Dicey saw the referendum as both democratic and conservative. In 1890 he said:

It is democratic, for it appeals to and protects the sovereignty of the people; it is conservative, for it balances the weight of the nation’s common sense or inertia against the violence of partisanship and the fanaticism of reformers.

Dicey was opposed to Home Rule for Ireland and saw the referendum as a means of allowing the people to veto constitutional change that would otherwise be imposed on the country due to party-political considerations.

In 1894, he described the referendum as “the People’s Veto”. In words that might well resonate today, he expressed concern that

the art of Party warfare is turning into the art of bribing and confusing voters.

To him, the referendum was a means of defeating change by relying on the general reluctance of people to risk the unknown. It is as if he had foreseen the history of federal referendums in Australia.

Why Australia chose the referendum

The idea of adopting the referendum, both as a means of approving a federal constitution and later amending it, was raised by Alfred Deakin in 1890 and Charles Kingston in 1891. They approached the issue as one of democracy, rather than conservatism.

Nonetheless, the 1891 Constitutional Convention rejected the proposal for a referendum. Sir Samuel Griffith argued that constitutional change was complex and it was not practicable for voters to be familiar with every detail. He considered an elected convention of political experts was better suited to dealing with such issues.

The convention ultimately approved a model similar to that in the United States, involving passage of an amendment by an absolute majority of both houses of the federal parliament, then approval by special conventions in a majority of states.

By the time of the 1897 Constitutional Convention, however, Griffith was gone and those supporting a form of more direct democracy prevailed. The referendum was chosen, but it was still to be subject to several hurdles.

There was no intention that the constitution be easy to change. Tasmanian Premier Sir Edward Braddon observed that the feeling of the convention was:

… that it should be made as difficult as possible to amend the Constitution.

While it was not to be made “absolutely impossible”, the constitution should not be easily capable of change upon “any fluctuation of public opinion” or in response to a crisis of a temporary character.

What is needed for a referendum to pass?

So what hurdles must be overcome for the Australian Constitution to be amended?

First, the amendment must be approved by an absolute majority of each house of parliament, or it must be passed twice by an absolute majority of one house, with an interval of three months in between. This effectively gives the federal government control over what goes to a referendum, because even if the Senate alone approves a referendum, it still requires the governor-general to put it to the referendum. On the only occasion this occurred, in 1914, the governor-general acted on the advice of the government not to hold the referendum.

Secondly, once a constitutional amendment is put to a referendum, it has to be passed by a majority of all the electors who vote. Since 1977, this has included electors in the territories.

Thirdly, a referendum must also be approved by a majority of voters in a majority of the states. That means that there has to be majority “yes” vote in four of the six states.




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There are also special requirements if the constitutional change would diminish the proportionate or minimum parliamentary representation of a state or affect the borders of a state, in which case the approval of a majority of electors in the affected state is required.

The political hurdles to referendum success

These are the legal and constitutional hurdles. But as Dicey noted in the 1890s, and many others have since, there are numerous political reasons why referendums fail. These include poor proposals, fear of change, political opportunism by governments or oppositions, a low level of public understanding of constitutional matters, poor campaigning and sheer inertia or public disinterest.

Constitutional change in Australia is always an uphill battle, but that is no reason to shirk it. Instead, it should be a spur to produce better proposals for constitutional change, develop strong and clear arguments for reform, cultivate widespread public support and undertake vigorous, but honest, campaigns.The Conversation

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Section 44 soap opera: why more MPs could be in danger of being forced out


H. K. Colebatch, UNSW

One thing we learned from the recent election campaign is that the political crisis over Section 44 of the Constitution has not gone away.

Many candidates in the election had their eligibility to stand for parliament questioned and some were even forced to withdraw from their races.

Despite all the attention given to this matter over the last couple of years, and the various procedures introduced to address it, Section 44 will only continue to be a problem until the parliament steps in to address it.

To do that, we first need to address seven myths about Section 44.

1. Everyone knows their citizenship, they just need to do their paperwork

Section 44 is about more than just citizenship – it covers a variety of restrictions on who can serve in parliament.

For instance, a GP who bulk-bills a patient could be considered to have a “pecuniary interest in an agreement with the Commonwealth.” And a postman or a nurse in a public hospital could be deemed to hold “an office of profit under the Crown.”

On citizenship, the section doesn’t just disqualify dual citizens, it also bars those “entitled” to citizenship elsewhere (even if they haven’t applied for it) and those “entitled to the rights and privileges” of citizenship (basically, the “right of abode”, or being entitled to enter a country and live there).

Such entitlements are not easy to discover and almost impossible to remove, because they’re embedded in foreign legislation.




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2. It doesn’t affect many people

On the contrary, the parliamentary committee investigating the matter estimated half the adult Australian population, or more, could be disqualified by law or impeded in practice from standing for parliament.

In the recent election, we saw one potential candidate withdraw because she was an Australia Post employee and another because she was entitled under Indian law to some privileges of Indian citizenship.

As a result, the Australian parliament becomes even less representative of the Australian people.

3. The constitution framers knew what they were doing

The original text agreed to at the constitutional convention in 1898 simply said anyone who had acquired foreign citizenship by their own act was disqualified from standing for parliament.

The text that eventually became Section 44 was inserted surreptitiously by one of the key architects of the constitution (and Australia’s first prime minister), Edmund Barton, as a drafting amendment. He introduced 400 amendments on the second-to-last day of the convention, but made no mention of this change, and expressly denied there had been any changes to Section 44 apart from a minor one to another subsection.




