Newspoll and Ipsos give Labor a 53-47 lead as Barnaby Joyce wins convincingly in New England



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Barnaby Joyce’s big win in the New England byelection had little to do with recent political developments.
AAP/Tracey Nearmy

Adrian Beaumont, University of Melbourne

This week’s Newspoll, conducted between November 30 and December 3 from a sample of 1,560, gave Labor a 53-47 lead, a two-point gain for the Coalition from three weeks ago. Primary votes were 37% Labor (down one), 36% Coalition (up two), 10% Greens (up one) and 8% One Nation (down two). This is Malcolm Turnbull’s 24th consecutive Newspoll loss, six short of Tony Abbott’s 30.

32% were satisfied with Turnbull’s performance (up three) and 57% were dissatisfied (down one), for a net approval of minus 25. Bill Shorten’s net approval was minus 21, down two points. Turnbull extended his better prime minister lead over Shorten from 36-34 to 39-33, but this is still Turnbull’s second-worst better prime minister lead.

The two-party shift in Newspoll is overstated because the left-wing parties (Labor and the Greens) are stable on 47%, and the right-wing parties (the Coalition and One Nation) are also stable on 44%.

It is clear from the Queensland election seat results that One Nation preferences assisted the LNP. I think pollsters should stop giving the Coalition just the 50% of One Nation preferences that it received at the 2016 election, and instead assume the Coalition will receive 60% of One Nation preferences. This is consistent with the recent Queensland and Western Australian state elections.

On four of six leader attributes, Turnbull’s ratings fell since May, though this included the negative attribute of arrogant. Shorten only had a clear lead on being in touch with the voters (51-42).

Three weeks ago, Newspoll asked a best Liberal leader question with options for Turnbull, Julie Bishop and Peter Dutton. Bishop led Turnbull 40-27, with 11% for Dutton. This week, Newspoll also included Abbott, and Bishop led Turnbull 30-25, with 16% for Abbott and 7% Dutton. Among Coalition voters, Turnbull led Bishop 39-28. Abbott had 32% and Dutton 12% among One Nation voters.

Ipsos 53-47 to Labor

The first Ipsos poll since September, conducted between November 29 and December 2 from a sample of 1,400, gave Labor an unchanged 53-47 lead.

Primary votes were 34% Coalition (down one), 33% Labor (down one), 13% Greens (down one), 7% One Nation (not asked before), 4% Nick Xenophon Team, and 10% for all “others”. As usual in Ipsos polls, the Greens are higher than in other polls.

On respondent-allocated preferences Labor had a narrower 52-48 lead. This is another indication that One Nation is assisting the Coalition more than at the 2016 election.

Ipsos gives milder leader ratings than Newspoll, particularly for Turnbull. Turnbull’s ratings were 49% disapprove (up two), 42% approve (steady). Shorten’s net approval was minus 14, up two points. Turnbull led Shorten by an unchanged 48-31 as better prime minister.

Ipsos’ best Liberal leader question included the same people as Newspoll, plus Scott Morrison. Bishop led Turnbull 32-29, with 14% for Abbott, 5% Dutton, and 4% Morrison. Among Coalition voters, Turnbull led Bishop 35-29, with 18% for Abbott.

Ipsos also asked about the best Labor leader with three options: Shorten, Tanya Plibersek and Anthony Albanese. Shorten led Plibersek 25-23, with 20% for Albanese. Among Labor voters, Shorten led Plibersek 38-24, with 17% for Albanese. Greens voters favoured Plibersek 35-21 over Shorten, with 15% for Albanese.

By 49-47, voters supported changing the Constitution to allow MPs to be dual citizens. By 71-19, they supported a royal commission into the banks. 71% thought the party leader should be allowed to lead for the full term of the government, while only 25% thought the governing party should change leaders mid-term.

ReachTEL 53-47 to Labor

A Sky News ReachTEL poll, presumably conducted on November 28 from a sample of more than 2,000, gave Labor a 53-47 lead by respondent-allocated preferences, unchanged since October. Primary votes were 36% Labor (up one), 33% Coalition (down one), 10% Greens (up one) and 9% One Nation (steady).

These vote shares may not include a small percentage of undecideds, who can be pushed into saying which way they lean. Using 2016 election preference flows, Kevin Bonham estimates this poll was 54.7-45.3 to Labor.

