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.

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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.

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.

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.

No legal doubt over decisions Joyce and Nash take: Brandis



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George Brandis said the government would ask the court to deal with the citizenship issue urgently.
AAP/Mick Tsikas

Michelle Grattan, University of Canberra

Attorney-General George Brandis has insisted there will be no legal doubt over decisions taken by Deputy Prime Minister Barnaby Joyce and Regional Development Minister Fiona Nash while the High Court determines their eligibility to sit in parliament.

This comes as crossbencher Nick Xenophon has announced he will refer himself to the High Court after being advised he has British overseas citizenship through his father Theodoros Xenophou, who came from Cyprus, a British colony at the time. Xenophon will continue to vote in the Senate.

Meanwhile, cabinet minister Arthur Sinodinos has suggested that perhaps the Constitution’s citizenship section will eventually need to be addressed.

“Down the track after we have sorted this all out and the High Court have had a chance to look at this, maybe we need to go back to some of the reports of the parliament itself about the status of parts of Section 44 in the light of what happened in our society,” he told the ABC.

Joyce and Nash are under pressure from the crossbenchers and the opposition to stand down from the ministry while their status is determined. A third National whose parliamentary eligibility is before the court, Matt Canavan, resigned from the ministry.

All three were dual citizens when elected, and so could be ruled out under Section 44 of the Constitution, which prohibits dual nationals being eligible for parliament. The government, however, has said repeatedly it is confident the court judgment will be in their favour.

Brandis pointed to Section 64 of the Constitution, which allows a person to be a minister for three months without being in the parliament.

“I do not think there is a problem and I don’t think there’s any doubt,” he said.

Professor of constitutional law at Sydney University, Anne Twomey, in an article for The Conversation, wrote that the ministers’ decisions could come into legal doubt from when “they admit to being a dual national and refer to the High Court the question of their qualification to sit in the parliament, especially if the invalidity to hold parliamentary office exceeds three months.

“For this reason, it would be prudent for those ministers who are currently under a cloud concerning their lawful occupation of office to cease to make decisions which are contentious or might give rise to legal challenges with significant consequences,” Twomey wrote.

Brandis said the government would ask the court to deal with the citizenship issue urgently. “I think realistically that may be in the first fortnight of October,” he told Sky. The court now has the citizenship circumstances of seven current and former MPs to consider. The government has confirmed they are all paying their own legal costs.

The Nick Xenophon Team made it clear at the weekend that its House of Representatives member, Rebekha Sharkie, would not vote against the government on matters of confidence or supply. This followed Sharkie being reported in Fairfax Media saying she had decided she would no longer support the government on these. She said she was “quite frustrated with the prime minister” for retaining the ministers in cabinet.

In the weekend statement, Sharkie continued to call for Joyce to stand aside as minister pending the High Court decision. But the statement said: “NXT has made it clear that until the High Court decision, they expect to support the government on matters of confidence and supply”.

Xenophon said on Saturday: “Overnight I have received advice from the United Kingdom Home Office that they consider I am a British Overseas Citizen (a historical category of citizenship formerly known as a Citizen of the United Kingdom and Colonies).

“The UK Home Office has advised this on the basis that my father, Theo, was born in Cyprus when it was under British occupation, and migrated to Australia in 1951 – over 66 years ago.

“The great irony here is that my father left Cyprus in order to escape British Colonial rule.

“At that time he appears to have travelled to Australia on British Colonial travel documents.

“I was born in Adelaide, South Australia … in 1959.

“It was obviously unknown to me or my family that I was deemed to be a Colonial UK Citizen by virtue of the 1948 British Nationality Act.

“Cyprus became independent of its colonial power on August 16, 1960. At the moment of independence, every Cypriot lost their colonial UK citizenship status.

“I would have lost that colonial status as well if my father was living in Cyprus at the time or in any other country in the world except, according to the then British Nationality Act, these nine countries: Canada, Ceylon (now Sri Lanka), India, New Zealand, Pakistan, Union of South Africa, Southern Rhodesia (now Zimbabwe), Newfoundland (then a separate dominion, now part of Canada) and Australia …

“The oral advice from the UK Home Office last night is that this whole scenario is a quote ‘rare peculiarity’.

“Citizens of the UK and Colonies – CUKCs – without the right of abode in the UK, were reclassified as British Overseas Citizens on the 1st of January, 1983, after British nationality legislation was modernised.