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4. The High Court has sorted it out

Far from it. Very few cases challenging Section 44 have made it that far, partly because the court has done everything possible to fend them off, including trashing the constitutional provision giving citizens the right to challenge the eligibility of parliamentarians. Politicians have also refused to refer cases to the court unless it’s advantageous to their party.

And when the court has heard a case, it has construed its task so narrowly as to give little guidance to future action on the section. In particular, it has said nothing about the disqualification of those MPs “entitled to the rights and privileges of citizenship” in other countries.

In fact, when Senator Matthew Canavan’s eligibility was challenged because Italian laws had changed to permit citizenship to descendents of native Italians, the High Court noted that the law was fairly generous, but one had to apply. Canavan hadn’t applied, therefore couldn’t be an Italian citizen.

But if he had applied and then received Italian citizenship because he was eligible (as his brother had done), he would have been disqualified by Section 44.

This was all too much for the court to sort out. As a result, it offered no clarity on the large number of MPs whose eligibility hangs on what sorts of “entitlement” would disqualify them.

Senator Matthew Canavan was not disqualified after the High Court ruled his Italian citizenship was ‘potential,’ not actual.
Mick Tsikas/AAP

5. But there are administrative checks now, too

Well, yes, but nobody does anything about them. In 2017, all MPs were asked to fill out a form documenting their ancestry and citizenship, and the responses were then logged in a citizenship register. This showed some 15-20 MPs were entitled to foreign citizenship and a total of 59 had the “right of abode” in the UK, which the High Court has decided is the key to the “right and privilege” of citizenship.

But no action was taken on any of these cases. The register appears as a matter of record only.




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Similarly, although the Australian Electoral Commission is now requiring candidates to complete a similar form, it does not take action against those who refuse to submit it, or leave sections blank. One candidate was referred to the police, but this was clearly a pointless face-saving exercise.

6. We want our MPs to be unequivocally Australian

Having foreign ancestry does not make you un-Australian. Section 44 does nothing to establish the strength of identity or loyalty – it simply prevents an undefined, but potentially very large, slice of the population from standing for parliament.

One case illustrates the ludicrous reach of the present wording.

After Lithuania regained its independence in 1990, it passed a citizenship law that gave people born outside the country to Lithuanian parents the right to citizenship. In 2016, this provision was expanded to cover those with Lithuanian grandparents. As a result, Senator Doug Cameron, whose Scottish burr we are used to hearing on news broadcasts, became eligible for Lithuanian citizenship.

While Cameron could (and did) renounce his British citizenship to qualify for election to the Australian parliament, he cannot renounce his entitlement to Lithuanian citizenship. And while some people have very strong views about Cameron, I have never heard it suggested he was working to a Lithuanian agenda rather than an Australian one.

Senator Doug Cameron was born in Scotland, but his grandparents are from Lithuania – a fact he had to disclose on the new citizenship register.
Mick Tsikas/AAP

7. It’s too hard to change the Constitution

The same thing was said about amending the Marriage Act to permit same-sex couples to marry. The public recognises there’s a problem with Section 44 and it expects the politicians to fix it.

The best shot came with the Joint Standing Committee on Electoral Matters, which recommended adding the words “until the parliament otherwise provides” to Section 44. This would not change the law, just where the law is made.

Instead of disqualifications being defined by the laws in foreign countries, as the High Court has interpreted Section 44, they could be determined by the Australian parliament. This is how qualifications of senators and members are currently decided. It’s also how women got the vote in 1902.

If this proposal was strongly supported by all the parties and clearly explained to the electorate, it would likely pass in the next election.

So where does this leave us?

It all comes down to leadership. Up to now, both the Coalition and Labor have been primarily motivated by partisan advantage: how can we use Section 44 to score a political point?

The Joint Standing Committee showed that with a willingness to collaborate, there is a path forward to solving the problem. The best we can hope for is that after the trauma of the last few years, and the evidence of the continuing decline in support for the main parties, political leaders will see that acting constructively on Section 44 might actually be in the best interests of both parties.The Conversation

H. K. Colebatch, Visiting Professorial Fellow, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: Section 44 remains a constitutional trip wire that should be addressed


Michelle Grattan, University of Canberra

The fact the Victorian Liberals are having to change candidates in three seats draws attention to an issue that should be properly fixed but won’t be any time soon – the problem of section 44 of the constitution.

The candidates who’ve fallen over were to run in seats where the Liberals don’t have a chance – Wills, Lalor and Cooper (formerly Batman) – so it’s of no particular political importance that they have to be replaced. Another three flag carriers can be rustled up before nominations close.

But we are reminded of how lethal section 44 has been and how, even now, a major party can have trouble ensuring all the relevant checks have been done.

Some 17 members of the last parliament fell victim to the section – 15 in relation to citizenship, in what was a highly disruptive running crisis. This amounted to 13% of the Senate and 4.6% of the House of Representatives. There were seven byelections.

Section 44 disqualifies anyone from being a candidates if he or she

“(i) 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 citizen of a foreign power: or

(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or

(iii) is an undischarged bankrupt or insolvent: or

(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or

(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons.”

Of the three Liberal candidates in the news two had citizenship issues and one is an Australia Post employee.

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Obviously lessons have been learned and actions taken to avoid the appalling ructions of the last parliament.

