Nick Xenophon could be South Australia’s next premier, while Turnbull loses his 25th successive Newspoll



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Nick Xenophon won 46% of the preferred South Australian premier vote in a recent Newspoll.
AAP/Morgan Sette

Adrian Beaumont, University of Melbourne

The next South Australian election will be held in three months, on March 17, 2018. A South Australian Newspoll, conducted October to December from a sample of 800, had primary votes of 32% for Nick Xenophon’s SA-BEST party, 29% Liberal, 27% Labor, and 6% Greens.

On the better premier measure, Nick Xenophon had 46% of the vote, followed by incumbent Jay Weatherill on 22% and Opposition Leader Steven Marshall on 19%.

Xenophon’s strong performance is partly explained by the dire ratings of both Weatherill and Marshall. Weatherill had 53% dissatisfied, 34% satisfied, for a net approval of minus 19. Marshall had 50% dissatisfied, 27% satisfied, for a net approval of minus 23.

The previous South Australian Newspoll was taken in late 2015. A Galaxy poll taken for the Australian Bankers’ Association in early October gave the Liberals 31% of the primary vote, SA-BEST 30%, and Labor 26%. The better premier measure in that poll had 41% Xenophon, with Weatherill and Marshall both on 21%.

If the primary votes in Newspoll were replicated at the March 2018 election, SA-BEST would probably win a clear majority of lower house seats. Both major parties’ supporters dislike the other major party, so most Labor voters will preference SA-BEST ahead of the Liberals, and vice versa.

There are still three months until the election, and SA-BEST will be attacked ferociously in the coming weeks. However, the disdain for both major parties, and Xenophon’s popularity, gives SA-BEST a real opportunity to end the major party duopoly in South Australia.

The total vote for all “others” in Newspoll is 6%. At the 2014 state election, Family First won 6%. This poll does not suggest the Australian Conservatives, formed by Cory Bernardi, are surging.

Turnbull loses his 25th successive Newspoll, 53-47

This week’s Newspoll, conducted December 14-17 from a sample of 1,670, gave federal Labor a 53-47 lead, unchanged from last fortnight. Primary votes were 37% Labor (steady), 36% Coalition (steady), 10% Greens (steady), and 7% One Nation (down one).

This is Malcolm Turnbull’s 25th successive Newspoll loss. Tony Abbott lost 30 in a row before he was dumped.

Turnbull’s ratings were unchanged at 57% dissatisfied, 32% satisfied, for a net approval of minus 25. Bill Shorten’s net approval fell three points to minus 24. Turnbull led by 41-34 as better prime minister (39-33 last fortnight).

The 7% for One Nation is its lowest support in Newspoll since December 2016, before One Nation was included in the party readout. On the overall vote for left- and right-wing parties, the left leads by 47-43 in this Newspoll (47-44 last fortnight). This is the first change in the overall left/right balance since October.

The passage of same-sex marriage legislation through parliament and the media furore over Sam Dastyari do not appear to have improved the Coalition’s position. Most voters realise that the large “yes” vote in the plebiscite forced the Coalition to act. It is likely that only partisans are interested in Dastyari.

Newspoll (paywalled) asked who was better at handling the economy, national security, asylum seekers, cost of living, and tax cuts. Turnbull had more than 20-point leads over Shorten on the first three issues, and a 40-33 lead on tax cuts. Shorten led by 43-41 on cost of living.

These questions are biased in favour of Turnbull, as they appeal to the Coalition’s perceived strength on the economy, national security and asylum seekers. There were no questions regarding issues like health, education and climate change, where Labor is perceived to be better than the Coalition.

Incumbent prime ministers tend to outperform their party, so Labor would probably have obtained more favourable results had Newspoll asked Coalition vs Labor, not Turnbull vs Shorten.

Essential 53-47 to Labor

In this week’s Essential, the Coalition gained two points since last fortnight, reducing Labor’s lead to 53-47. Primary votes were 38% Labor, 37% Coalition, 9% Greens and 7% One Nation. Essential uses a two-week sample of about 1,800, with additional questions based on one week’s sample.

All proposed reforms of political donations were very popular, with the exception of banning donations and making all political party spending taxpayer-funded (50-30 opposed).

Respondents were asked whether the last 12 months had been good or bad for various items. The economy had a net +11 rating, large companies a net +22, your workplace a net +34, and you and your family a net +27. The planet had a net -22 rating and Australian politics a net -36.

Respondents were also asked about their expectations for 2018, though Essential apparently thought the next year is 2017.

By 54-29, voters disapproved of the proposed A$50 billion in company tax cuts to medium and large businesses (50-30 in October). By 47-8, voters thought personal income tax cuts were more important than business tax cuts, with 33% for both being equally important.

37% thought interference in Australian politics by foreign countries is a major problem, 36% a minor problem, and 12% did not think it was a problem at all.

Bennelong preference flows

With virtually all votes counted in Saturday’s Bennelong byelection, Liberal John Alexander defeated Labor’s Kristina Keneally by 54.9-45.1, a 4.9-point swing to Labor since the 2016 election. Primary votes were 45.1% Alexander, 35.8% Keneally, 6.7% Greens, 4.3% Australian Conservatives, and 3.1% Christian Democrats.

The informal rate of 8.1% is far too high, and indicates savings provisions should be introduced so that votes can still be counted even if voters do not number every square. There is confusion in New South Wales because state elections use optional preferential voting.

I have information about preference flows from one booth in Bennelong from a Labor scrutineer. At this booth, Keneally won 88% of Greens preferences, but Alexander won 85% of Australian Conservatives’ preferences and 77% of Christian Democrat preferences.

Preferences of other candidates split evenly between Keneally and Alexander. This booth may not be representative of the whole electorate, but these preference flows seem reasonable.

The ConversationWhile Newspoll and Galaxy understated Alexander by four-to-five points, these polls were of one seat. Australian pollsters have been bad with seat polling, but very good with national and state polls. The error in Bennelong does not affect the trustworthiness of Newspoll’s national polls.

