High Court rules Joyce and Roberts ineligible. SSM plebiscite turnout high


Adrian Beaumont, University of Melbourne

In July and August, six Senators and Deputy PM Barnaby Joyce were referred to the High Court as they may have been ineligible to stand for election or sit in Parliament. These cases were all considered under Section 44(i) of the Constitution, relating to having a foreign citizenship.

Greens Senators Larissa Waters and Scott Ludlam had resigned from the Senate once their dual citizenship was discovered, but the High Court still had to determine if they were validly elected. Nationals Senators Fiona Nash and Matt Canavan, One Nation Senator Malcolm Roberts and Senator Nick Xenophon did not resign.

Today, the High Court ruled that Waters, Ludlam, Nash, Roberts and Joyce were all ineligible to have been elected at the 2016 election, while Canavan and Xenophon were eligible. The four Senators found ineligible will be replaced after a special recount by the next on their party’s ticket.

As Joyce sits in the lower house, a by-election in his seat of New England is required, and will be held on 2 December. Joyce has divested himself of his NZ citizenship, and will run for this by-election. Independent Tony Windsor, who Joyce defeated 58.5-41.5 at the 2016 election, will not contest the by-election, so Joyce should win easily.

With New England vacant, the Coalition still holds 75 of the 149 current House seats, a bare majority. Unless Joyce loses the by-election, the Coalition retains its majority.

There are often big swings at by-elections, but in most by-elections, the government’s majority is not at risk. The stakes are higher in this by-election, which should help Joyce to mitigate the swing against him. It is very likely that Joyce will retain New England, and return to Parliament.

SSM turnout data and polling

As at last Friday 20 October, the ABS estimated it had received 11.9 million forms for the same sex marriage plebiscite (74.5% of the electorate). The ABS’s estimate is now based on forms scanned, rather than on the weight of containers with forms. On 13 October, an estimated 10.8 million forms had been returned under the old method. Only 300,000 forms were returned in the following week, so the ABS believes the old method was an underestimate.

In this week’s Essential, 75% said they had already voted, and a further 8% said they would definitely vote, implying a turnout of 83%. Those who had already voted favoured Yes by 60-34, while the remaining 25% favoured Yes 39-33.

High turnout could help Yes win an absolute majority of the whole electorate, not just of those who vote. Such a victory would give Yes more legitimacy, making it harder for conservative politicians to excuse delaying parliamentary action.

Today is the nominal deadline to post the envelope, but envelopes will be accepted until 6pm on 7 November. The result will be declared on 15 November.

ReachTEL 53-47 to Labor

A Sky News ReachTEL poll, conducted 25 October from a sample of 2400, gave Labor a 53-47 lead, unchanged since late September. ReachTEL is using respondent allocated preferences. At this stage, media reports do not include the forced choice that would have been asked of the 9% “undecided”. From the limited information that has been released, Kevin Bonham estimates the two party vote by last election preferences was 53.7-46.3 to Labor.

Turnbull’s better PM lead over Shorten narrowed to 51-49 (52-48 in September). ReachTEL uses a forced choice question for better PM, which tends to favour opposition leaders more than polls with a don’t know option. Shorten is much more likely to win a ReachTEL better PM poll than Newspoll.

39% of respondents had an NBN connection, and by 44-35, these people were dissatisfied with their connection. 92% are concerned about electricity prices increasing in the next year, including 68.5% very concerned. 52% selected cutting power prices as the most important priority, with 27% for reducing emissions and 20% reliability. Just 28% had heard a lot about the National Energy Guarantee.

This poll was taken Wednesday night, before most of the public were aware that the AWU investigation had backfired on Michaelia Cash. While the Cash affair is embarrassing for the Coalition, it may not move the polls as the public is cynical about all politicians, and expects some bad behaviour.

Essential 52-48 to Labor

This week’s Essential, from a sample of 1860, is unchanged on last week, with primary votes of 37% Coalition, 36% Labor, 9% Greens, 8% One Nation and 3% Nick Xenophon Team. Last week’s sample appeared bad for Labor, and that sample is still in the two-week aggregate. Labor’s lead may increase when that sample washes out next week.