The parties are working much harder at checking – although you have to wonder how efficient minor parties like One Nation will be.

Also, as part of the nomination form submitted to the Australian Electoral Commission, candidates must now fill in detailed questions on Section 44 matters. If they have been a citizen of another country they must provide documentation that they have renounced.

A candidate’s details will be published (with provision for redacting some personal details).

But the AEC is not responsible for “vetting” the candidates. Nor should it be. That is not its role. Anyway, it couldn’t be, given the short time frame involved.

A parliamentary inquiry into the impact of section 44 on Australian democracy, headed by Liberal senator Linda Reynolds (now a cabinet minister) concluded in its report last year that: “Large sections of the Australian community are disqualified from nominating for election [….]

“Some of those automatically disqualified from nominating under s. 44 may be able to address the reasons for disqualification by quitting their public sector job or successfully renouncing a foreign citizenship before nomination, but many will never be able to.

“With the changing demographic of our nation, s. 44 will increasingly disenfranchise more and more citizens from nominating”.

The inquiry also pointed to a somewhat esoteric risk. It said there is “a significant, but previously unexamined, aspect to s. 44 and its interpretation by the High Court. This may lead to an avenue to manipulate an election.

“Any otherwise eligible Senators and Members who are elected on preference flows could have their position challenged, if they relied upon the preferences of an ineligible candidate. This has the serious potential to affect the overall result after the election has concluded, at any point during the term of Parliament.”

The inquiry recommended a referendum to repeal the section, or insert the words “until the parliament otherwise provides”.

If it passed, the committee said, the government should engage with the community “to determine contemporary expectations of standards in order to address all matters of qualification and disqualification for parliament through legislation”.

The committee recommended mitigation in the meantime, while the ground was prepared for a referendum, including full disclosure at nomination, which has been introduced.

It’s easy enough to understand why the political parties are reluctant to contemplate going down the referendum path.

Few referendums succeed, not least because they require not just an overall majority, but a win in a majority of states.

Further, a section 44 referendum would likely involve a divisive debate around whether there should be a change from the Australian-only citizenship qualification for standing for parliament.

And there are other referendum priorities – for example to include in the constitution some form of Indigenous recognition.

On the other hand, mitigation can never adequately deal with section 44 hazards. On citizenship, the section means Australians can be hostage to changes in overseas law. Also, people do not always have access to information to put their status beyond doubt, or it may be a difficult and costly process to do so. This may discourage some potential candidates exercising their democratic right.

If there are not any early parliamentary casualties in the coming term, the parties won’t feel any pressure to secure a permanent solution on section 44. Nevertheless it remains a piece of constitutional housekeeping that needs addressing.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The latest citizenship-stripping plan risks statelessness, indefinite detention and constitutional challenge


File 20181123 149703 siy087.jpg?ixlib=rb 1.1
Home Affairs Minister Peter Dutton and Prime Minister Scott Morrison unveiling tough new proposals to strip extremists of their Australian citizenship.
Joel Carrett/AAP

Sangeetha Pillai, UNSW

This week, Prime Minister Scott Morrison and Home Affairs Minister Peter Dutton announced the federal government’s intention to introduce changes to Australia’s citizenship-stripping laws. The proposed changes would likely make Australia’s regime for citizenship-stripping the most expansive in the world. I’ll outline how the proposal would change the current law, and analyse its key elements.

What are Australia’s current citizenship-stripping laws?

In 2015, Australia introduced one of the most expansive regimes anywhere for citizenship deprivation on national security grounds. Under the current law, people can lose Australian citizenship against their will in two key ways:

  • Conduct-based citizenship deprivation: In certain circumstances, a citizen outside Australia can lose citizenship where the person has engaged in activities defined by reference to national security offences. A person does not need to be convicted of an offence to lose citizenship in this manner.

  • Conviction-based citizenship deprivation: The Minister for Home Affairs also has the power to revoke a person’s Australian citizenship where the person has been convicted of particular national security offences, and sentenced to at least six years’
    imprisonment. This is generally the only way in which people within Australia can be stripped of Australian citizenship against their will.




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Currently, it is possible for the government to strip a person of Australian citizenship only if the person is a dual citizen. This means that, at present, Australian law does not allow a person to be deprived of Australian citizenship if this would render them stateless.

Dutton has said that the existing citizenship-stripping laws have been used to deprive nine people of their Australian citizenship. Very little information on the circumstances of these deprivations is available. However, it is clear that at least six of these instances involved citizens outside Australia who lost their citizenship on the basis of conduct committed overseas. There has been no reported instance of a person within Australia being deprived of Australian citizenship, or of the conviction-based ground for citizenship deprivation having been used.

What changes would the proposed laws introduce?

The government’s new proposal would make it easier for people to be stripped of their Australian citizenship in two ways.

Changes to the dual citizenship requirement

If the proposed changes become law, it will no longer be necessary for a person to definitively hold dual citizenship before losing Australian citizenship. A joint media release from the offices of Morrison and Dutton states:

The Government will…change the threshold for determining dual citizenship. This change aims to improve the minister’s scope to determine a person’s foreign citizenship status.

A bill has yet to go before parliament, and it is not clear from this statement exactly what the government envisages. One possibility is the legislation will give the minister the power to decide whether or not a person is a foreign citizen. This is likely to raise constitutional difficulties. As the High Court has made clear on many occasions, whether a person is a foreign citizen is a question determined by the law of the foreign country concerned.