In ReachTEL’s forced choice better prime minister question, Turnbull had a 52-48 lead over Shorten (51-49 to Turnbull in October). Turnbull’s better prime minister leads in ReachTEL have usually been narrower than in Newspoll, which allows an undecided option.

By 69-12, voters favoured a royal commission into the banking sector. By 44-43, they favoured allowing dual citizens to serve in federal parliament. By 56-31, voters thought businesses should not be able to refuse services for same-sex couples.

Barnaby Joyce’s crushing victory at New England byelection

At the New England byelection held on December 2, Barnaby Joyce thrashed Labor by 73.9-26.1 after preferences. This was a 7.4-point swing to Joyce since the 2016 election.

Joyce won an overwhelming 64.9% of the primary vote (up 12.6), to 11.2% for Labor (up 4.2), 6.8% for independent Rob Taber (up 4.0), and 4.3% for the Greens (up 1.3). The 13 other candidates all won well under 4%, and forfeited their deposit. In 2016, Tony Windsor won 29.2%, but Labor and the Greens were only able to take 5.5 points of his vote.

While Joyce is detested by urban lefties, he is evidently very popular in New England.

The massive victory can be partly explained by the lack of competition. Unlike Windsor, none of Joyce’s opponents had the resources to run a strong campaign.

I believe that Joyce also benefited from the circumstances of the byelection. Many voters would have thought he was disqualified on a technicality, and so he received a sympathy vote. While lefties would like an early election, it is unlikely that most Australians want one. Re-electing Joyce made an early election less likely.

The above two factors also apply to the Bennelong byelection on December 16. Given the double-digit primary vote swing to Joyce, I am more sceptical of Labor’s chances in Bennelong.

Joyce’s big win had little to do with recent political developments. Booth results show he had large swings towards him on both election day and pre-poll booths, and also postal votes.

Queensland election late counting: Greens set to win Maiwar

Tuesday is the last day for postal votes to be returned for the Queensland election, and we will probably know the final seat count by the end of this week.

In Maiwar, with 86.5% of enrolled voters counted, the Greens have taken a 51-vote lead over Labor in the race for second. Preferences from a minor candidate will benefit the Greens, so their real lead is about 200 votes. If this holds Labor will be excluded, and the Greens will defeat Shadow Treasurer Scott Emerson on Labor preferences.

A Maiwar win would give the Greens their first elected Queensland MP; they briefly held a seat as a result of a defection from Labor.

The ConversationWhile still in doubt, Labor is looking more likely to win Townsville. The ABC gives it a 52-vote two-candidate lead over the LNP, and I believe the ABC’s estimate is understating Labor. Unfortunately, we currently have no official two candidate counts from the Electoral Commission of Queensland. If Labor wins Townsville, it will probably have 48 of the 93 seats: a three-seat majority.

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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Coalition behind in two new polls as triumphant Joyce heads back to Canberra


Michelle Grattan, University of Canberra

The Coalition trails 47-53% in the latest Newspoll and the Fairfax-Ipsos poll, but the government goes into the parliamentary week heartened by Barnaby Joyce’s landslide win in Saturday’s New England byelection.

Newspoll published in Monday’s Australian shows the government clawing back from the massive 45-55% two-party gap of three weeks ago, and Malcolm Turnbull improving his net satisfaction rating and widening his lead as better prime minister.

But while the government improved compared with the previous poll, this is the 24th consecutive Newspoll the Coalition has lost in two-party terms.

Interviewed on Sky on Sunday, Turnbull said “I don’t run the government based on the Newspoll”, although in 2015 he cited 30 bad Newspolls as one of the reasons Tony Abbott should be deposed.

The Coalition hopes the decisive New England outcome – where Barnaby Joyce has nearly 65% of the primary vote, representing a swing of about 12.5% – means the result could be officially declared in time to have him back in the House of Representatives by the end of the week or even mid-week.

Turnbull signalled the government will take an aggressive approach to Labor in the parliamentary week – expected to be the last of the year. It will move to have certain ALP MPs referred to the High Court over their citizenship, and pursue Bill Shorten over senator Sam Dastyari’s behaviour in relation to a Chinese donor.

In Newspoll, the government’s primary vote is up two points to 36%; Labor’s is down one point to 37%. One Nation has fallen two points to 8%; the Greens are up one point to 10%.

Turnbull’s net satisfaction has improved from minus 29 points to minus 25; Shorten’s net satisfaction has worsened from minus 19 to minus 21. Turnbull’s lead as better prime minister has widened to 39-33%, compared with only a two-point advantage in the last poll.