By 35-18, voters approved of the NEG, with 47% unsure. By 35-32, they approved of not having a Clean Energy Target. By 41-32, voters disapproved of phasing out renewable energy subsidies by 2020. 31% thought power prices would increase as a result of the NEG, 16% decrease and 31% thought it would make no difference.

Voters would trust Labor by zero to 12 points over the Liberals on a range of energy issues. On all issues, at least 50% thought there was no difference between the major parties or didn’t know.

ReachTEL seat polls: Kooyong, Warringah and Wentworth

ReachTEL conducted three seat polls on 19 October for the left-wing Australia Institute. In Josh Frydenberg’s Kooyong, the Liberals led by 57-43, a 6 point swing to Labor since the 2016 election. In Turnbull’s Wentworth, the Liberals led by 57-43, an 11 point swing to Labor. In Abbott’s Warringah, the Liberals led by 60-40, a mere one point swing to Labor. Samples were 850-920 for each seat.

I think the low swing in Warringah is because ReachTEL asked for parties, not candidate names; this is reasonable as the identities of Labor’s candidates are unknown. Abbott is likely to be a significant drag on the Liberal vote in Warringah should he re-contest at the next election.

Japan election: landslide for governing coalition

The conservative LDP, with its Komeito ally, has governed Japan since its foundation in 1955, with only two brief periods in opposition. An election for Japan’s lower house was held on 22 October.

In Japan, electors receive two votes, one for a single member electorate and one for a proportional block. Unlike NZ and Germany, there is no attempt to compensate parties that do badly in electorates using the proportional allocation; these seats are simply added to electorate seats. At this election, there were 465 seats (down 10 from 2014), with 289 electorate seats and 176 proportional block seats.

In the electorates, the LDP steamrolled the opposition, winning 218 of the 289 electorates, with a further 8 electorates for its Komeito ally. In the proportional blocks, the governing coalition won 87 of the 176 seats, with 49 for the centre-left coalition and 40 for the populist right Hope Party and its ally. The LDP benefited from a divided opposition in the electorates, winning 48.2%, with 20.6% for their nearest opponent, the Hope Party.

The ConversationOverall, the governing coalition won 313 of the 465 seats, down 11 from 2014, but still more than a 2/3 majority, with the LDP alone winning 284 seats. The centre left won 69 seats, the populist right 61 and Independents 22.

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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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.

High stakes for Turnbull government as High Court hears MPs’ citizenship cases


Michelle Grattan, University of Canberra

Barnaby Joyce is on tenterhooks. Despite Malcolm Turnbull’s confidence that the High Court will find for him, Joyce’s parliamentary eligibility is a key to how the government finishes the year.

From Tuesday to Thursday, the court will consider what is surely one of the most extraordinary set of cases to come before it – the constitutional position of seven current and former MPs who were dual citizens.

All but Joyce are or were senators, which means that the only potential byelection that could be caused is for Joyce’s seat of New England. Three are Nationals: Joyce, Fiona Nash and Matt Canavan. Canavan quit the ministry (but not the parliament) when his issue arose; Joyce and Nash remain on the frontbench.

The two Greens, Scott Ludlam and Larissa Waters, resigned from parliament when they discovered their dual nationality. It was Ludlam’s departure that started the dominoes falling, as others checked their positions. Both Greens argue they were ineligible to sit – although the Commonwealth is actually saying Waters was eligible.

The remaining two are One Nation’s Malcolm Roberts, and Nick Xenophon.

Roberts, Ludlam and Waters were born overseas. The rest had foreign citizenship by descent. Joyce and Ludlam were New Zealanders; Nash, Xenophon and Roberts had British citizenship; Waters found herself a Canadian because she was born there during her parents’ brief stay; Canavan was Italian.

There have been some bizarre twists. Canavan said initially his mother had signed him up to Italian citizenship without his knowledge; later it was found she hadn’t had to – he already had it.

This latter fact is important for the Commonwealth’s legal argument. It is contending the constitutional provision about citizenship was only intended to exclude those who acted positively to obtain foreign citizenship or knowingly kept it. If Canavan’s Italian citizenship was gained by positive action, he wouldn’t be protected by that argument, as he would be if he were Italian by descent.