Adrian Beaumont, Honorary Associate, School of Mathematics and Statistics, University of Melbourne

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

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High Court to rule on two Labor MPs, but partisan row protects others


Michelle Grattan, University of Canberra

A batch of MPs escaped being sent to the High Court on Wednesday thanks to a stalemate between the government and the opposition over who should be referred.

But the eligibility of two Labor MPs will be considered by the court – Victorian David Feeney and ACT senator Katy Gallagher.

The opposition failed in an attempt to get a “job lot” of MPs referred that included four Liberals, four from the ALP, and the Nick Xenophon Team’s Rebekha Sharkie.

The ALP motion was supported by all five crossbenchers, resulting in a tied vote of 73-73. The Speaker, Tony Smith, acting in line with parliamentary convention, used his casting vote to defeat the motion.

The government, insisting that none of its MPs should be referred, wanted the members considered individually.

But crossbenchers rejected that argument, seeing it as the government being partisan.

The government said it would continue to talk to the crossbenchers overnight but they are not likely to be swayed before parliament rises this week for the summer recess.

The Labor MPs in the opposition motion were Justine Keay, Josh Wilson, Susan Lamb and Feeney.

The case of Gallagher – who took action to renounce her British citizenship but did not get registration of her renunciation before she nominated for the 2016 election – should provide guidance in relation to the three other Labor MPs and Sharkie, who have similar circumstances.

Labor argues that those who had taken reasonable steps to renounce but did not receive their confirmations in time (or, in Lamb’s case, at all) are eligible.

Feeney is in a different category from the other Labor MPs – he has not been able to provide evidence that he renounced his British citizenship in 2007, as he says he did. He was referred after the job-lot motion’s defeat.

Both Gallagher and Feeney accepted they should be referred. Gallagher, while maintaining her eligibility, told the Senate she was standing aside from her frontbench positions and had asked to be referred to the court, saying her opponents would continue to use the issue.

Labor said the four Liberals – Jason Falinski, Julia Banks, Nola Marino and Alex Hawke – had not provided adequate documentation of their eligibility.

In the run up to the vote, Marino released advice from the Italian consulate saying she was not an Italian citizen.

Falinski produced advice saying that he was not a citizen of the UK, Poland, Russia or Kyrgyzstan. But the letter to Falinski was dated Wednesday and the law firm, Arnold Bloch Leibler, said that “as previously discussed, we cannot conclusively advise on foreign law and recommend that you seek independent advice from foreign law experts”.

The crossbenchers were lobbied hard over the motion, including on the floor of the chamber, by both the opposition and the government.

Labor made an unsuccessful attempt to get its motion dealt with before Barnaby Joyce, who has just faced a byelection after the High Court declared him ineligible to sit, returned to the lower house.

Labor had a temporary majority but did not have enough time. Joyce was sworn in at 1.15pm and his presence in the subsequent debate meant the numbers were tied.

Moving the motion, Manager of Opposition Business Tony Burke said: “The only appropriate way for us to deal with this is to make sure that, wherever there has been serious doubt across the chamber, the High Court becomes the decision-maker rather than the numbers on the floor of this house”.

Arguing for a case-by-case approach, Malcolm Turnbull said that Labor “with not a principle in sight, with not a skerrick of evidence … wants to send members of the House to the High Court … without making any case that they are, in fact, dual citizens”.

The Greens’ Adam Bandt said the approach must be “even-handed and non-partisan”. “We think there should be an agreed set of names that go forward from this house.”

Sharkie, appealing for unity, said: “We will hang individually if we don’t hang together”.

Crossbencher Bob Katter told the parliament that none of the MPs should be sent to the High Court.

Labor leader Bill Shorten revealed that he had known for just over a week that Feeney didn’t have the required documents.

“I informed him that he needed to tell the parliament what was happening, and I made it clear to him that there was a deadline of disclosure,” Shorten told reporters.

Feeney has said he is still trying to have the British authorities find documentation that he renounced UK citizenship.

If Feeney is disqualified, Labor would be at risk of losing his seat of Batman to the Greens. There is doubt over whether he would be the candidate in a byelection.

Shorten did not disguise how angry he is with Feeney. “I am deeply frustrated – that’s a polite way of putting it – that one of my 100 MPs can’t find some of the documents which, to be fair to him, [he] says exist and says he actioned,” Shorten said.

He admitted that if he had been aware of Feeney’s situation he would not have been so definite in his repeated confident statements about the eligibility of all his MPs.

The ConversationLabor was divided internally over whether it should pursue Josh Frydenberg, whose mother came to Australia stateless: the Burke motion did not include him. The ALP is also not at this point pursuing another of those it has named, Arthur Sinodinos, who is away on sick leave.

https://www.podbean.com/media/player/hdjfk-7dce11?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

Near enough may not be good enough as parliament’s dual citizenship crisis deepens



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Labor senator Katy Gallagher has been referred to the High Court over her possible dual citizenship status.
AAP/Lukas Coch

Lorraine Finlay, Murdoch University

Over the past five months, a growing of numbers MPs elected at the 2016 federal election have either been disqualified or resigned from parliament because of dual citizenship issues.

This extraordinary chain of events started back in July with the resignation of Greens senator Scott Ludlam. It looks set to continue into 2018, after the publication of citizenship registries revealed several more MPs have serious dual citizenship questions to answer.


Further reading: New blow for Labor as David Feeney hits citizenship hurdle


Among those likely to be referred to the High Court are several senators and MPs whose citizenship declarations show they were technically still dual citizens when nominations closed before the 2016 federal election, but who claim they had personally taken all reasonable steps to renounce their dual citizenship before that date.

This group includes Labor’s Katy Gallagher (who has been referred to the High Court already), Justine Keay, Susan Lamb and Josh Wilson, and the Nick Xenophon Team’s Rebekha Sharkie.

All reasonable steps?

Several of these MPs have received legal advice suggesting they will not be disqualified under Section 44 of the Constitution because they had taken all reasonable steps to renounce their dual citizenship before nominating as an election candidate.