Another possibility is that the legislation will allow a person to be stripped of Australian citizenship where the minister thinks it is reasonably likely, but not certain, the person has dual citizenship. As the recent referrals of multiple federal parliamentarians to the High Court over potential foreign citizenship illustrate, it can often be difficult to conclusively determine when a person has foreign citizenship. However, many people – including those born in Australia to Australian parents – hold dual citizenship as a result of a familial connection to a foreign country.

A change of this nature could also raise constitutional problems. The High Court has not yet determined the extent of the Commonwealth’s power to deprive a person of Australian citizenship. There is a plausible argument that certain citizens, especially those who hold only Australian citizenship or who have no substantive connection to a foreign country, are part of the Australian constitutional community, and are protected against citizenship deprivation.




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On a practical level, enabling the minister to revoke a person’s Australian citizenship without it being clear the person has citizenship in a foreign country creates a very real risk of rendering the person stateless. This would place Australia in violation of its obligations under Article 8 of the 1961 Convention on the Reduction of Statelessness, which prevents signatory countries from depriving people of their nationality if it would render them stateless.

Australia has signed up to an international agreement not to render people stateless.
Shutterstock

Where a person inside Australia is deprived of Australian citizenship they become vulnerable to removal from Australia, and immigration detention until removal is possible. Where it is not clear that the person has citizenship in a foreign country, there is a likelihood of such detention being lengthy, or even indefinite.

Changes to the minimum sentence for conviction-based deprivation

The government’s media release also says:

The proposed changes would enable the minister to cease the citizenship of anyone who is convicted of a terrorism offence in Australia, irrespective of the sentence they receive. This removes the current requirement that a terrorist offender must be sentenced to at least six years’ imprisonment.

Currently, the minister has power to revoke a person’s citizenship only on conviction-based grounds where a person is convicted of a select list of national security offences. It is not clear whether the government intends to retain or expand this select list of offences.

An anti-terrorism exercise at Cologne Bonn airport in Germany on November 20.
Marius Becker/dpa

Either way, the proposal is concerning. In 2015, before the current citizenship revocation laws were introduced, the Abbott government attempted to attach citizenship revocation to a much wider range of national security offences, with no requirement for a minimum sentence. A number of experts advised that this ran a risk of falling foul of the Constitution.

The more limited current legislation was ultimately arrived at following an inquiry by the Parliamentary Joint Committee on Intelligence and Security. It found that restricting the list of offences and requiring a minimum six year sentence was necessary to “appropriately target the most serious conduct that is closely linked to a terrorist threat”. Since 2015, the national threat level has not changed.

In this context, the government should clearly explain why removing the six year sentence threshold for conviction-based citizenship deprivation is necessary and proportionate. Given that the conviction-based citizenship-deprivation powers have not been used since their introduction, the need for a clear justification is particularly strong. The government’s media release states:

We now need to focus attention on strengthening the citizenship loss provisions which commenced in 2015 as they relate to terrorists within Australia, in order to protect our community.

As the Law Council has stated, this justification is not nearly strong enough.The Conversation

Sangeetha Pillai, Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Law School, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The dual citizenship saga shows our Constitution must be changed, and now



File 20171116 17107 1bk1oq0.jpg?ixlib=rb 1.1
Jacqui Lambie bids a tearful farewell in the Senate this week, after becoming the latest politician caught up in the dual citizenship saga.
AAP/Lukas Coch

Joe McIntyre, University of South Australia

It is time to accept that Section 44 of the Australian Constitution is irretrievably broken. In its current form, it is creating chaos that is consuming our politicians. This presents a rare opportunity for constitutional change. A referendum could address not only the citizenship issue but the entirety of Section 44, which no longer looks fit for purpose.

The “brutal literalism” adopted by the High Court means that there can be no quick or stable resolution to the citizenship saga consuming the national political class.

Even a thorough “audit” of current politicians, such as the deal announced this week by Prime Minister Malcolm Turnbull, will offer only a temporary respite. Not only can it be extremely difficult to determine if someone has foreign citizenship, the agreed disclosures will not capture all potential issues (for example, it only extends back to grandparents).

Moreover, as foreign citizenship is dependent on foreign law, a foreign court decision or legislation may subsequently render a person ineligible.

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This issue will continue to dog all future parliaments.

The idea that the Constitution provided a “flashing red light” on this issue is mistaken. The dual citizenship problem has long been an open secret. It has been the subject of numerous parliamentary reports over the last 40 years, the most recent in 1997.

A royal commission was once suggested to audit all politicians. This has been a time bomb waiting to go off, but one that stayed strangely inert for more than 100 years.

Current version of Section 44.

Moreover, no-one really knew how the High Court would resolve the “citizenship seven” case. Turnbull was widely mocked for his initial certainty about Deputy Prime Minister Barnaby Joyce’s eligibility.

Following the High Court’s unexpected same-sex marriage decision, few commentators felt any confidence in predicting how it would decide the “citizenship seven” case. The result could easily have gone the other way.

More significantly, the court has imposed a far harsher test than expected. Not only is knowledge of potential ineligibility irrelevant, it is not sufficient that a person takes “reasonable steps” to divest foreign citizenship. Unless a foreign law would “irredeemably” prevent a person from participating in representative government, the fact of dual citizenship will be sufficient to disqualify a person.