Xenophon had a very weak form of British citizenship, via his father, who had emigrated from Cyprus, which was a British territory.

The court has already declared that Roberts, who sent questions about his status to defunct email addresses, was a British citizen when elected, although it has not yet ruled on his eligibility.

Section 44 (i) of the Constitution reads clearly enough, on the face of it.

A person cannot be chosen for or sit in federal parliament if he or she:

… 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.

To clear themselves of this potential problem, an aspiring parliamentarian has to take proper steps to renounce a foreign citizenship.

It’s notable the major parties, which have good vetting, aren’t caught up in this case, although there have been allegations against some of their MPs.

The government is arguing that if the MP was Australian at birth (whether born here, or abroad to Australian parents) and wasn’t aware of their dual citizenship, they should not be found ineligible – in other words, that ignorance is a defence.

But if the MP was born overseas and later naturalised, the government argues, they were on notice about potentially being a foreign citizen, regardless of what they thought was the case. In this instance, according to the government’s argument, ignorance is not a defence.

If the court clears most of the MPs, it would be an effective rewrite, through interpretation, of the literal wording of this section.

The potential implications of the court’s decisions are wide and varied.

With Ludlam and Waters already out of parliament, the issue is just how they are replaced. If the court agrees with their own assessments that they were ineligible, their replacements will be the next candidates on the Greens 2016 tickets in Western Australia and Queensland, respectively Jordon Steele-John and Andrew Bartlett (a one-time Australian Democrats senator and leader).

If the court upheld the eligibility of one or both, the replacement or replacements would be chosen by the party. Ludlam has indicated he would not seek nomination; Waters, anxious to return to parliament, would be expected to do so.

It’s always possible, incidentally, for someone elected via a countback to then resign, leaving the way for the party to choose the replacement.

If Roberts is knocked out, the next on the One Nation ticket is Fraser Anning, who recently avoided another constitutional impediment: bankruptcy.

Disqualification of Xenophon would see Tim Storer of the Nick Xenophon Team (NXT) installed. But if Xenophon’s eligibility is upheld, he will leave the Senate anyway, to contest the South Australian election. In that circumstance, his party would choose who followed him.

The disqualification of Nash and Canavan would lead to candidates down their respective 2016 New South Wales and Queensland tickets replacing them. That would create some internal complications regarding the numbers between the Coalition parties.

Professor Anne Twomey, from the University of Sydney Law School, noted that if Nash were disqualified and a recount held, she would most likely by replaced by the Liberal who was next on the joint ticket. She said:

Even if that Liberal then resigned in an effort to pass the seat back to the Nationals, the constitution requires that the person who fills the seat is a member of the same party as the senator who was ‘chosen by the people’.

This would not have been Nash, as she was disqualified, and therefore never validly chosen. It would be the Liberal who won the seat on the recount. This would mean that she would have to be replaced by a Liberal, upsetting the balance in the Coalition.

The loss of one or both National senators would also mean a reshuffle of portfolios. This would fit with Turnbull’s desire for an end-of-year reshuffle, but test the Nationals’ talent pool. (Canavan is out of the ministry but Joyce is acting in his roles.)

But it is the finding on Joyce that has the big implications. If he were forced to a byelection, it would rock the government – even though he would almost certainly retain his seat.

The first issue would be whether he stood down from the ministry.

Twomey noted that while the constitution allows a person to be a minister for three months without holding a seat, the problem would be that Joyce had not validly held a seat since July last year – “which suggests that his three-month grace period is well and truly over. On that basis he would have to stop acting as a minister immediately.”

With Joyce out of parliament, the government would lose its majority on the floor of the House of Representatives. The result of particular votes would depend on the issue, the crossbenchers and – if it came to that – the Speaker’s casting vote.

Fighting a byelection would be distracting and disruptive for a government struggling in the polls.

The former independent member for New England, Tony Windsor, who is maintaining in the High Court that Joyce should be disqualified, has not ruled out running in a byelection. One Nation could be in the field, as could the Shooters, Fishers and Farmers Party, whose support will be tested in the NSW byelections this weekend.