For example, all appear to have completed their renunciation paperwork and paid the required fee before nominating, but were waiting on the British Home Office to register the renunciation. They did not receive formal confirmation of their renunciation until after the election.

Under British law, citizenship does not cease until the secretary of state actually registers the declaration of renunciation.

In order for someone personally taking “all reasonable steps” to be eligible – in circumstances where that renunciation has not actually been accepted – the High Court would need to take a flexible view of Section 44’s wording.

The court has never been asked to directly consider this precise set of circumstances before, so nobody can be entirely sure what it would find. But given the strict reading of Section 44 adopted in recent cases, it would not be surprising if these five MPs were all found to be disqualified.

In the case of the “Citizenship Seven”, the court unanimously found that the dual citizenship provision is “cast in peremptory terms”. This means it sets out a definite obligation in clear and certain words.

While the court found there would be cases where someone who had taken “all reasonable steps” to renounce dual citizenship would not be disqualified, this was not a test of general application. Rather, it was a specific exception that applied where the law of a foreign country prevented someone from renouncing their foreign citizenship, or made it unreasonably difficult for them to do so.

This was based on the constitutional imperative that an Australian citizen should not:

… be irremediably prevented by foreign law from participation in representative government.


Further reading: The High Court sticks to the letter of the law on the ‘citizenship seven’


None of the five MPs mentioned above were “irremediably prevented” from renouncing. Instead, they had failed to do so in enough time to have the renunciation registered before the required date. So, it is difficult to see the court accepting that the British renunciation procedures were so unreasonable that they amounted to someone being “irremediably prevented”.

Taking this approach, the only fact that will matter is that these MPs were all still actually dual citizens at the time of nomination. On this basis, they would all be disqualified.

To escape disqualification, they will need the court to extend the “all reasonable steps” exception to every case of dual citizenship. It is open to the court to do this, but the recent decisions in relation to both the Citizenship Seven and Hollie Hughes suggest a stricter approach.


Further reading: High Court strikes again – knocking out Hollie Hughes as replacement senator


This means it is entirely possible that Gallagher, Keay, Lamb, Wilson and Sharkie will all be declared ineligible. At the very least, there is a real question to be answered about their eligibility.

That it has taken more than five months and a compulsory declaration procedure for this to come to light reflects extremely badly on these MPs.

Previous ineligibility

The citizenship registers have also revealed that there are several MPs who were eligible at the time of the 2016 federal election but who appear to have had dual citizenship issues for at least part of a previous parliamentary term. This includes Greens senator Nick McKim, Labor senators Alex Gallacher, Louise Pratt and Lisa Singh, and Liberal senator Dean Smith.

Since they relate only to previous parliamentary terms, none of these cases will be referred to the High Court. However, these MPs’ conduct should not escape criticism.

Again, that it has taken more than five months and a compulsory declaration procedure for these cases to come to light is highly disappointing.

The ConversationThe real issue here isn’t one of dual citizenship, but rather the honesty and integrity of our MPs. The dual citizenship issue is likely to be fixed in the future through greater candidate awareness and political parties undertaking stricter vetting processes. The loss of trust between the Australian people and their MPs is much harder to fix.

Lorraine Finlay, Lecturer in Law, Murdoch University

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

Citizenship crisis claims Nick Xenophon Team’s Kakoschke-Moore


Michelle Grattan, University of Canberra

Nick Xenophon Team senator Skye Kakoschke-Moore has resigned from parliament after being advised she is a British citizen via her mother, in another blow to the party.

The NXT has three Senate spots, as well as one member in the House of Representatives, Rebekha Sharkie – whose future is under a cloud in the citizenship crisis.

A tearful Kakoschke-Moore said she was “heartbroken” by the news. She had previously not believed she had British citizenship and had only checked when preparing the declaration to be presented to parliament.

Her mother was born in Singapore to British parents, and migrated to Australia with her family.

“Usually where a parent is born outside of the UK they are unable to pass their citizenship on to their children where those children are also born outside of the UK. It was my understanding for my entire life that I was not eligible for British citizenship due to that rule.”

When she was living in Oman as a child her father had inquired whether she was eligible for a British passport and was told she was not because she wasn’t eligible for citizenship. “We had no reason to doubt that this advice was incorrect.”

But the British Home Office had now advised her that, through a complicated train of circumstances, her mother became a British citizen under British legislation of the early 1980s “and I am therefore a British citizen under … the British Nationality Act 1981”.

She said she would ask that her case be referred to the High Court.

The issue is particularly complicated for the NXT because the next candidate on its ticket, Tim Storer, is no longer in the party after falling out with it.

Storer had wanted to replace Nick Xenophon when he quit the Senate for state politics. But it was a casual vacancy and Xenophon was able to appoint his staffer, Rex Patrick.

Xenophon told a joint news conference with Kakoschke-Moore that preliminary legal advice was “that we’re in uncharted legal territory as to whether it would be a countback or some other mechanism of dealing with this” vacancy.

The NXT will argue that Storer should not get the spot because he is no longer in the party. But Anne Twomey, constitutional expert from Sydney University, said she very much doubted the argument would fly.

Xenophon said he hoped that Kakoschke-Moore would be back in the Senate soon, at least after the next Senate election.

He said Kakoschke-Moore’s circumstance was completely different from that of Sharkie – who didn’t receive her confirmation of renouncing her British citizenship until after her nomination went in.

The British Home Office had pocketed her money before the nomination, Xenophon said. He said the initial legal advice was that she was in very strong position.

“There may be a referral. I think that what we’ll expect to see in coming days is a whole stack of referrals to the High Court from people from the major parties and crossbench as well.”

The ConversationKakoschke-Moore is the ninth member of the federal parliament to have either resigned or been knocked out by the High Court over being a dual citizen at the time of nomination.

https://www.podbean.com/media/player/nqtdd-7bf599?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

Sharkie told by Turnbull she may have to go to High Court



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Rebekha Sharkie was registered as renouncing her UK citizenship after she nominated for election.
Mick Tsikas/AAP

Michelle Grattan, University of Canberra

Malcolm Turnbull has told Rebekha Sharkie, the Nick Xenophon Team’s sole member in the House of Representatives, that her eligibility may have to be determined by the High Court.