It is this strict new interpretation that has cast doubt over the eligibility of politicians such as Labor MP Justine Keay. Keay had renounced her British citizenship prior to nomination, but did not receive final notification until after the election.

Arguably, she is ineligible. This was not a failure to undertake “serious reflection”, but a consequence of it.

Prospective politicians would be required to irrevocably rid themselves of dual citizenship early enough to ensure this is confirmed prior to nomination. The Bennelong byelection provides a graphic illustration of the issue – the ten days between the issuing of the writs and the close of nominations would be far too short for any effective renunciation.

Serious unresolved issues remain, even before we get into the difficulty posed by the “entitled to” restriction in Section 44. This provision could, for example, render Jewish politicians ineligible under Israel’s “right of return” laws.

Section 44 is not only unworkable, it is undesirable. The spectre of Indigenous leader Patrick Dodson being potentially ineligible, or Josh Frydenberg facing questions after his mother fled the Holocaust, reveal the moral absurdity of this provision. In a modern multicultural society, where citizenship rights are collected to ease travel and work rights, a blanket prohibition is archaic and inappropriate.

Perhaps by giving us an (unnecessarily) unworkable interpretation, the High Court has unwittingly provided the impetus to reform the entirety of Section 44.

That section is concerned with more than just citizenship. Disqualifying attributes including jobs in the public service, government business ties, bankruptcy and criminality.

In disqualifying Senators Bob Day and Rod Culleton earlier this year, the High Court again interpreted the provisions unexpectedly strictly. Again, this strict interpretation has invited challenges to other politicians.

Under the current law, it seems a potential candidate must irrevocably rid themselves of all (potentially valuable) disqualifying attributes prior to nominating, on the chance they may be elected.

Jeremy Gans, one of the most vocal critics of the High Court’s decision, has described this as “one of the Constitution’s cruellest details”. Moreover, as Hollie Hughes’s case illustrates, a defeated candidate may need to avoid these activities even after the election on the off chance of a recount.

Proposed version of Section 44.

Constitutional change offers a chance to break this deadlock. The process does not need to be long and convoluted. We already have a draft text. The proposal suggested by the 1988 Constitution Commission scrapped all disqualifications except the prohibition on treason, and offered a reworked restriction on employment. Other matters would be left to parliament

This well-considered proposal is compelling. We could have an act passed by Christmas, and a referendum early in the new year. The same-sex marriage survey, a matter that will affect many more people far more substantially, has been organised and executed in a far shorter time.

This is a technical issue, but it is consuming vital public resources and distracting our politicians from the role of governing Australia. Changing the Constitution is the only way to draw a line under this chaos.

Our Constitution was never meant to be a static document. It is now more than 40 years since we successfully amended the Constitution, and nearly 20 years since a referendum was even held. Both of these are record periods of time for our Federation.

The ConversationThis has perpetuated the myth that constitutional change is effectively implausible. A referendum on Section 44 would re-engage the Australian people in this vital process. This will, in turn, make it easier for other causes, including Indigenous rights and the republic, to be taken to referendum.

Joe McIntyre, Senior Lecturer in Law, University of South Australia

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

Constitution’s wide net catches even MPs who had no idea they’re foreign citizens



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Matt Canavan has been told that he is an Italian citizen.
AAP/Mick Tsikas

Helen Irving, University of Sydney

Cabinet minister Matt Canavan has become the latest federal MP to be tripped up by the Australian Constitution’s ban on dual citizens serving in parliament. On Tuesday, the Nationals senator resigned from cabinet, pending an investigation into whether he holds Italian citizenship.

Canavan’s case, and those of the two Greens senators – Scott Ludlam and Larissa Waters, who resigned from parliament entirely over their dual citizenship earlier this month – have provoked calls for changes to the Constitution.

Section 44(i) of the Constitution 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” is ineligible to stand for, or sit in, federal parliament.

At the heart of the current controversy is that the senators were either ignorant of their second nationality or believed themselves to have lost it. For some this amounted to carelessness – even “incredible sloppiness”, in Prime Minister Malcolm Turnbull’s words – by them or their party.

The Australian Electoral Commission (AEC) advises potential parliamentary candidates with a foreign nationality that they will be:

… disqualified from election to parliament if they do not take “all reasonable steps” to renounce their other citizenship before nomination.

The AEC also says:

Taking all reasonable steps necessitates the use of renunciation procedures of the other country where such procedures are available.

But what about cases where someone was not in a position to take “reasonable steps”, because their second citizenship was unknown to them?

What the High Court has previously found

The AEC’s advice refers to a 1992 case in which the High Court closely examined Section 44(i) for the first time.

The case concerned the eligibility of candidates in the 1992 by-election for the lower house seat of Wills. It included a meticulous examination of what it meant for an Australian to hold a foreign nationality, and how a nationality might be discharged.

The court recognised that Liberal candidate John Delacretaz and Labor’s Bill Kardamitsis, both naturalised Australians, had lived in and contributed to Australia for many years, and that neither had taken any advantage of their other citizenship over that time.

Nevertheless, the court’s majority concluded that any candidate who had not actively renounced their foreign citizenship was constitutionally disqualified, regardless of whether there had been any benefit from, reliance upon, or even acknowledgement of that citizenship.

The mere entitlement to a foreign nationality was enough. This interpretation has applied ever since.

But two dissenting judgments offered an alternative perspective. This may provide guidance in thinking about the meaning of the Constitution’s provision today, and even an alternative to the difficult task of constitutional change.