Turnbull said he had “every confidence that I will lead the Coalition to the next election in 2019 and we will win it”.

The Fairfax-Ipsos poll showed Turnbull well ahead of Shorten as preferred prime minister (48% to 31%).

In that poll, Julie Bishop is the preferred Liberal leader (32%), over Turnbull (29%). Tony Abbott trails on 14%, followed by Peter Dutton on 5% and Scott Morrison on 4%. Liberal voters, however, prefer Turnbull (35%) over Bishop (29%) and Abbott (18%).

But voters overwhelmingly oppose a government changing leaders between elections (71% to 25% who approve). The strength of the opposition indicates the high transactional costs the Liberals would incur if they switched from Turnbull before the election.

On preferred Labor leader, people were relatively evenly split between Shorten (25%), Tanya Plibersek (23%) and Anthony Albanese (20%). Shorten had a clear lead (38%) among Labor voters over Plibersek (24%) and Albanese (17%).

The parliamentary week will be dominated by same-sex marriage and MPs’ citizenship. The government will also introduce a suite of legislation targeting foreign interference and espionage.

In his wide-ranging interview, Turnbull talked up his plan to make personal income tax cuts a focus of his pitch for the election, saying “our intention is to introduce them before the next election”.

“That’s our intention but of course you’ve got to stick to your commitment, our commitment to keep getting the budget back into balance by 2021,” he said. It remains unclear whether the cuts would be simply announced pre-election or their delivery would start then.

Turnbull indicated that in the same-sex marriage debate he will support amendments that were moved unsuccessfully in the Senate by Attorney-General George Brandis, the most important of which would allow celebrants to refuse to perform a marriage.

Whatever the fate of the Brandis amendments, the extra safeguards and restrictions unsuccessfully pushed by hardline conservatives in the Senate last week are expected to be defeated in the lower house as well.

Ahead of the release of MPs’ citizenship declarations, both sides claim the other has MPs who should be referred to the High Court.

Turnbull said he was satisfied, on the basis of the reports from Coalition MPs, “that there are none of our members that are ineligible”.

He said there were plainly a number on the Labor side whose status should be determined by the court, and if Labor would not refer them, the government would do so. This was an “acid test” of Shorten’s integrity, Turnbull said.

But Manager of Opposition Business Tony Burke described the government’s proposed action as appalling. He said it was adopting “a protection racket for their own members” while planning to refer Labor MPs.

Noting that currently referrals could only be moved by a minister, Burke said that on Monday he would seek to rectify this, so referrals could be moved by either side.

Turnbull continued the government’s attack over Dastyari who, it was revealed last week, in 2016 told a Chinese donor who is of interest to Australian security agencies that his phone was likely tapped.

Turnbull said Dastyari “has betrayed Australia’s interests” and repeated that he “must go” from parliament.

He hinted the Dastyari affair was being investigated by the authorities but said: “This is a political matter and I do not give directions to our police or our security agencies on operational matters”.

But there were “a number of facts in the public domain and it’s a matter for the relevant agencies to look into”, Turnbull said.

If Shorten didn’t act on Dastyari it meant the opposition leader was putting his factional survival ahead of Australia’s national security, Turnbull said.

“It’s time for Bill Shorten to show that he’s really on Australia’s side and boot Dastyari out,” he said.

Shorten is standing by Dastyari although he has been demoted; anyway, while it could expel him from the party, Labor has no power to remove him from parliament.

The government’s legislation targeting foreign interference will strengthen and modernise offences including espionage, sabotage and treason, and introduce new offences targeting foreign interference and economic espionage.

Among the new offences, there will be ones that criminalise covert and deceptive activities of foreign actors that fall short of espionage but are intended to interfere with Australia’s democratic system and processes or support the intelligence activities of a foreign actor.

New provisions will criminalise support for foreign intelligence agencies, modelled on offences banning support for terrorist organisations.

There will be a reformed secrecy regime to criminalise disclosing information such as classified documents. This will replace old offences in the Crimes Act.

The ConversationA new transparency scheme will be established to inform the public and decisionmakers of instances of foreign influence on the governmental and political processes. Those who act on behalf of or in the interests of foreign principals will have to register that fact.

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.

Barnaby Joyce storms home in New England byelection victory


Michelle Grattan, University of Canberra

Nationals leader Barnaby Joyce has been returned to parliament with a big swing toward him in his New South Wales seat of New England.