“The UK Home Office now believes I am a British Overseas Citizen.

“I have made inquiries of the Home Office and researched what it means to be a British Overseas Citizen.

The Conversation“The literature on this and oral advice from the UK Home Office is that this form of citizenship is quote ‘useless’, and indeed in many cases it confers fewer rights than an Australian citizen travelling on an Australian passport to the United Kingdom would have,” Xenophon said.

https://www.podbean.com/media/player/8ppnw-6fcd65?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.

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



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It’d be better for ministers like Barnaby Joyce to have any potentially contentious decisions made by an acting minister until their citizenship issues are resolved.
AAP/Mick Tsikas

Anne Twomey, University of Sydney

What would happen if the High Court found that ministers Barnaby Joyce, Fiona Nash and Matthew Canavan had not been validly elected at the last federal election in July 2016?

In the case of the senators (Nash and Canavan), the High Court, sitting as the Court of Disputed Returns, would most likely order a special recount of the votes, as it did in relation to senators Bob Day and Rod Culleton, with the seat then most likely going to the next person on the Coalition ticket.

This may disrupt the balance between the National Party and the Liberal Party in the Senate, as those most likely to replace the two National Party senators would be from the Liberal Party.

Joyce’s seat, being in the lower house, would most likely go to a byelection, as previously occurred in the cases of Jackie Kelly and Phil Cleary. Like Kelly and Cleary, Joyce could stand for his seat at the byelection, as he has now renounced his New Zealand citizenship.

A bigger question arises, however, as to the validity of decisions that they made as ministers since the last election. If they were not validly elected in July 2016, then Section 64 of the Constitution becomes relevant. It says:

… 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.

That three months ran out a long time ago. So, for a considerable time they would have been exercising powers conferred upon ministers by statute, without actually being ministers. Were those decisions valid? Could they be challenged?

This brings into play the “de-facto officer” doctrine. This is a common law doctrine that protects people who rely on acts done in the apparent execution of their office by an officer who appears to be “clothed with official authority”, even though they may not validly hold that office.

It is not aimed at protecting those who invalidly exercise power, but rather those who rely in good faith on the apparent authority of those who publicly exercise power. The doctrine is also relied on to give certainty concerning the validity of acts of persons whose appointment or election may later be challenged.

The public policy behind the doctrine is to avoid the chaos that would ensue if decisions of public officials were automatically rendered invalid because of a later discovered defect in their election or appointment. For example, the decisions of a Western Australian magistrate were upheld, even though they were taken after she had reached the compulsory age for retirement.

The application of the doctrine, however, is uncertain. It does not necessarily apply to all decisions of an invalidly appointed officer, and therefore is likely to lead to litigation if decisions are contentious.

Its application has also been doubted in relation to matters that concern a breach of the Constitution. For example, High Court Justice Michael Kirby observed in a 2006 case about the constitutional validity of acting judges that:

It is difficult to reconcile the [de facto officer] doctrine with the fundamental role of the federal Constitution as the ultimate source of other laws. Constitutional rulings can occasionally be unsettling, at least for a period. However, this is inherent in the arrangements of a nation that lives by the rule of law and accords a special status to the federal Constitution as its fundamental law.

Moreover, the doctrine ceases to protect the actions of the purported official at the point when they lose the cloak of authority, such as when the validity of their appointment is contested, or their lack of qualification to hold office is “notorious”.

It is quite possible that point arises when, in the case of a Commonwealth minister, they admit to being a dual national and refer to the High Court the question of their qualification to sit in the parliament, especially if the invalidity to hold parliamentary office exceeds three months.

For this reason, it would be prudent for those ministers who are currently under a cloud concerning their lawful occupation of office to cease to make decisions which are contentious or might give rise to legal challenges with significant consequences.

The ConversationInstead, such actions, if they need to be taken before the question of the status of these ministers is resolved by the High Court, could be taken by acting ministers to ensure their validity and avoid the financial and social costs of further litigation and uncertainty.

Anne Twomey, Professor of Constitutional Law, University of Sydney

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

Grattan on Friday: Malcolm Turnbull’s government has finally defied fiction



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With the eligibility of the Nationals’ leadership under question, Malcolm Turnbull has had a nightmarish week.
Mick Tsikas/AAP

Michelle Grattan, University of Canberra

In a week belonging more appropriately to Shaun Micallef comedy than parliamentary reality, it’s arguable Pauline Hanson’s burqa stunt wasn’t the most extraordinary thing that happened in Canberra.