Although certain facts differed from the current examples – the candidates were not native-born Australians, and the naturalisation process at the relevant time included renunciation of all other allegiances – the reasoning still applies.

Two principal questions were considered:

  • Did the disqualification rule really apply in the absence of active identification with, or allegiance to, a foreign country?

  • And should the interpretation of the Constitution be subject to other countries’ laws?

In justice William Deane’s view, the whole of Section 44(i) should apply:

… only to cases where the relevant status, rights or privileges [of citizenship] have been sought, accepted, asserted or acquiesced in by the person concerned.

For an Australian-born citizen, Deane concluded, there should be no disqualification unless there was such a “relationship with the foreign power”. For a naturalised citizen, doing all that “can reasonably be expected to extinguish any former relationship with a foreign country to the extent that it involves the status, rights or privileges” of citizenship would be sufficient to overcome disqualification.

Both justices also recognised that each country has the sovereign power to determine its own citizenship law. But, in justice Mary Gaudron’s view, “every consideration of public policy and common sense tells against the automatic recognition and application of foreign law as the sole determinant” of the constitutional rights of Australian citizens.

Deane posed a hypothetical. What if a foreign power decided to:

… disqualify the whole of the Australian parliament by unilaterally conferring upon all of its members the rights and privileges of a citizen of that nation?

In other words, what are the limits in treating unintended or unwanted foreign citizenship as genuine foreign allegiance?

Many countries (Ireland, for example) automatically confer citizenship on the children of their citizens. Many Australians will not be aware they have received such a “gift”.

If, as has been said, Section 44(i) was designed so MPs “did not have a split allegiance and were not, as far as possible, subject to any improper influence from foreign governments”, surely citizenship of which one is ignorant cannot create such conflicts?

What now?

Responding to Canavan’s troubles, Attorney-General George Brandis suggested Canavan was not disqualified because his Italian citizenship was acquired “without [his] knowledge or consent”.

The ConversationThis may not be correct under current constitutional law; the government will refer Canavan’s case to the High Court. But it captures a perspective that is well worth consideration.

Helen Irving, Professor, Faculty of Law, University of Sydney

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

Australia doesn’t have a constitutional right protecting freedom of the person – it needs one



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Migration legislation does not require judicial authorisation for a person to be deprived of their freedom.
AAP/Dean Lewins

Bede Harris, Charles Sturt University

The recent wrongful detention of two Australian citizens by immigration authorities highlights that our Constitution offers inadequate protection for freedom of the person.

This is not the first time Australian citizens have been unlawfully detained. In 2001, Vivian Solon, who had suffered a head injury, was deported even though she told immigration officials she was an Australian citizen. In 2004, Cornelia Rau, also an Australian citizen, was held in immigration detention after she was unable to identify herself because of mental illness.

The government could do this because migration legislation does not require judicial authorisation for a person to be deprived of their freedom. The Solon and Rau cases were found to be only two of more than 247 instances of unlawful detention that had occurred over the previous 14 years.
The extent of the government’s power was revealed in 2015, when the Department of Immigration announced Operation Fortitude. This would have involved stopping people randomly on Melbourne’s streets to check their migration status. The operation was cancelled only after mass public protest.

So, anyone who is walking in the Melbourne CBD and speaks with a strange accent, or has suffered a brain injury, or is experiencing mental illness and cannot demonstrate a right to be in Australia, is liable to detention at best – and deportation at worst – without recourse to the courts.

Where the Constitution lacks

The reason the government has this power is because Australia’s Constitution does not adequately protect individual liberty.

In 1992, the High Court held that separation of powers means that only courts can declare people guilty of crimes and imprison them. It therefore held that parliament cannot enact laws authorising the government to do that.

However, the court said that parliament can authorise the government to order so-called “non-punitive” detention – for example, detention for immigration purposes or in cases of communicable diseases.

Section 75(v) of the Constitution allows someone to challenge government decisions on administrative grounds. However, the High Court has held that this section does not allow the courts to decide whether the exercise of power is reasonable. On this basis, it found it would be lawful to detain someone under the Migration Act forever.

The court has also held that there may be many other – undefined – circumstances in which people can be detained without court approval.

The concept of “non-punitive” detention is vague. It is also oxymoronic: all detention is surely punitive to the person who experiences it. It leads to the bizarre situation that the law provides you more protection if you have committed a crime than if you have not.

It is fundamental in a free society that the law should not allow the state to deprive a person of liberty other than through due judicial process.

What a protection could look like

The Liberal Party proclaims its belief in “the inalienable rights and freedoms of all peoples” and a “just and humane society”. Yet it marked the 800th anniversary of the Magna Carta – the founding document protecting rights in western democracies – by drafting legislation authorising deprivation of citizenship without the need to go to court.

Labor has been no less resistant to the idea of constitutional rights. The Rudd government’s terms of reference to its inquiry into human rights specifically excluded consideration of putting new rights into the Constitution.

Opposition by politicians to constitutional rights is obviously self-serving, and it is often absurd as well. Former NSW premier Bob Carr objected to a Bill of Rights on the ground that it would create a “lawyer’s picnic”.

In a free society, it ought never to be lawful for a government to detain people by executive order alone.

The only effective way to protect liberty of the person is to deny the government the power to detain, unless it can demonstrate to a court that there are reasonable grounds for deprivation of liberty. And the only effective way to prevent the government from enacting legislation to give itself that power is to create a constitutional right protecting freedom of the person.