With around half the vote counted, Joyce had won a swing on primary votes of about 11%, polling about 63% compared with 52% at the 2016 election.

A delighted Malcolm Turnbull, appearing at the Tamworth victory celebration with Joyce, told the crowd it appeared to be “the largest swing to the government in the history of byelections in Australia”.

Turnbull said it been a “stunning victory” and he would relish “getting the band back together”.

Surrounded by his parliamentary team, Joyce said it was a massive win for the Nationals.

He also paid tribute to the embattled Turnbull, saying running a country was a little bit harder than running sheep through a gate – and “you need someone with the skillset of this fellow here”.

The vote follows a week in which rebel Nationals forced the government to launch a royal commission into the banks. On Friday the NSW Nationals’ leader and deputy premier, John Barilaro, launched an extraordinary attack on Turnbull, saying he should quit by Christmas.

The byelection campaign was dirty at times, with persistent chatter about Joyce’s personal life. It was forced by the High Court ruling Joyce ineligible to sit in parliament because he was a dual New Zealand citizen via his father.

The result shows voters did not blame Joyce for his failure to do the proper checks, instead extending something of a sympathy vote to him.

Joyce had always been expected to be comfortably returned but the swing is a morale booster for the Nationals in particular and the government generally. Joyce’s return to parliament and the role of deputy prime minister will bring the government’s numbers in the lower house to 75.

But for Turnbull, the test will be in Bennelong at the December 16 byelection, where John Alexander, who resigned in the dual citizenship crisis, faces a tough battle to hold the seat against Labor’s Kristina Keneally.

The Nationals’ federal president Larry Anthony told the Saturday night celebration: “This is the reset, but not just for the National Party … but for the government”.

It remains to be seen whether the result will embolden the Nationals to further differentiate their brand over coming months.

This could in part depend on how Bennelong goes, as well as whether the opinion polls remain strongly against the government. If so, the Nationals’ vote at the next election may be best maximised by running their own race.

In an interview with Sky, Joyce acknowledged there were some issues in the Coalition that needed to be “ironed out” and “we are doing that”.

Joyce has picked up a sizeable portion of the 29% of the vote that went at the 2016 election to Tony Windsor, the former independent who held the seat previously. In the field of 17 candidates, Labor, on a vote of around 11%, has achieved only a minor swing of about 4%.

The ALP put little effort into the seat, with Bill Shorten never appearing in the campaign. Turnbull ridiculed the Labor performance, saying its vote was comfortably ahead of the informal vote.

Rebel Nationals backbencher George Christensen, whose possible defection had been a matter of speculation, confirmed to Joyce by text that he would be staying in the party.

In a social media post on Saturday, Christensen said that since the banking royal commission was announced on Thursday, he had reconsidered what could be achieved within the framework of government.

He had also had discussions with local mayors and community leaders, local LNP members and party elders, and Nationals colleagues.

“The consensus is that the Nationals need to be a stronger force within the government for both conservative values and country Australia and that people like me need to remain in the Nationals and government to ensure that happens,” he wrote.

“I am assured that, with Barnaby Joyce set to be returned to Canberra by the good people of New England today, we will have a more assertive and independently minded National Party with a reinvigorated leader at the helm.

The Conversation“That’s good news for the people of Australia and should point the government in a new direction. That’s why, despite serious earlier misgivings, I will remain completely with the Nationals and, ultimately, with the government.”

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.

Three reasons why the decisions of Joyce and Nash may be difficult to challenge



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Can decisions made by former deputy prime minister Barnaby Joyce while he was invalidly in parliament be challenged?
AAP/Mick Tsikas

Anne Twomey, University of Sydney

Now that Barnaby Joyce, Fiona Nash and three other senators have been declared invalidly elected, questions are being asked about whether close parliamentary votes still stand and decisions made by the disqualified ministers can be challenged.

As the issue has not arisen in Australia before, there is no direct judicial authority on the question. We can, however, draw some reasonable conclusions based on how the courts have dealt with analogous issues in the past.

Parliamentary votes

Over the years, quite a few MPs have been disqualified at both the Commonwealth and state levels, but no-one has ever challenged the validity of a law passed in reliance on the vote of a disqualified member.

The only Australian authority is the 1907 case of Vardon v O’Loghlin. In this case, Chief Justice Griffith and Justices Barton and Higgins stated that even though a senator was disqualified at the time of his election, “the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a senator without title”.