The Newspoll quarterly breakdown, published this week, has found the government under pressure in regional areas. But a ReachTEL poll done last month for the Australia Institute found the Nationals polling 44.6% in New England, Windsor 26.5% and One Nation 9.8%, Labor 8.4%, and the Greens 2.4%.

The Queensland election, expected to be announced very soon, would be another dynamic in a byelection situation.

If, on the other hand, Joyce’s eligibility is upheld, Turnbull’s end-of-year reshuffle becomes much easier, especially with a strong win for the “yes” case now expected in the marriage ballot.

That still leaves the challenge of energy policy. Energy Minister Josh Frydenberg on Monday signalled the government was turning its back on a clean energy target, a reflection of the strength of the conservative voices within Coalition ranks – a combination of right-wing Liberals and the Nationals.

On the present timetable, the government is likely to take the broad outlines of its energy policy to the Coalition partyroom when parliament resumes next week.

The ConversationBut the situation is fluid, with the outcome in the High Court the known unknown. While the timing isn’t precise, the court is expected to be quick with its decision. It is obviously not driven by politics, but it is alert to the need to provide political certainly as soon as possible.

Michelle Grattan, Professorial Fellow, University of Canberra

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

High Court sets dual citizenship hearings for October



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Malcolm Roberts is one of several MPs currently before the High Court.
AAP/Mick Tsikas

Michelle Grattan, University of Canberra

The High Court has rejected the government’s request to have MPs’ dual citizenship cases heard in mid-September, instead setting hearing dates of October 10, 11 and 12.

This prolongs the uncertainty for the government, which has the eligibility of two Nationals ministers – Barnaby Joyce and Fiona Nash – and former minister Matt Canavan under consideration.

Labor has made it clear it will continue to challenge the presence on the frontbench of Joyce and Nash. Opposition Leader Bill Shorten on Thursday repeated his call for the two to stand down from the ministry.

“It is an untenable, unsustainable situation for government ministers with a cloud over their eligibility to sit in their portfolios, making decisions.” Shorten said if it were “subsequently found out they weren’t eligible to sit in the parliament, the decisions they made can be appealed”.

The court currently has five current and former MPs before it – apart from Joyce and Canavan, they are two former Greens senators, Scott Ludlam and Larissa Waters, and One Nation’s Malcolm Roberts. Nash and crossbench senator Nick Xenophon will be referred to it when parliament resumes early next month.

Canavan’s lawyer revealed Canavan was an Italian citizen by descent since he was two years old, due to a change in Italian law at that time that enabled citizenship to be passed down through a person’s mother, not just their father.

This means that Canavan already had citizenship when his mother – of Italian descent but born in Australia – obtained it for him when he was an adult. He has said he only became aware she had signed him up after the citizenship issue blew up.

Solicitor-General Stephen Donaghue told the court the eligibility of Canavan, Joyce and Waters should be upheld, because they had not known they were dual citizens.

In contrast, Ludlam and Roberts had in the past filled out forms acknowledging they were citizens of other countries. Ludlam should be disqualified, Donaghue said, while Roberts’ situation turns on the timing of his renunciation form.

Roberts’ barrister said he needed more time before the case was heard.

The court has given standing in the case to Tony Windsor, who ran unsuccessfully against Joyce in New England at the last election.

Windsor held the seat as an independent until retiring at the 2013 election. He has not ruled out contesting if Joyce were declared ineligible and there was a byelection.

Windsor’s lawyer argued in court that Section 44 (i) of the Constitution was clear, and it was the candidate’s responsibility to check whether they were a dual citizen.

The ConversationPrime Minister Malcolm Turnbull repeated on Thursday that: “We are very, very confident that our members who have been caught up in this will be held by the court to be eligible to sit in the parliament”.

Michelle Grattan, Professorial Fellow, University of Canberra

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

To the High Court we go: six MPs under clouds in decisions that could undermine the government



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Deputy Prime Minister Barnaby Joyce is one of five MPs caught out in the ban in dual citizens holding seats.
AAP/Lukas Coch

Graeme Orr, The University of Queensland

Two green bottles and up to four blue ones. Falling from the parliamentary wall, unless the High Court saves them from the rules about MP qualifications. The six are now-resigned Greens senators Scott Ludlam and Larissa Waters, fellow upper house members Matt Canavan (LNP) and Malcolm Roberts (One Nation), and two government members of the lower house, Barnaby Joyce and David Gillespie (both Nationals).