Sharkie, born in Britain, was registered as renouncing her UK citizenship after she nominated for last year’s election, although she started the process a good deal earlier.

Turnbull rang her on Thursday before he left for the APEC meeting in Vietnam. Sharkie had been in the media saying she wanted to meet him about the citizenship crisis.

She said in a statement that he asked her about dates. She completed her forms on April 19 last year; the material was sent express international post. On June 2 the Home Office acknowledged her application had been received. She nominated for Mayo on or about June 7. The Home Office registered her renunciation on June 29.

Under Section 44(i) of the Constitution a person is ineligible to nominate for election to federal parliament if they are a dual citizen.

Sharkie, who said she had been open throughout about her citizenship status, produced documentation, and supported a full audit of MPs, said: “The prime minister in our conversation suggested I may have to refer myself to the High Court”.

“I believe that I took all steps that were required by the UK to renounce any entitlement to UK citizenship, that were within my power to take. I had no control as to the speed at which the UK Home Office processed my application but I note that well over a month would have passed before I actually nominated for the seat of Mayo.”

Sharkie is the latest name to be canvassed in the list of parliamentarians who might be ineligible to sit in parliament, following those of Tasmanian crossbench senator Jacqui Lambie and assorted Liberal and Labor MPs.

Liberal backbencher John Alexander is waiting for Home Office advice as to whether he is a British citizen by descent. Labor’s Justine Keay and Susan Lamb are in similar circumstances to Sharkie.

Meanwhile, Bill Shorten and Turnbull escalated their fight over the disclosure resolution the government plans to put to parliament and related issues – although Turnbull also signalled he expects to reach agreement with Shorten about the disclosure requirements.

Labor wants to toughen the terms of the disclosures MPs have to make and to put a December 1 deadline on them.

In a wide-ranging letter to Turnbull, Shorten sought a commitment the government would not use its numbers to make “partisan referrals” to the High Court; Labor also wanted a commitment that any ministers referred would stand aside from the ministry.

As well, he asked that Communications Minister Mitch Fifield, who knew of former Senate president Stephen Parry’s likely British citizenship before it was revealed and then confirmed, should be referred to the privileges committee.

Shorten rejected a Turnbull proposition that only non-controversial legislation be considered for the rest of this year. While the New England byelection is on, the government does not have a working majority in the lower house.

Turnbull has compromised on his original longer timetable, now saying December 7 is an appropriate deadline for the declarations. The lower house could then consider the declarations, take legal advice and “resume the following week to determine the matter of referrals”, he said in a letter to Shorten, composed on the VIP aircraft on the way to Vietnam.

Turnbull made it clear that the government would refer Labor members to the court.

“You appear to be asking me to not refer to the High Court Labor members who were UK citizens at the time of nomination but claim that lodging a renunciation declaration prior to that nomination protects them from disqualification,” he wrote.

“I cannot give you that assurance. The government will vote to refer any individual to the High Court if there are substantial grounds for believing they are in breach of the Constitution.”

He said the proposition that Fifield was in breach of privilege was “absurd”.

But despite earlier fiercely attacking Shorten for playing politics, Turnbull wrote that “nonetheless we are not far apart in terms of the nature of the disclosures sought. As you know in the course of our meeting when your anxiety about your dual citizen MPs became apparent, I offered to include a section of the disclosures for them to foreshadow the arguments they would put to the High Court if referred.”

The ConversationTurnbull said the government would consider Shorten’s revised wording of the disclosure overnight “and hope to resolve this tomorrow”.

https://www.podbean.com/media/player/k3zus-7afe23?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

The High Court sticks to the letter of the law on the ‘citizenship seven’


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The High Court has ruled Scott Ludlam, Larissa Waters, Fiona Nash, Barnaby Joyce and Malcolm Roberts ineligible to have stood for parliament at the 2016 election.
AAP/Shutterstock/The Conversation, CC BY-ND

Gabrielle Appleby, UNSW

Today, the High Court announced the fate of the “citizenship seven”, with only senators Nick Xenophon and Matt Canavan surviving the legal ordeal. (Although the victory will be of limited relevance to Xenophon, who has in the meantime announced his resignation from the Senate to return to state politics in South Australia).

In the case, the High Court, acting as the Court of Disputed Returns, found that four of the six senators referred to it, and the only member of the House of Representatives (Barnaby Joyce), were disqualified under Section 44 of the Constitution. With the exception of Xenophon and Canavan, it was found that the MPs had never been validly elected.

The court has declared all five seats vacant. The senators will be replaced through a recount from the 2016 election. The House of Representative seat of New England will go to a byelection on December 2, which Joyce will contest.

In the meantime, Labor has refused to offer the Coalition a pair for Joyce’s absence, and the Coalition will maintain government on a knife-edge, with 74 seats plus the support of the crossbench, and, if necessary, the Speaker’s casting vote.

Leaving to one side the immediate political consequences of the decision, what did the High Court say about the interpretation of the restriction on foreign citizens running for parliament in Section 44? And is this the last time we will have to think about the matter?

The possible interpretations of Section 44

The crux of the constitutional case was the interpretation of Section 44 of the Constitution – specifically sub-section (i). That, relevantly, provides:

Any person who … 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.

Importantly, if a person is found to be in breach of Section 44 at the time they nominated for election, they will never have been validly elected.

The High Court has held that if a person has never been validly elected, their parliamentary votes during the time they purported to sit would still be valid.

However, questions have been raised as to the validity of the decisions of ministers who were not validly elected. This means there are possibly further unresolved issues around the validity of decisions made by Joyce and Fiona Nash, who, unlike Canavan, did not step down from their ministerial posts while the High Court made its determination.

Another important point that the court has previously clarified is that foreign citizenship is determined according to the law of the foreign state concerned.