This right could be phrased as:

Everyone has the right to due process of law and not to be unreasonably deprived of personal liberty.

In a system where the burden appears to lie on the individual to prove they are lawfully in Australia rather than on the state to prove they are not, we are all vulnerable to deprivation of liberty.

The right to individual liberty is also a basic requirement of human dignity. That a person has been deprived of a right by a democratically elected parliament does not diminish the assault on their dignity.

The concept of a free society inescapably requires that limits be imposed on the will of the majority. That is why the power of parliaments has to be restrained.

The ConversationThis is what opponents of rights who trot out the objection to “unelected judges” overturning parliament’s will fail to grasp. It is precisely because judges are independent of the will of political majorities that ultimately only the courts can effectively protect individual freedom.

Bede Harris, Senior Lecturer in Law, Charles Sturt University

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

Suspected Islamists Burn Down Two Homes in Ethiopia


Two thatched-grass structures belonged to evangelist who received threats.

NAIROBI, Kenya, April 21 (CDN) — A Christian near Ethiopia’s southern town of Moyale said suspected Islamic extremists on March 29 burned down his two thatched-grass homes.

Evangelist Wako Hanake of the Mekane Yesus Church told Compass he had been receiving anonymous messages warning him to stop converting Muslims to Christ. The Muslims who became Christians included several children.

“Inside the house were iron sheets and timber stored in preparation for putting up a permanent house,” said Hanake, who is in his late 30s. “I have lost everything.”

The incident in Tuka, five kilometers (nearly three miles) from Moyale in southern Ethiopia’s Oromia Region, happened while Hanake was away on an evangelistic trip. A neighbor said he and others rescued Hanake’s wife and children ages 8, 6 and 2.

“We had to rescue the wife with her three children who were inside one of the houses that the fire was already beginning to burn,” said the neighbor, who requested anonymity.

Church leaders said neighbors are still housing Hanake and his family.

“The family has lost everything, and they feel fearful for their lives,” said a local church leader. “We are doing all we can to provide clothing and food to them. We are appealing to all well wishers to support Hanake’s family.”

Hanake said he has reported the case to Moyale police.

“I hope the culprits will be found,” he said.

An area church leader who requested anonymity told Compass that Christians in Moyale are concerned that those in Tuka are especially vulnerable to a harsh environment in which religious rights are routinely violated.

“The Ethiopian constitution allows for religious tolerance,” said another area church leader, also under condition of anonymity, “but we are concerned that such ugly incidents like this might go unpunished. To date no action has been taken.”

Tuka village, on Ethiopia’s border with Kenya, is populated mainly by ethnic Oromo who are predominantly Muslim. The area Muslims restrict the preaching of non-Muslim faiths, in spite of provisions for religious freedom in Ethiopia’s constitution.

Hostility toward those spreading faiths different from Islam is a common occurrence in predominantly Muslim areas of Ethiopia and neighboring countries, area Christians said, adding that they are often subject to harassment and intimidation.

Ethiopia’s constitution, laws and policies generally respect freedom of religion, but occasionally some local authorities infringe on this right, according to the U.S. Department of State’s 2010 International Religious Freedom Report.

According to Operation World, nearly 40 percent of Ethiopia’s population affiliates with the Ethiopian Orthodox Church, 19 percent are evangelical and Pentecostal and 34 percent are Sunni Muslim. The remainder are Catholic (3 percent) and ethno-religious (3.7 percent).

 

Jimma Violence

In Jimma Zone in the country’s southwest, where thousands of Christians in and around Asendabo have been displaced as a result of attacks that began on March 2 after Muslims accused a Christian of desecrating the Quran, the number of churches burned has reached 71, and two people have reportedly been killed. Their identities, however, were still unconfirmed.

When the anti-Christian violence of thousands of Muslims subsided by the end of March, 30 homes had reportedly been destroyed and as many as 10,000 Christians may have been displaced from Asendabo, Chiltie, Gilgel Gibe, Gibe, Nada, Dimtu, Uragay, Busa and Koticha.

Report from Compass Direct News
http://www.compassdirect.org

Nepal Christians Begin Legal Battle for Burial Ground


Hindu group declares country a Hindu state; upper castes seek halt to conversions.

KATHMANDU, Nepal, April 19 (CDN) — With the government refusing to listen to their three-year plea for an official cemetery and ignoring a protracted hunger strike, Nepal’s Christians are now seeking redress from the Supreme Court.

“Every day there are two to three deaths in the community, and with each death we face a hard time with the burial,” said Chari Bahadur Gahatraj, a pastor who filed a petition in the high court on March 13 asking it to intervene as authorities of Nepal’s oldest Hindu temple had begun demolishing the graves of Christians there.

Gahatraj and Man Bahadur Khatri are both members of the newly formed Christian Burial Ground Prayer and National Struggle Committee that since last month began leading a relay hunger strike in a public area of the capital, asking for a graveyard. They said they were forced to go to court after the Pashupati Area Development Trust (PADT), which runs Nepal’s oldest Hindu shrine, the Pashupatinath temple, said it would no longer allow non-Hindus to use the temple’s forested land.

“We don’t want to hurt the sentiments of any community,” Gahatraj told Compass. “Nor are we trying to grab the land owned by a temple. We are ready to accept any plot given to us. All we are asking for is that the burials be allowed till we get an alternate site.”