Hanson has extreme beliefs and therefore it mightn’t be so surprising – though it is appalling – that she’s willing to use the parliament as a stage for extremely bad behaviour.

In donning the burqa purchased on eBay and entering the Senate chamber, she was as attention-seeking as the streaker who races naked across the football ground, though her motive was darker. Let’s call out her action, but not play into her cynical pursuit of mega publicity.

Entirely beyond imagination was the week being bookended by the Nationals leader, Barnaby Joyce, and his deputy, senator Fiona Nash, standing up in their respective houses to announce they were dual citizens (he a Kiwi, she a Brit).

Joyce and Nash are remaining in cabinet – unlike their Nationals colleague Matt Canavan – and in their leadership roles while the High Court determines the fate of all three, among the batch of cases involving dual citizenship. At issue is their eligibility under the Constitution’s Section 44, which bans dual nationals standing for parliament.

Australian Conservatives’ senator Cory Bernardi, formerly a Liberal, suggested on Thursday that parliament should be prorogued – that is, suspended – until citizenship questions and any subsequent byelections are sorted.

But suspending parliament would disrupt the normal course of government business, delaying legislation and, crucially in political terms, signalling panic.

Joyce continues to participate in parliamentary votes, so the government retains its one-seat majority in the House of Representatives. By its own lights, what credible story could it advance to put parliament on hold? It would look the ultimate in desperation.

There is no doubt the Joyce affair presented the government with a crisis. It then became a matter of management and this was seriously bungled.

Once it took the decision to keep Joyce in cabinet and in the deputy prime ministership, the government was always destined to be vulnerable to a ferocious Labor attack.

But its shock and awe response, with the absurd notion of a “treacherous” Bill Shorten and a Labor conspiracy across the Tasman with New Zealand Labour, was deluded from the start.

First, it was a try-on. Both Labor here and Labour in NZ were somewhat apologetic for their roles in the affair, understandable at least for NZ Labour which is facing an election. But what exactly was the wrongdoing by Labor here? Is there anything inherently “treacherous” about a Labor staffer using contacts to check in NZ who is eligible to be a citizen of that country?

Second the tactic, played in stereo, opened the government to ridicule. In particular, her exaggerated performance raised questions about the judgement of the usually astute Foreign Minister Julie Bishop, just days after a laudatory article had asked why she wasn’t mentioned more often as a possible future leader.

Although the circumstances are different, the hyperbolic accusation of “treachery” carries a remote echo from Turnbull’s book The Spy Catcher Trial, about the British government’s attempt to stop the Australian publication of a book by a former UK intelligence officer.

Turnbull, whose successful appearance in the high profile case gave an early boost to his reputation, wrote that then UK opposition leader Neil Kinnock – whom he pressed to “humiliate” the UK attorney-general in the British parliament – “was vigorously attacked in the House of Commons for ‘treacherous’ conduct”, in discussing the case with him.

If Turnbull were prone to bad dreams, his nightmares for the next few months would go something like this.

The government would lose the High Court case challenging the postal ballot on same-sex marriage, or win it and the ballot would return a “no” result.

It would lose Joyce’s citizenship case – and Nash and Canavan would be knocked out as well.

It would then lose the byelection in Joyce’s New England seat, with goodness knows what consequences in the resulting hung parliament.

Oh, and there would be a bruising battle within the government over energy policy, resulting in a much-criticised, wishy-washy outcome that gave no certainty for future investment.

But Turnbull is an optimist, or so he always tells us, and he’ll be looking at how things could all work out for the best in the best of worlds.

He’s predicted in the most unequivocal terms that Joyce will be vindicated in the High Court.

If things went well, the postal vote would sail through the legal challenge, and return a yes vote by a convincing margin with a substantial turnout, making the ballot beyond reasonable reproach, whatever the gripes of the losers. That would lead to parliament changing the law to deliver same-sex marriage by Christmas.

Energy policy would be hard fought within the government’s ranks, but the resulting compromise would be one that was seen as credible and welcomed by business.

The optimistic scenario – we might as well include in it at least one 50-50 Newspoll – would leave the government with a hope of regrouping, after an end-of-year ministerial reshuffle.