None of the interpretations that were urged by the parties on the High Court were strictly literal readings of the words “citizen of a foreign power”. All the parties accepted that there had to be some level of flexibility, allowing a person who was technically a foreign citizen to nonetheless be able to run for parliament.

The real argument in the case, then, was how much flexibility could be read into the section.

The reason all the parties accepted that there had to be some flexibility in the words, was that the High Court had held as much in a 1992 decision of Sykes v Cleary. Relevantly, this case did not concern people who were unaware of their foreign citizenship, and so did not directly address the main point that was in issue for the citizenship seven.

Rather, the case stood for the proposition that a person may be a dual citizen and not disqualified under Section 44 if that person has taken “reasonable steps to renounce” their foreign nationality.

In the course of his dissenting judgment, however, Justice Deane made a comment that the provision should really only apply to cases “where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned”. In this way, Deane suggested there was a mental element to being in breach of the provision.

Many of the interpretations urged on the court drew on this idea. They ranged from requiring voluntary retention or acquisition of citizenship or requiring actual knowledge of foreign citizenship, to a test of whether a person was on sufficient “notice” to check their citizenship status, to a need for the person to have real allegiance to the foreign power.

The High Court opts for certainty

The High Court opted for an interpretation of the Constitution that promotes certainty for future cases.

In a (rare) unanimous decision, it adopted a reading that, as far as possible, adhered to the ordinary and natural meaning of the words. It accepted that the literal meaning would be adopted, with the only exceptions those that had been established in Sykes v Cleary.

The court refused to read further exceptions into the provision based on knowledge, notice or actual allegiance. It said to do so would import a worrying element of uncertainty into the provision, which would be “apt to undermine stable representative government”.

The application to the ‘citizenship seven’

Once the High Court resolved the interpretation of Section 44, it had to apply this interpretation to each of the citizenship seven. The only two MPs who they found not to have fallen foul of this strict reading were Xenophon and Canavan.

Xenophon had what was referred to as “British overseas citizenship”. This had been inherited through his father, who migrated from Cyprus while it was still a British territory. The court accepted that Xenophon, while technically a type of British “citizen”, held no right of entry or right of abode, and thus he did not have “citizenship” for the purposes of Section 44.

Canavan’s facts were more complicated. His alleged citizenship turned on a change in Italian citizenship law that occurred because of a decision of the Italian Constitutional Court when he was two. The court received expert evidence on the Italian legal position, and it ultimately accepted that they could not be satisfied that Canavan was, in fact, a citizen of Italy.

Each of the other senators and Joyce accepted that there were, technically, citizens of a foreign country at the time of their nomination. But they argued they had not known of this when they nominated for parliament. The court’s strict interpretation of Section 44 offered them no comfort.

Is this the end of the parliament’s Section 44 dramas?

In the immediate aftermath of the High Court’s decision, the government has announced it will refer the decision to the Joint Standing Committee on Electoral Matters to discuss, among other things, possible amendments to Section 44.

The issue, it would seem, is no longer the uncertainty around whether a person is or is not disqualified. Because of the strictness of the High Court’s interpretation, all potential parliamentarians are on notice to check thoroughly their citizenship status. Part of the referral to the committee is to investigate ways to “minimise the risk of candidates being in breach of Section 44”.

Rather, the more fundamental issue is now whether this is a desirable state of affairs given the large numbers of Australian citizens who are dual nationals, and who may not wish to renounce their citizenship to run for parliament. Thus, we as a nation stand to lose potential parliamentarians by excluding a pool of people that is likely to grow, not diminish.

Further, there is another question as to whether Section 44, when interpreted in this way, is apt to achieve its purpose. The High Court accepted that the purpose of Section 44 was to ensure that MPs do not have a split allegiance or loyalty.

The ConversationMany might argue that this purpose is still an important one. Even if that is accepted, it would seem that denial of eligibility to a dual national is a particularly blunt instrument to achieve it. On the one hand, it captures many people who do not even know they are dual citizens. On the other hand, the relatively easy step (in most cases) of renouncement means that those people who do have a split allegiance, but who want to run for parliament, have only to fulfil these formalities to do so.

Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW

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

Labour wins NZ election after backing from NZ First. Bankers’ SA Galaxy: 31% Lib, 30% SA Best, 26% Labor


Adrian Beaumont, University of Melbourne

The New Zealand election was held on 23 September, with final results released on 7 October. The conservative National won 56 of the 120 seats, Labour 46, the anti-immigrant populist NZ First 9, the Greens 8 and the right-wing ACT 1. As a result, the right held 57 seats and the left 54, with NZ First’s 9 seats required for a majority (61 seats) for either the left or right.

26 days after the election, and 12 days after final results were published, NZ First leader Winston Peters today announced that his party would form a coalition government with Labour. With NZ First backing, the left bloc has 63 seats, a clear majority in the NZ Parliament. This outcome ends National’s nine successive years in power, in which Labour had utterly dismal results in the three elections from 2008-14.

While the time taken after the election to form a government may seem long, it is not by international standards. Following the Dutch election in March 2017, a coalition government was not formed for 208 days. The German election was held on 24 September, with final results known on 25 September, but government negotiations only began yesterday.

Bankers’ SA Galaxy: 31% Liberal, 30% SA Best, 26% Labor

The Australian reported today that a SA Galaxy poll, conducted for the Australian Bankers Association 10-12 October from a sample of 806, gave the Liberals 31% of the primary vote, SA Best (Nick Xenophon’s SA party) 30% and Labor 26%. The next SA election will be held in mid-March 2018.

This poll is not a media-commissioned poll. The ABA is an anti-Labor lobby group that wants to stop the proposed SA state bank tax. Polls such as these are prone to selective release; it is unlikely the ABA would have released a poll with Labor doing well.

The last media-commissioned SA Galaxy poll, in late June, had the Liberals leading Labor 34-28 on primary votes with SA Best on 21%, and a 50-50 tie between the major parties after preferences. If this ABA Galaxy poll is accurate, it implies that SA Best has surged 9 points since Xenophon announced his candidacy for the Liberal-held seat of Hartley.