Justice Isaacs added that while Vardon had not been validly elected, the “validity of his public acts as a senator prior to the declaration is, of course, unaffected”.

Although neither statement directly addressed the effectiveness of his vote in the house, the case has been taken as sufficient authority to suggest that past votes will stand, even though disqualified senators or MPs participated in them.

This view is supported by the general principle that a court will not interfere in the internal proceedings of parliament. Although courts will enforce “manner and form” requirements for a special majority to pass a particular type of bill, the courts will not look behind the parliamentary record of the votes, even when those records may be inaccurate.

If, therefore, anyone challenged the validity of a law on the basis that it was not passed by a majority of qualified MPs, it is most unlikely that a court would be prepared to hear the case and strike down the law.

Ministerial decisions

Section 64 of the Constitution provides that “no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives”.

During the entirety of Joyce’s ministerial career – starting on September 18, 2013 – he was not validly a member of either house. Similarly, Nash was not validly a senator at any time during which she was assistant minister from 2013 and minister from 2015.

When each was first sworn in as a minister, and sworn in again after the July 2016 election, the three-month period would have run. But, after that, both Joyce and Nash would have been ministers invalidly.


Further reading: If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?


Does this mean that the decisions they made during this period could be challenged? There are three important factors at play.

Standing

First, a person would have to have legal standing to bring a challenge. This means they would have to have a special interest in the decision, above that of the rest of the community, which goes beyond a mere intellectual or emotional interest in the matter.

For example, if the property or financial interests of a person are affected by a decision, then they may have standing.

There is uncertainty as to whether simply being an MP is enough to gain standing to challenge government decisions. This issue was raised in the case concerning the postal survey on same-sex marriage, but the High Court did not need to resolve it because the challenge failed anyway.

So, there is doubt as to whether opposition MPs would have the standing to challenge any decisions made by Nash or Joyce in their ministerial capacities.

The source of the decision-making power

Second, the decision would have to be one made by Joyce or Nash in accordance with a power conferred upon them as ministers by statute or another legal source.

The waters have been muddied by statements concerning the fact that ministerial decisions are often approved by cabinet.

The cabinet is a policymaking body. It does not have the power to give legal effect to its decisions. This is done through other bodies or persons. A decision to enact legislation is given effect by parliament. Many other decisions concerning appointments, the compulsory acquisition of property, and the making of regulations are given effect by the governor-general through the Federal Executive Council.

It is only those decisions made directly by Joyce or Nash on the basis that they were exercising a power conferred upon them in their capacity as a minister that could be challenged.

Timing and the de facto officer doctrine

The third issue concerns timing and the possible application of the “de facto officer” doctrine.

This is a common law doctrine that protects the validity of decisions made by a person who is clothed with the authority of an office, but is later found not to have been validly appointed to it.

If that person acts under the “colour” of the office, there is public acceptance of that authority and the government holds out that person as having the authority to exercise that power, then the doctrine is likely to give a measure of protection to exercises of that power, if they were otherwise validly made.


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


The doctrine is directed at protecting those who rely on the decisions in good faith, rather than protecting the decision-maker. The policy behind it is to avoid the chaos that might ensue if decisions are invalidated due to a defect in the appointment of the decision-maker.

For example, when the governor-general of the Solomon Islands was held to have been invalidly appointed as he did not meet the required qualifications, the High Court of the Solomon Islands relied on the de facto officer doctrine to uphold his actions, including the dissolution of parliament and the appointment of ministers.

In 1938, Owen Dixon wrote that there “are questions outstanding as to the limits of this principle or the conditions controlling its operation”. That remains true today. One of those questions is whether the doctrine operates when the disqualification of the office-holder is a result of a breach of the Constitution.

In 2000, the High Court unanimously held in Bond v The Queen that a question arising under the Constitution as to the powers exercisable by an officer of the Commonwealth “cannot be resolved by ignoring the alleged want of power on some basis of colourable or ostensible authority”.

The doctrine also ceases to apply when the mantle of authority is removed by the public expression of doubt as to the validity of the office of the decision-maker.

Accordingly, the decisions made by Joyce and Nash that would be most vulnerable to challenge are those made after they were referred to the Court of Disputed Returns, due to doubts as to the validity of their election to parliament. One would expect, however, that they were sufficiently prudent not to make contentious decisions during that period.

Where does this leave us?

It is most unlikely that any challenge to a law on the basis of votes in parliament by disqualified members would succeed in the courts.