Which scenario, or what mixture of them, will come to pass is unforeseeable. But given how life goes for this government, some might regard the prospects for anything like the optimistic one as being in near-miracle territory.

Meanwhile, things are presently so grim they recall vividly some of the blackest times of the Gillard government.

Monday’s Joyce bombshell drove the same-sex marriage battle somewhat into the background, while both sides gear up for intense campaigns and questions remain about the postal ballot.

One of these is, I think, particularly interesting – that is, the argument that the result won’t be a true one because young people especially will be under-represented. The young are, collectively, more in favour of same-sex marriage than older people but less likely to be on the roll, to have a fixed address, or to be familiar with the post.

While this is a problem, I will be a bit contrarian. I think this both demeans the young and lets them off too lightly. They are supposed to enrol for elections anyway; if they have a view on the marriage issue there is both the incentive and opportunity to do so for this ballot.

A week is left – the rolls close August 24. The mobility challenge applies for general elections – it’s a hassle, but not insurmountable.

As for not using the post – well, that is like saying older people weren’t brought up with computers. Sorry, but one has to move with the times – even if, in this case, it’s moving backwards.

Young people are highly savvy with technology – I just don’t accept they can’t come to grips with posting a letter. If in doubt, they can always ask their grandmothers.

The ConversationThe nation is considering an important social issue – young Australians should get on the roll and vote.

Michelle Grattan, Professorial Fellow, University of Canberra

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

New shock rocks government: Nationals’ deputy Fiona Nash a dual British citizen



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Fiona Nash made a statement to the Senate just before it rose on Thursday night for a fornight’s break.
Lukas Coch/AAP

Michelle Grattan, University of Canberra

The government has been hit with another bombshell in the citizenship crisis, with the deputy leader of the Nationals, Fiona Nash, found to have dual British nationality.

Nash made a statement to the Senate just before it rose on Thursday night for a fornight’s break. Her case will be referred to the High Court when parliament resumes on September 4.

This means that both the Nationals’ leader, Barnaby Joyce, and his deputy will be before the High Court to determine whether they are ineligible to sit under Section 44 (i) of the Constitution, as will the Nationals’ former cabinet minister Matt Canavan. The section bans people with dual citizenship being elected.

Coming as soon as parliament met on Monday and just as it adjourned on Thursday, the Joyce and Nash statements respectively bookended a disastrous week for the Turnbull government.

Like Joyce and unlike Canavan, Nash, who is minister for regional development, will stay in cabinet, and will also remain deputy leader, while the court considers her position.

Nash told the Senate that after Joyce’s statement on his dual New Zealand citizenship, she sought advice from the UK Home Office. By Monday evening she was told a caseworker there believed she was a British citizen by descent through her Scottish-born father.

Her mother was born in Australia and was an Australian citizen; her father was born in Scotland in 1927. Her father died nine years ago, and her mother five years ago.

“I was born in Sydney in 1965. My parents divorced when I was eight and my mother raised me. I had very little contact with my father throughout his life,” Nash said.

“Growing up, my parents always told me that I was not a dual citizen. My understanding since early childhood was that in order to be a dual British citizen, I would need to apply for it.”

She said an internet search revealed a host of websites saying that having a Scottish-born father allowed a person to apply for citizenship, while mentioning nothing about automatic citizenship by descent.

She said the government had sought legal advice from the UK about her situation. This had been received on Thursday, and had been considered by a committee of cabinet late Thursday. Advice had been received from the solicitor-general shortly before she spoke.

“I have just met with the prime minister and am taking this opportunity to make the Senate aware at the earliest possible opportunity of the position,” Nash said.

She said that on the basis of the solicitor-general’s advice, Malcolm Turnbull “has indicated to me that he sees no reason for me to stand aside from my portfolio responsibilities.”

Labor greeted Nash’s stated timeframe with some scepticism.

Senator Katy Gallagher, manager of opposition business in the Senate, said as Nash had admitted, she’d “known since Monday that she was a dual citizen, yet waited until one minute before the Senate rose for a two-week break to inform the parliament. This is simply not good enough.”

The ConversationShe said Turnbull needed to explain why he was holding Joyce and now Nash to a lesser standard than Canavan, and not requiring them to stand down.

https://www.podbean.com/media/player/hu9ay-6f0803?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.