In the better Premier question, Xenophon had 41%, with both incumbent Premier Jay Weatherill and opposition leader Steven Marshall at 21%.

If these primary votes were replicated at an election, SA Best would win many seats on Labor preferences, and could be the largest party in SA’s lower house. Such an outcome would break the two party duopoly for the first time in an Australian Parliament since the early 20th century.

However, there are still five months to go before the election. Even if this poll is accurate, it could represent SA Best’s high point. Both major parties will attack Xenophon during the election campaign, in an attempt to undermine his popularity. Labor will use Xenophon’s controversial Senate decisions against him.

Although Labor is third in this poll, they are not out of the running. If Labor can take a few percent from SA Best, they would be more likely to benefit on preferences than the Liberals. If Labor retains office at the next election, it will be a fifth consecutive term for them.

The ConversationAfter 14 years in office, Queensland Labor was demolished at the 2012 Queensland election, and NSW Labor had a similar fate after 16 years at the 2011 NSW election. A SA Labor victory after 16 years would be a remarkable achievement.

Adrian Beaumont, Honorary Associate, School of Mathematics and Statistics, University of Melbourne

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

Newspoll 54-46 to Labor as Turnbull’s ratings slump. Qld Newspoll 52-48 to Labor


Adrian Beaumont, University of Melbourne

This week’s Newspoll, conducted 12-15 October from a sample of 1580, gave Labor a 54-46 lead, unchanged from three weeks ago. Primary votes were 37% Labor (down 1), 36% Coalition (steady), 10% Greens (up 1) and 9% One Nation (up 1). This is Turnbull’s 21st consecutive Newspoll loss as PM.

32% were satisfied with Turnbull’s performance (down 3) and 56% were dissatisfied (up 4), for a net approval of -24, down 7 points. Shorten’s net approval was -22, down two points. According to Kevin Bonham, this is Turnbull’s worst net approval since July, and Shorten’s worst since June.

By 63-23, voters favoured continuing renewable energy subsidies. However, 58% said they would pay nothing more for electricity or gas to implement a clean energy target. In a mid-September Essential poll, voters thought renewables better for electricity costs than fossil fuels by a 41-27 margin.

The general public would like more investment in renewables, and expects that renewable energy would not increase current power prices. However, the Coalition backbench is strongly opposed to renewable energy. By siding with the backbench, Turnbull is undermining his standing with the public.

Labor should ferociously attack the Coalition’s new energy policy that was announced today. In recent global elections, major left-wing parties have performed best when they have clearly distinguished themselves from conservatives. Where the left has become close to the conservatives, they have performed dismally, with Austria (see below) the latest example.

While Newspoll was good for Labor, Essential and YouGov below are not as good. All three polls this week agree that One Nation’s vote is up by 1-2 points.

Last week, The Australian published the July to September quarter Newspoll breakdowns by state, region, sex and age. Since the 2016 election, there has been an 8 point swing to Labor in Queensland, WA and outside the five capitals, but milder swings elsewhere.

SSM plebiscite turnout and polling

As at Friday 13 October, the ABS estimated it had received 10.8 million same sex marriage forms (67.5% of the electorate). The turnout is up from 62.5% on 6 October and 57.5% on 29 September. Weekly updates will be provided until 7 November, the final day for reception of SSM envelopes.

In this week’s YouGov poll, 67% of respondents had already voted, a very good match for the ABS. Among these, Yes led by 61-35. The remaining 33% favoured Yes 54-28, including 13% who were very likely to vote.

Wednesday morning update 18 October: In Newspoll, 65% said they have already voted and another 19% definitely will, implying an 84% turnout. Among those who have already voted, Yes led by 59-38, and by 49-37 among those who have not yet voted. For the whole sample, Yes led by 56-37 (57-34 three weeks ago). By 50-43, voters were opposed to the postal plebiscite (46-44 opposed three weeks ago).

Essential 52-48 to Labor

This week’s Essential, conducted over the last two weeks from a sample of 1850, gave Labor a 52-48 lead, a 2 point gain for the Coalition since last week. As Essential uses two week rolling averages, this implies that this week’s sample was close to 50-50. Primary votes were 37% Coalition (up 1), 36% Labor (down 2), 9% Greens (down 1), 8% One Nation (up 1) and 3% Nick Xenophon Team (up 1). Additional questions are based on one week’s sample.

Voters approved 65-15 of the Clean Energy Target, 74-10 of renewable energy subsidies and 62-18 of Labor’s 50% renewable energy target. These questions can be said to be “pony polls”, in that the voter is asked whether they approve of something that sounds nice, without considering cost or other issues.

61% (down 10 since February) thought the government was not doing enough to ensure affordable, reliable and clean energy, 15% thought it was doing enough (up 3) and 5% that it was doing too much (up 2).

42% thought Abbott should resign from Parliament (down 1 since April), 14% that he should be given a ministry (down 4), 16% remain a backbencher (up 2) and 9% challenge Turnbull (not asked in April).

In contrast to Newspoll, last week’s Essential gave Turnbull a net -1 rating, up from -5 in September. Shorten had a net -7 rating, up from -11.

Essential asked which people’s interests the major parties best represented, with expected results. Labor was seen as best for low-income working people (+33 vs the Liberals), people on welfare (+28) and students (+22). The Liberals were best for big business (+51) and high-income working people (+49).

By 55-36, voters thought it likely there would be a war between North Korea and the US. 33% said terrorism was the biggest concern for their personal safety, with 20% selecting a car accident and 13% nuclear warfare.

YouGov primary votes: 34% Coalition, 32% Labor, 11% Greens, 11% One Nation

YouGov continues to have Labor much lower than other polls. Primary votes in this week’s YouGov, conducted 12-16 October with a sample of 1067, were 34% Coalition (steady), 32% Labor (down 1), 11% Greens (steady), 11% One Nation (up 2), 3% Nick Xenophon Team (down 1) and 4% Christian parties (steady).