At least that’s the latest count, as of Monday’s referral of Joyce to the court. I hesitate to file this piece lest the number rise again today.

What happens now?

First, a word on process. Gillespie’s case is different from the others, in two ways. He is not a dual citizen but faces claims about his “pecuniary interest” in a shop sub-leased to Australia Post. This is the constitutional rule that knocked out Family First senator Bob Day in April.

Also, Gillespie is being sued by his former Labor Party rival, acting as a “common informer” – a fancy term for an officious bystander who sues to enforce the law.

This avenue to challenge an MP has not been used before. It’s not entirely clear the court has power to declare Gillespie “not duly elected”. (As opposed to exacting a penalty from an MP, in the princely sum of A$200, for any day they sat while under a disqualification.)

The other five – facing dual citizenship claims – are not being sued at all. Rather, parliament has referred their positions to the court. A few things flow from that, aside from the Commonwealth almost certainly having to cover their legal costs.

One is that there is no belligerent plaintiff to argue against, say, Joyce. There will just be the solicitor-general, putting legal arguments for the Commonwealth, plus lawyers for whichever of the other four MPs or their parties choose to be represented.

Yet Joyce, Canavan and Roberts share a desire to convince the High Court that they are legitimate, arguing on related grounds that it might be unfair to unseat them.

Another is that while the election is long over, the High Court says it can undo an election on a reference from parliament. This is due to a quirky, 30-year-old ruling. I say quirky because, for more than a century, there’s been an absolutely strict time limit for challenging elections.

With electoral fraud, unlawful campaigning, or electoral commission stuff-up, a court case must begin within 40 days of the election. Yet the High Court says it can undo election results, long afterwards, over qualifications issues.

What will the MPs argue?

We must await the arguments, but it seems that Joyce, Canavan and Roberts will argue that they either took reasonable steps to renounce (Roberts) or that it was unreasonable to expect them to have known of their dual citizenship (Joyce and Canavan). In a 1992 case, the High Court softened the law against dual citizenship to allow a defence of “reasonable steps” of renunciation.

Roberts was born in India (after partition) to a Welsh father. He took some steps – three emails in one day on the eve of nominating, apparently – to renounce his UK inheritance. Was that enough, given the UK has a set application form and fee for renunciation? Roberts, some time after the election, received notice that his UK citizenship was expunged.

Canavan, Australian-born, asserts that his mother took out Italian citizenship on his behalf, without his knowledge.

Similarly, Joyce, also Australian-born, says he was blindsided to learn he had New Zealand citizenship via his NZ-born father. They want the court to inject a subjective element – actual or constructive knowledge of dual nationality – to avoid a finding that taking no steps to renounce does not meet the idea of “reasonable steps”.

It’s possible Joyce will also argue the details of NZ law. For example, whether it automatically bestowed citizenship on him, or whether he was merely guaranteed it if he applied to activate it.

The Greens pair, by resigning, seemed to admit they were disqualified. But MPs cannot declare themselves improperly elected. Only the court can do that.

Ludlam (New Zealand) and Waters (Canada) were each born overseas, but to Australian parents. They left their birth countries at the tender ages of three years and 11 months respectively.

At least in Waters’ case, her family lore (not law) was that her nationalisation as an Australian toddler terminated any Canadian status. In some countries, you lose your birth citizenship when you take out another nationality. This was the law in Australia until recently.

The logic of the Greens’ political position is to have their two Senate seats filled ASAP. Yet, in substance, their pair are hardly more blameworthy than the other MPs, who seek to fight on. They have hemmed themselves in, however, by resigning.

If the court found their disqualifications were OK, the Greens could reappoint them or any other Greens member, under the old rule for filling a “casual vacancy”.

Finally, to legal consequences. If a senator is declared “unduly elected”, the Australian Electoral Commission conducts a recount. Invariably, the next candidate in the party’s original electoral ticket inherits the seat.

That windfall beneficiary can keep it, or the party could cajole them to resign in favour of … the unelected MP. Because all of these MPs, with sufficient paperwork and knowledge, can fix up their qualifications.