There is a greater risk that a challenge to a ministerial decision, made by a disqualified MP when he or she did not validly hold a ministerial office, could be successfully challenged. But this would depend upon the action being brought by individuals or corporations that have a sufficient interest to attract standing and whether the decision was actually made by the disqualified minister (as opposed to another body, such as the Federal Executive Council).

It would also depend on the extent to which the de facto officers doctrine applied.

The ConversationIt may be the case that no decisions fall into this category, despite the feverish speculation. We can only wait and see.

Anne Twomey, Professor of Constitutional Law, University of Sydney

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

George Brandis suggests Joyce and Nash didn’t really make their ministerial decisions


Michelle Grattan, University of Canberra

Labor says decisions made by Barnaby Joyce and Fiona Nash are open to legal challenge but Attorney-General George Brandis suggests the two former ministers were not the ones who actually made them.

Joyce and Nash were disqualified from parliament by the High Court on Friday for having been dual citizens when elected.

The opposition says at least 20 executive decisions and 47 ministerial announcements made by Joyce could be open to challenge.

These include the controversial decision to relocate the Australian Pesticides and Veterinary Medicines Authority to Armidale in his New England electorate, various grants and appointments, and any decisions under the Water Act, where he had power to determine claims for payment to water access entitlement holders.

The list comes from a paper Labor sought from the Parliamentary Library on the ministerial decision-making powers exercised by Joyce and Nash, and specific important decisions they made.

Joyce had ministerial responsibility for agriculture and water resources. Nash was minister for regional development and regional communications.

The opposition says at least eight executive decisions and 43 ministerial announcements made by Nash could be subject to challenge. These included elements of each of the regional NBN rollout, the mobile blackspots program and the rural decentralisation program, as well as grants under the Building Better Regions Fund.

Labor has as well released updated advice from senior silks Matt Albert QC and Matt Collins QC about the legal status of decisions made by the former ministers.

The Constitution allows a minister to hold office for three months while not being a member of parliament.

The legal advice says that any decision made by Joyce or Nash after three months had lapsed from their appointment as ministers was open to challenge.

“Any decisions made by Joyce and Nash, purportedly in their capacity as a minister, on and after October 20, 2016, are open to challenge.

“The likelihood of proceedings being brought to challenge such decisions is high, having regard to the significance and seniority of their relevant portfolios,” the advice says.

Brandis said the government was looking very carefully at the question of the validity of the former ministers’ decisions. But “I doubt that there are many if any decisions that would be relevant in any event”, he said on Sky.

“Most decisions that ministers make are in fact made by the cabinet on the recommendation of ministers. Appointments are made by the governor-general or the federal executive council on the recommendation of ministers. So I think you will find that there is no legal consequences here at all.”

Tony Burke, manager of opposition business, told the ABC there would be “vested interests” with an interest in challenging decisions of Joyce.

“When you’re in charge of Australia’s quarantine service, there’s importers and exporters who make or lose money depending on decisions you make.

“There’ll be a series of decisions there with vested interests now combing through, and there being a whole lot of legal doubt over those decisions on the simple basis that Barnaby Joyce didn’t do what Matt Canavan did,” Burke said.

“Matt Canavan turned out to have been legally in parliament. But at least he took the precaution to step aside so that there was no risk to there being illegitimacy to his decisions.

“Barnaby Joyce and Malcolm Turnbull decided, oh no, nothing to see here, let’s just ignore the last 25 years of how the High Court ruled on this and pretend that it’s all going to be different this time.”

The ConversationBurke said there was a reason why the government had not revealed the solicitor-general’s advice. “I don’t believe for a minute it was as strong as they were claiming,” he said.

https://www.podbean.com/media/player/g8gar-796795?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.

Joyce will be safe in New England but the High Court disrupts the government


Michelle Grattan, University of Canberra

In more than an understatement, Malcolm Turnbull opened his news conference after the High Court’s swingeing blow to the government by saying this was “clearly not the outcome we were hoping for”.

And indeed, not the outcome Turnbull had so unequivocally predicted when, in August, he told parliament that Deputy Prime Minister Barnaby Joyce “is qualified to sit in the house and the High Court will so hold”.

As the weeks have gone by the government has become less and less confident that the position of Joyce and his deputy, senator Fiona Nash, would be upheld. At the same time, the betting on the survival of the third National, Matt Canavan, firmed, as the complexities of Italian law were examined.