As usual, YouGov’s two party result, using respondent allocation, is skewed to the Coalition; they lead 51-49, though the previous election method would give Labor about a 52.5-47.5 lead according to the Poll Bludger.

56% thought Australia should have stricter gun laws, 34% thought they should remain about the same and just 7% thought they should be less strict. By 45-37, voters thought the Constitution should not be changed to allow dual citizens to run for office.

Qld Newspoll 52-48 to Labor

A Queensland Newspoll, conducted 10-12 October from a sample of 917, gave Labor a 52-48 lead, a one point gain for the LNP since the July to September Newspoll. Primary votes were 37% Labor (steady), 34% LNP (steady), 16% One Nation (up 1) and 8% Greens (steady). The next Queensland election must be held by early 2018.

42% were satisfied with Premier Annastacia Palaszczuk’s performance (up 1), and 45% were dissatisfied (down 1), for a net approval of -3. Opposition leader Tim Nicholls had a net approval of -11, up five points.

The narrowing in Labor’s two party lead is partly because Newspoll are now assuming that One Nation preferences flow to the LNP at a 60% rate, up from 55% previously. Unlike most state Newspolls, this poll was taken over three days last week, rather than a period of months.

Austria election: conservative/far-right coalition likely outcome

The Austrian election was held on 15 October. The conservative OVP won 31.5% of the vote (up 7.5 points since the 2013 election), the centre-left SPO 26.9% (steady) the far-right FPO 26.0% (up 5.5), the liberal NEOS 5.3% (up 0.3), the Greens breakaway party PILZ 4.4% and the Greens 3.8% (down 8.7). Turnout was 79.4%, up 4.5 points.

Seats are awarded roughly proportional to vote share with a 4% threshold. The OVP won 62 of the 183 seats (up 15), the SPO 52 (steady), the FPO 51 (up 11), the NEOS 10 (up 1) and PILZ 8. Thus the FPO holds the balance of power, and will probably join the OVP in a conservative/far-right coalition government. Although a few votes remain to be counted, the Greens appear to have missed the threshold, losing all 24 of their seats.

The centrist parties, the SPO and OVP, had been in coalition for the last two terms. According to this article in The Guardian, both parties became more right-wing in an attempt to appeal to FPO voters. From what we have seen in other countries, this strategy only helps the far-right.

In the December 2016 Austrian Presidential election, Greens candidate Alexander Van der Bellen defeated the far-right Norbert Hofer 53.8-46.2, showing that a left-wing candidate could win. However, the SPO did not embrace a left-wing agenda.

The ConversationThis election was an utter disaster for the Austrian Greens. The Greens won 12.4% in 2013. With the major parties becoming more right-wing, this should have been an opportunity for the Greens to increase their vote. However, the Greens split into the PILZ and Greens before the election, and only the PILZ made it back into Parliament.

Adrian Beaumont, Honorary Associate, School of Mathematics and Statistics, University of Melbourne

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

Turnbull’s ratings fall in another bad Newspoll


Michelle Grattan, University of Canberra

The Coalition is trailing in its 21st consecutive Newspoll, with Labor maintaining its two-party lead of 54-46% and Malcolm Turnbull suffering a setback in his personal ratings.

As parliament resumes, with the energy issue preoccupying cabinet and the government nervously waiting on the High Court’s citizenship decisions, Turnbull’s lead over Bill Shorten as better prime minister narrowed to 41-33%, a margin of eight points, compared with 11 three weeks ago (42-31%).

Turnbull’s net satisfaction in the poll, published in Monday’s Australian, worsened from minus 17 points to minus 24 points. Shorten’s rating also worsened, from minus 20 to minus 22.

The run-up to the poll was marked by Tony Abbott’s controversial speech on climate change, delivered in London. It also saw further public uncertainty over the government’s yet-to-be-announced policy on energy, which cabinet is expected to consider on Monday.

Last week, the government effectively dumped any prospect of bringing in a clean energy target, which kills the chance of any bipartisanship. Opposition spokesman Mark Butler on Sunday told the ABC that if Turnbull walked away from a clean energy target “he won’t get the support of the Labor Party”.

When he challenged Abbott in 2015, Turnbull pointed to the Coalition being behind in 30 Newspolls in a row. His government is now more than two-thirds of the way to that benchmark.

Labor’s primary vote fell one point to 37%, while the Coalition was steady on 36%. One Nation rose one point to 9%; the Greens rose one point to 10%; and support for “others” fell from 9% to 8%.

The poll of 1,583 voters was done from Thursday to Sunday.

In parliament, the government this week will press its efforts to lower the company tax rate for larger enterprises. A deal with Nick Xenophon earlier this year saw the passage of the tax plan reductions for companies with a turnover of up to A$50 million annually. But the government has not been able to win support for the cuts proposed for big business. It is the cuts for the large companies which have the more significant economic impact.

Xenophon on Sunday night reiterated his Nick Xenophon Team (NXT) would not support the cuts. “We’ve ruled it out. Our position won’t change,” he said.

The ten-year tax plan was a centrepiece of the Coalition’s 2016 election policy.

The Business Council of Australia (BCA) has stepped up its lobbying for the cuts, with a booklet titled “Why Australia needs a competitive company tax rate”.

The BCA says Australia’s top company tax rate of 30% is the fifth-highest in the OECD and could soon be the third-highest. The average company rate across the OECD is 24%, while in Asia the average is 21%.

The UK has plans to cut its federal rate from 35% to 20% and the UK has legislated to go from 19% to 17%, the BCA points out.

BCA chief executive Jennifer Westacott said the “global action should be a wake up call for the Senate that Australia cannot afford to stand still, since every company tax reduction overseas is a de-facto tax increase on Australia”.

Westacott said parliament’s decision in March to restrict the tax cut to businesses with a turnover up to $50 million per year “leaves the job half done and our economy at risk as other countries become more competitive in the global race for investment.

“Those who attack the case for company tax cuts have no alternative credible plan to get investment growing strongly again,” she said.

The government is also battling to get the numbers to pass its higher education package. On this Xenophon said the NXT had serious reservations “but we’re still talking to the government”.