Judge Awadhesh Kumar Yadav has since ordered the government and PADT not to prevent Christians from using the forest for burials until the dispute is resolved. The legal battle, however, now involves a counter-suit. Hindu activist Bharat Jangam filed a second writ on March 20, saying that since the forest was the property of a Hindu temple, non-Hindus should not be allowed to bury their dead there just as churches do not allow Hindu burials.

Subsequently, the court decided to hear the two petitions together, and yesterday (April 18), the hearings began. While two lawyers argued on behalf of Gahatraj and Khatri, a cohort of 15 lawyers spoke against their petition. The next hearing is scheduled for May 3.

Along with the legal battle, Christians have kept up their relay hunger strike. To step up pressure on the government, the protestors also announced they would lead a funeral march to the offices of the prime minister and the culture minister and hand over coffins to them as a symbolic protest. If that too failed, they warned they would have no option but to go on hunger strike in front of the prime minister’s office and parliament, this time carrying dead bodies with them.

Alarmed at the rate the issue was snowballing, the government finally responded. Yesterday Culture Minister Gangalal Tuladhar opened talks with the protestors, agreeing to continue the negotiations after three days. The government also formed a four-member committee to look into the demand. Currently, Christians are asking for cemetery land in all 75 districts of Nepal.

Protestors were wary of the government’s intent in the overture.

“This could be a ploy to buy time and bury the issue,” said a member of the Christian committee formed to advise parliament on drafting the new constitution, who requested anonymity.

Though the committee formed to look into the Christians’ demand for burial land has been asked to present a report within two weeks, Christians suspect the panel is dragging its feet.

“The new constitution has to be promulgated by May 28, but it does not seem likely that the main political parties will be able to accomplish the task,” the Christian committee member said. “And if the constitution doesn’t materialize in time, there will be a crisis and our problem will be shelved.”

 

Hindu Nation

Adding to their unease, Christians are now facing a redoubled campaign by Hindu groups for the restoration of Hinduism as the state religion, five years after parliament declared Nepal, the world’s only Hindu kingdom, secular.

If the new constitution had been promulgated last year, it would have consolidated secularism in Nepal. But with the country missing the deadline due to protracted power-sharing rows among the major political parties, Christians still feel under threat.

On Thursday (April 14), when the country celebrated the start of the indigenous new year 2068 with a public holiday, the Rastriya Prajatantra Party-Nepal, which seeks the reinstatement of Hinduism as the state religion, kicked off a campaign at the Bhadrakali temple in Kathmandu. As curious onlookers and soldiers patrolling the nearby army headquarters looked on, party members fervently blew into conch shells and rang bells to draw people’s attention to their demand.

The party, which is also seeking the restoration of monarchy, took some oblique shots at the Christian community as well.

“There is a deliberate and systematic attempt by organizations to convert Hindus,” said Kamal Thapa, party chief and a former minister. “These organizations are guided by foreign powers and foreign funds. If the widespread conversion of Hindus is not stopped immediately, we will have to take stern measures.”

Three days later, an umbrella of Hindu groups – the Rastriya Dharma Jagaran Mahasabha (the National Religion Resurrection Conference) held a massive gathering in the capital, declaring Nepal a “Hindu state” and meeting with no official objection. The proclamation came as the climax to a three-day public program calling for the restoration of “the traditional Hindu state.” Several Hindu preachers and scholars from neighboring India attended the program, held on the grounds of the Pashupatinath temple, which is also a UNESCO-declared World Heritage Site.

The “Hindu state” proclamation was the brainchild of Shankar Prasad Pandey, a former member of parliament from Nepali Congress, the second largest party in Nepal, now in opposition. Though Pandey was a sitting Member of Parliament in 2006, when the body unanimously declared Nepal secular, he began opposing the move soon afterwards, leading four campaigns against it nationwide.

“I consider the nation and the Hindu religion to be more important than the party,” said Pandey, known as the MP who began to go barefoot 32 years ago to show solidarity with Nepalese, who are among the poorest in the world. “Over 90 percent of the Nepalese want Nepal to be a Hindu state. However, the government is led by people whose only concern is power and money.”

Pandey’s campaign is supported by Hindu groups from India and the West: Narendranath Saraswati, who is the Shankaracharya or religious head of a prominent Hindu shrine in India’s Varanasi city; Dr. Tilak Chaitanya, chief of a group in the United Kingdom that propagates the Gita, the holy book of the Hindus; and Tahal Kishore, head of a Hindu organization, Radha Krishna Sevashram, in the United States.

Two weeks before the May 28 deadline for the new constitution, Pandey and his followers plan to step up the campaign for a “Hindu state” in the capital. Though Pandey denies it could stir up animosity between the majority-Hindus and Christians – whose minority population is said to have crossed 2 million but is actually only 850,801, according to Operation World – there are fears of religious tension if not outright violence.

The Hindu rallies continue to grow as a pressure tactic. Yesterday (April 18), members of Nepal Brahman Samaj, an organization of “upper castes” from whose echelons temple priests are appointed, fought with security forces in front of parliament house, demanding their rights be respected and an end to conversions.

More Hindutva (Hindu nationalist) campaigning is scheduled on April 29, when the Rastriya Prajatantra Party-Nepal’s Thapa has called for a mass gathering in the capital.  

Report from Compass Direct News
http://www.compassdirect.org