Joyce himself says he wasn’t surprised he was disqualified. “In my gut I thought this is the way it was going to go,” he told reporters on Friday. As things have turned out, Joyce’s gut was a better predictor than Turnbull’s barrister background.

In a not-so-subtle dig, Joyce told the ABC’s 7.30 that tactically, it would have been better to have gone to a byelection immediately when he became aware he was a New Zealand citizen by descent, but he had deferred to the solicitor-general’s advice – which played up the prospect of a court victory.

Of the seven current and ex-MPs before the court in the dual citizenship cases, only Canavan and Nick Xenophon have had their eligibility upheld. Not that Xenophon is staying around in federal politics – he made his farewells on Friday and after clearing some odds and ends he will be off to create a storm in South Australian politics.

As well as kiboshing the two Nationals, the court knocked out One Nation’s Malcolm Roberts, who is now pitching for Queensland politics; it also rejected the eligibility of the two Greens, Larissa Waters and Scott Ludlam, who’d already resigned from the Senate.

The December 2 New England byelection that Joyce will now contest is a huge distraction for the government. As it battles with the states to get its energy policy in place, and deals with other issues in coming weeks, a mini judgement day is the last thing it needs.

The government has moved to get the byelection over as quickly as possible, with writs issued immediately.

In the only good news Joyce received on Friday, Tony Windsor, the one-time independent member for New England, announced he won’t contest the byelection.

Windsor had tormented Joyce by a submission to the High Court arguing against his eligibility, and by keeping open the option of entering the race if there was a vote.

But, apart from any other considerations, he probably judges that his chances of taking the seat would be poor. Even though he is not a candidate, the Nationals expect he will be running interference in the campaign.

It is nearly unthinkable that Joyce won’t win, whomever he now faces. Labor polls poorly in the seat. A protest vote could go to the Shooters, Fishers and Farmers Party, One Nation, and independents. But recent polling, which was done assuming Windsor ran, has shown Joyce in a comfortable position.

The court decision leaves the cabinet something of a mess. A temporary patch-up has had to be done until after the byelection, with Turnbull taking Joyce’s ministerial duties – he was sworn into agriculture and water resources on Friday – and other ministers acting in Nash’s roles. This obviously means there will be some limbo in the affected portfolios.

A permanent reshuffle has to wait. When it comes the Nationals are expected to lose a frontbench position, because in a recount for Nash’s seat a Liberal is set to replace her.

After the dust settles the Nationals will also have to elect a new deputy.

With Joyce and Nash out, the Nationals’ voice will be more muted in cabinet for a time, although at least Canavan is back, returned on Friday to his resources ministry.

The Nationals have been preparing for this court outcome (if only they had been as diligent in checking their MPs’ constitutional eligibility). Joyce has been paying a noticeable amount of attention to his seat in recent weeks. On Friday night the Nationals were setting up their Tamworth campaign office, and people were appearing in Barney Army t-shirts.

Leadership arrangements were also smoothly put in place, by the Nationals’ parliamentary party and the party’s organisation. Joyce is staying overall party leader while the party’s Senate leader, Nigel Scullion, becomes the interim leader of the parliamentary party.

But, in a sign of the immediate disruption the High Court fallout is causing the government, Turnbull has delayed his trip to Israel – he was due to leave Saturday to join the commemoration of the 100-year anniversary of the Battle of Beersheba.

And late Friday, the government couldn’t say who will be acting prime minister when Turnbull undertakes the Israel trip or goes to APEC soon. While Nationals might accept that Julie Bishop would be more obvious than Scullion for that role, they were not pleased to see the Bishop name in the media. They will be wanting Turnbull to observe the niceties of proper consultation.

The opposition will use the coming weeks to cause what mischief it can. Joyce being disqualified means the government has lost its majority on the floor of the house, although Turnbull told the media “we have a majority of members in the House of Representatives, even in the absence of Barnaby Joyce”. This is, if you count in the casting vote of Speaker Tony Smith.

The government has a buffer, thanks to the crossbench and the Speaker, against any no confidence vote. But prepare for coming Labor shenanigans in parliament. It won’t try a no-confidence motion that would look bad and be lost. But it could, for example, join with crossbenchers to push for a motion for a royal commission on banking, and something on penalty rates, trying to lure Queensland National George Christensen across.

Labor is also questioning the ministerial decisions Joyce and Nash made. Labor deputy leader Tanya Plibersek said: “Every decision made by both Barnaby Joyce and Fiona Nash since October last year is under a legal cloud. Labor will now take some time to work carefully through the implications of the [High Court] decision.”