Xenophon is one of those MPs whose citizenship status is before the High Court, but he plans to leave federal politics even if the court decision goes in his favour (although he hasn’t said exactly when). He intends to lead his SA-BEST party at next year’s South Australian election.

The government has two ministers – Barnaby Joyce, the deputy prime minister, and Fiona Nash, the Nationals’ deputy – before the High Court, as well as former minister Matt Canavan, who quit the frontbench when the question of his constitutional eligibility for parliament arose.

The ConversationThe High Court is expected to make its decisions on the seven citizenship cases quickly.

Michelle Grattan, Professorial Fellow, University of Canberra

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

NSW ReachTEL: Coalition leads 52-48 as One Nation slumps. Xenophon tied or ahead in SA’s Hartley


Adrian Beaumont, University of Melbourne

A NSW ReachTEL poll for Fairfax media, conducted 5 October from a sample of 1650, gave the Coalition a 52-48 lead by preference flows at the 2015 election, a 3 point gain for Labor since a Channel 7 ReachTEL poll, conducted just after Mike Baird’s resignation as Premier in January. With 8.1% undecided excluded, primary votes in this ReachTEL were 40.9% Coalition (down 1.8), 33.7% Labor (up 5.7), 9.9% Greens (up 1.5), 8.9% One Nation (down 7.4) and 2.4% Shooters, Fishers and Farmers. NSW uses optional preferential voting.

Premier Gladys Berejiklian held a 52.1-47.9 lead over opposition leader Luke Foley in ReachTEL’s forced choice better Premier question, which tends to favour opposition leaders over polls that have an undecided option.

The January poll was taken when One Nation was at its peak, both nationally and in state polls, and that poll had One Nation at a record for any NSW poll. As One Nation’s right-wing economic views have become better known, it appears that much of their working-class support has returned to Labor.

In Queensland, One Nation’s support in a recent ReachTEL was 18.1% including undecided voters. Queensland Premier Annastacia Palaszczuk’s support for the Adani coal mine does not distinguish Labor from the LNP. If the two major parties are seen as similar, anti-establishment parties can thrive.

At the recent NZ and UK elections, the total major party vote increased substantially. I believe this increase occurred at least partly because the major NZ and UK parties had very different policies, and anti-establishment parties were denied the “this mob is the same as the other mob” line. In contrast, the major parties were in coalition before the German election, and both slumped badly, with the far-right AfD winning 12.6%.

NSW state by-elections: Nats hold seats despite big swings against

Yesterday, by-elections occurred in the NSW National-held seats of Murray and Cootamundra, and in Labor-held Blacktown; all three seats were easily won by the incumbent party at the 2015 election. The Liberals did not contest Blacktown.

In Murray, Shooters candidate Helen Dalton stood as an Independent at the 2015 state election. The Nationals won by 53.5-46.5, a 19.2 point swing to Dalton since 2015. Primary votes were 40.5% Nationals (down 15.0), 31.4% Dalton (up 13.2) and 21.0% Labor (up 4.8).

In Cootamundra, the Nationals won by 60.1-39.9 vs Labor, a 10.3 point swing to Labor. Primary votes were 46.0% Nationals (down 19.9), 24.2% Labor (down 1.8) and 23.5% Shooters, who did not stand in 2015.

With no Liberal in Blacktown, Labor romped to 68.9% of the primary vote (up 15.0). The Christian Democrats were a distant second with 17.7% and the Greens won 8.8%.

These results do not yet include postal votes, which are likely to favour the Nationals. Further pre-poll votes in Murray and Cootamundra also remain to be counted.

Galaxy poll in SA seat of Hartley: Xenophon leads Liberals 53-47, but ReachTEL has a 50-50 tie

Nick Xenophon has announced he will leave the Senate after the High Court’s ruling on whether current members are eligible has been delivered. Xenophon will contest the SA state Liberal-held seat of Hartley at the March 2018 election. A Galaxy robopoll in Hartley, from a sample of 516, had Xenophon leading the Liberals by 53-47, from primary votes of 38% Liberal, 35% Xenophon, 17% Labor, 6% Greens and 3% Conservatives.

However, a ReachTEL poll for Channel 7 had a 50-50 tie, from primary votes of 36.7% Liberal, 21.7% Xenophon and 19.7% Labor. The primary votes probably include an undecided component of a little under 10%; these people can be pushed to say who they lean to. It is likely leaners strongly favoured Xenophon, as the Liberals would lead on the primary votes provided.

The Galaxy poll is encouraging for Xenophon, but the ReachTEL poll is more sobering. Labor will target Xenophon during the campaign over votes he has taken in the Senate that have helped the Coalition pass its legislation. Currently, only those who follow politics closely are aware of these votes, but Labor’s campaign is likely to increase this awareness. Such a campaign could undermine Xenophon’s support among centre-left voters.

Essential state polling: July to September

Essential has released July to September quarterly polling for all mainland states, by month for the eastern seaboard states. In September, the Coalition led by 51-49 in NSW, unchanged on August. In Victoria, Labor led by 54-46, a 2 point gain for Labor since August. In WA, Labor led by 54-46 for July to September, a 1 point gain for the Coalition.

In Queensland, Labor led by 53-47 in September, a 2 point gain for the LNP since August. Primary votes were 35% Labor, 35% LNP, 13% One Nation and 10% Greens. By splitting One Nation and Others preferences evenly, Essential is likely to be overestimating Labor’s two party vote.

In SA, Labor led by an unchanged 52-48 in July to September. Primary votes were 37% Labor, 30% Liberal, 18% Nick Xenophon Team and 6% Greens. If these hard-to-believe primary votes are correct, Labor is far further ahead than 52-48. The NXT won 21.3% in SA at the 2016 Federal election.

The ConversationEssential’s state polling was not good at any of the Victorian 2014, Queensland 2015 or NSW 2015 state elections.

Adrian Beaumont, Honorary Associate, School of Mathematics and Statistics, University of Melbourne

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