Roberts and Waters say they’ve done that. Joyce and doubtless Canavan have that in train.

In a lower house seat, however, a recount would be crazy. The seat would go to the rival major party, robbing the electorate. Instead, the court effectively triggers a byelection.

In a worst-case scenario for Joyce (or Gillespie), he would recontest that fresh election. A lot would be at stake in New England (or Port Macquarie). But it’s hard to see the electors there treating now-ex-Kiwi Joyce as a fifth columnist.

The law is an unnecessary mess

All this is a law professor’s picnic.

Section 44, as it applies to elections, detracts from, rather than adds to, democracy. Its technicalities are a thicket, catching many a candidate. It sits oddly in a Constitution that never guaranteed a right to vote, leaving that small matter to the national parliament.

It’s time for reform. We inherited the dual citizenship rule, an old rule about fealty to one Crown, from our English forebears.

The ConversationThe founders struck it in stone in the Constitution. Yet state parliaments are fine with dual citizens being elected. So too is New Zealand. And, funnily enough, so nowadays is the UK.

Graeme Orr, Professor of Law, The University of Queensland

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

Hanson set to refer Malcolm Roberts to the High Court over dual citizenship questions



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Pauline Hanson said Malcolm Roberts has her full backing.
Lukas Coch/AAP

Michelle Grattan, University of Canberra

Pauline Hanson is set to move that the High Court consider the eligibility of One Nation senator Malcolm Roberts. There is a question mark over whether Roberts was a dual British citizen when he nominated for parliament.

Hanson’s announcement came after it was obvious a Greens move for a referral would be successful. This followed BuzzFeed News on Tuesday posting online Roberts’ signed application for Australian citizenship, in which he declared he was a British citizen at age 19 in 1974.

Whether Roberts was a dual national has been a long-running issue, with Roberts changing his story, from saying he was never a British citizen to most recently claiming he had renounced his British citizenship but refusing to make public the documentation. Under Section 44 of the Constitution a dual citizen is ineligible to stand for federal parliament.

Hanson and Roberts appeared at an often heated joint news conference, at which she declared he had been “eligible to stand at the time of nomination”.

In a statement, Hanson said that One Nation would be supporting Roberts “in his plan to refer himself to the High Court”. Later the statement was revised to say Hanson would move the referral.

She said it had always been Roberts’ “intention to submit his citizenship documents for public scrutiny”.

“In light of the major parties’ decision not to hold a full inquiry into the citizenships of senators, it was deemed that the High Court would provide senator Roberts the best opportunity to prove he has complied with the Australian Constitution and is lawfully elected,” she said.

“Senator Roberts has my full backing and total support from his fellow One Nation senators.”

Hanson told reporters Roberts’ case was “not straightforward” but “very complex”. “You don’t understand the full situation.”

Asked about what he had said on his application form, Roberts said: “I was a citizen of the UK and colonies … We all know that back then we were very strong members of the Commonwealth, we still are, we sang God Save The Queen until not long before then, I always thought that I was Australian, always thought I was Australian.”

The referral will have general agreement in the Senate. Earlier the government had resisted action against Roberts, with its Senate leader, George Brandis, saying on Tuesday that: “A person lodges an apparently regular nomination for an election, and they are declared to have been elected, then the onus of proof … lies on those who seek to prove that they weren’t validly elected to demonstrate that that is the case”.

The referral of Roberts is the latest in a dramatic series of events that has thrown the Senate’s membership into turmoil and given the High Court an extraordinary number of cases to deal with.

Apart from Roberts’ future, these include ruling on the filling of the places of two Greens senators, Larissa Waters and Scott Ludlam, who resigned because they discovered they were dual nationals, and considering the eligibility of the Nationals’ Matt Canavan, whose mother signed him up as an Italian citizen.

The Senate is also awaiting the arrival of the replacement for former Western Australian Liberal senator Chris Back, who recently retired. As well, Special Minister of State Scott Ryan is on extended medical leave.

The ConversationBut arrangements between the parties are in place to ensure the various court cases and gaps do not affect the voting numbers.

Michelle Grattan, Professorial Fellow, University of Canberra

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