Just to complicate the situation further, there is a general anticipation of an imminent announcement of a Queensland state election, with neither side of politics confident in predicting the likely outcome but both anticipating that One Nation could hold the balance of power.

How the Liberal National Party polls in Queensland will have Canberra fallout, because it will be read as a pointer to the general mood there – and Queensland will be critical to the federal Coalition at the next election.

The ConversationAs for New England, while no-one anticipates Joyce will fail to retain the seat, the sort of result he gets will be important to how the government ends a difficult year.

https://www.podbean.com/media/player/g8gar-796795?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.

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.

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 Court knocks Barnaby Joyce out in dual citizenship case as byelection looms in New England



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The High Court declared Barnaby Joyce ineligible to sit in parliament.
AAP/Mick Tsikas

Michelle Grattan, University of Canberra

The government has been forced to a December 2 byelection and lost its majority in the lower house after the High Court declared Deputy Prime Minister and Nationals leader Barnaby Joyce ineligible to sit in parliament.

The court also struck down the eligibility of deputy Nationals leader Fiona Nash, who is set to be replaced by the next candidate on the Coalition election ticket – Liberal Hollie Hughes.

But the third Nationals MP before the court, Matt Canavan, who quit the ministry after advice he was an Italian citizen, has been ruled eligible. He will return to cabinet immediately, and was sworn in late Friday. “On the evidence before the court, one cannot be satisfied that senator Canavan was a citizen of Italy,” the court said.

Seven current and former MPs were before the court, which was judging whether they were eligible under Section 44 of the Constitution – which prohibits dual citizens standing for parliament. The court was unanimous on its decision in all the cases, with the eligibility of five rejected and two upheld.

Senate crossbencher Nick Xenophon’s eligibility has been upheld – but he is resigning from federal parliament in the next week or so to contest the South Australian election. His party, the Nick Xenophon Team, will choose his replacement. Xenophon had an unusual form of British citizenship through his father, who came from Cyprus when it was a British territory.

One Nation’s Malcolm Roberts, who had British citizenship, is out. Pauline Hanson announced Roberts would stand for the seat of Ipswich in the coming Queensland election.

Former Greens senators Scott Ludlam and Larissa Waters, who had resigned from parliament, were found to have been ineligible to stand. Ludlam was born in New Zealand, and Waters in Canada.

Malcolm Turnbull told a news conference in Canberra the decision was “not the outcome we were hoping for”.

Some of the decisions contradict the legal advice the government had – in particular about Joyce, who inherited New Zealand citizenship via his father. Turnbull told parliament in August: “The leader of the National Party, the deputy prime minister, is qualified to sit in the house and the High Court will so hold”.

Turnbull will take Joyce’s portfolio of agriculture and water resources on an interim arrangement, and was sworn in late Friday.

Joyce heard the news while he was in his electorate. He goes into the byelection virtually certain to be returned – especially after the former independent MP for the seat, Tony Windsor, announced he would not stand.

Joyce apologised for the “inconvenience” of the byelection. “I respect the verdict of the court.”

He said he was always apprehensive. “I don’t actually stand here totally surprised,” he said. “In my gut I thought this is the way it was going to go.”

The Nationals’ Senate leader, Nigel Scullion becomes the interim party leader during the byelection. But Joyce remains leader of the party.

There will be a week of parliament before the byelection, which could be difficult for the government – but it will not be under threat, because it would have crossbench support against any no-confidence motion.

Independent MP Cathy McGowan said: “I will continue to supply confidence and support to the government”.

While Labor will seek to make some mischief, Speaker Tony Smith has a casting vote if there is a tied result on votes.

Turnbull, at a very brief news conference, insisted the government still had a majority in the house (on the basis of the Speaker’s casting vote).

Opposition Leader Bill Shorten tweeted:

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Deputy Labor leader Tanya Plibersek said: “Australia now has a hung parliament with a minority government”.

“We are deeply concerned Australia is facing a period of uncertainty”, because Turnbull had kept Joyce and Nash on his frontbench. She said Labor would be looking at the decisions made by the two ministers in the preceding weeks.

The ConversationTurnbull said the government would refer Section 44 of the Constitution to the parliamentary committee on electoral matters to consider whether it should be changed – which would require a referendum.

Michelle Grattan, Professorial Fellow, University of Canberra

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.