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.

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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.

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.

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



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

Graeme Orr, The University of Queensland

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

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

What happens now?

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

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

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

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

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

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

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

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

What will the MPs argue?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The law is an unnecessary mess

All this is a law professor’s picnic.

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

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

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

Graeme Orr, Professor of Law, The University of Queensland

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

Grattan on Friday: If High Court disqualifies Canavan, Joyce will be scratching for cabinet replacement



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Legal experts are unsure what the High Court may decide on Matt Canavan.
Lukas Coch/AAP

Michelle Grattan, University of Canberra

The Senate, bordering on the farcical all year, has finally descended into burlesque, with the tale of the bright young cabinet minister whose mum made him a son of her parents’ old country.

Before the strange case of the Nationals’ Matthew Canavan burst into public view, the Senate had already lost four of its number, under various parts of the Constitution’s Section 44, including the Greens’ two co-deputies within a week.

And then there’s been the media chase after One Nation’s Malcolm Roberts, in pursuit of documents to back his assertion he didn’t hold British citizenship when he nominated for the Senate.

Canavan’s story of how he was signed up for Italian citizenship – unknown to him, he says – by his Australian-born mother of Italian heritage, is as bizarre as they come.

It’s anyone’s guess whether the High Court will find he’s in breach of Section 44, which rules out dual citizens standing for parliament.

There are differences here with the circumstances of the two Greens, who were born overseas and hadn’t quashed their other citizenship, making their ineligibility clearer cut. Neither chose to dispute the situation.

Legal experts are unsure what the High Court may conclude on Canavan. There are also claims and counter-claims of what one is required, or not required, to do to become Italian.

So, it is not surprising the government has decided to fight for Canavan, who has resigned as a minister while his parliamentary status is determined.

For the Nationals, the stakes are particularly high and complicated.

If Canavan were found ineligible to have been elected, there’d be a countback, with his replacement being Joanna Lindgren, a former senator who lost in 2016. Lindgren is a grand-niece of the late Neville Bonner, the first Indigenous person elected to federal parliament.

A Liberal when she was a senator, Lindgren would likely find herself in the Nationals’ partyroom.

Where she sat would not be her decision but that of the Queensland Liberal National Party. The two parties are merged in that state, though they’re sharp-elbowed bedfellows, who break into their separate tribes once in Canberra. It is understood the LNP would not allow the loss of Canavan to disrupt the present balance of numbers coming out of Queensland.

Until the court case is decided – by year’s end on the optimistic assessment – Nationals leader Barnaby Joyce is acting in Canavan’s resources and northern Australia portfolio.

This will overload Joyce, who already looks under strain, this week making injudicious comments about the alleged theft of water by irrigators. Even if Canavan survives, his immediate absence from cabinet is a blow to Joyce, because he provides policy heft.

If the case goes against Canavan, Joyce would face a dilemma in who to elevate to cabinet.

The most obvious choice, on seniority and experience, would be the only National in the outer ministry: Small Business Minister Michael McCormack. But McCormack is from New South Wales. The Nationals would be desperate to keep up their representation from Queensland, a vital state for them, and the Coalition generally, at the election.

Queenslander Keith Pitt is an assistant minister, but his critics say he’s been difficult rather than supportive in that role. Then you get to backbenchers such as senator Barry O’Sullivan, based in Toowoomba, and David Littleproud, from the regional seat of Maranoa.

Littleproud is spoken of as a man with a future, but is a newcomer. There are wildly opposite views on O’Sullivan, a one-time detective and later businessman, whose performances with Senate committee witnesses can resemble the tougher side of police interrogation. His critics think he should be bumped from the Senate ticket at the next opportunity; his admirers believe he could be cabinet material.

The High Court decision on Canavan will at least provide clarity on a more obscure aspect of the dual citizenship ban.

Inevitably, however, the slew of actual or potential victims of Section 44 has led to calls for constitutional change.

There are arguments for and against the dual citizenship prohibition but convenience should not be included. Notwithstanding the peculiar Canavan situation, surely aspiring politicians should be able to ascertain if they have a foreign citizenship.

On the question of substance, some argue that in a multicultural community there should not be a requirement to relinquish citizenship of another country. There is the counter argument – which I think is more compelling – that the single allegiance is a reasonable condition to impose on those responsible for making national decisions.

Dual citizenship could throw up perceived conflicts of interest – for example, for trade or foreign ministers.

Two other parts of the wide-ranging Section 44 claiming victims this year relate to having a direct or indirect pecuniary interest in an agreement with the Commonwealth, designed to prevent corruption and conflicts of interest, and being “under sentence, or subject to be sentenced” for an offence carrying a year or more imprisonment.

The eligibility of a House of Representatives Nationals MP, David Gillespie, an assistant minister, is being challenged in the High Court by Labor on the ground of having an indirect pecuniary interest, because of a post office located within a shopping centre owned by a company in which he is a shareholder.

In 1977 Malcolm Fraser won a change to Section 15 of the Constitution to ensure a casual Senate vacancy is filled by a member of the same party. This followed shenanigans by a couple of conservative state governments in filling vacancies in the Whitlam government’s time.

The ConversationThat change was simple and demonstrably the right thing to do. In contrast, an attempt to alter the dual citizenship ban – and indeed any other qualification rule in Section 44 – would be more contested. That, and today’s generally negative electoral mood, would likely doom any referendum.

https://www.podbean.com/media/player/axx2w-6d8662?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.

Nationals’ Matt Canavan quits as resources minister in latest citizenship blow



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Matt Canavan told a news conference he had been informed he is an Italian citizen.
Sonia Kohlbacher/AAP

Michelle Grattan, University of Canberra

Queensland LNP senator Matt Canavan has resigned as the minister for resources and northern Australia after being told by the Italian embassy that he is an Italian citizen.

But unlike two Greens senators who immediately quit parliament after discovering their dual citizenship, he is not resigning from the Senate but waiting for the High Court to make a judgment about his status.

Canavan told a news conference called late on Tuesday he had become aware “that according to the Italian government, I am a citizen of Italy”.

But Attorney-General George Brandis said it was the federal government’s preliminary view that Canavan was not in breach of Section 44 of the Constitution – which bans dual citizens standing for parliament – because the registration of Italian citizenship was obtained without his knowledge or consent.

In the latest – and most bizarre yet – twist in the citizenship imbroglio, Canavan, 36, who was born in Queensland, said that in 2006 his mother, born in Australia of Italian parents, lodged documents with the Italian consulate in Brisbane to become an Italian citizen.

“In doing so it would appear that she made an application for me to become an Italian citizen as well. I was 25-years-old at the time.”

While he knew his mother had become an Italian citizen, “I had no knowledge that I, myself, had become an Italian citizen – nor had I requested to become an Italian citizen”.

He said that after Scott Ludlam and Larissa Waters resigned over their dual citizenship his mother on Tuesday evening a week ago raised with him the possibility that he was an Italian citizen.

“I have since then taken steps to check my citizenship status with the Italian authorities and that has confirmed that I was registered as an Italian citizen in January 2007.

“The Italian authorities have confirmed that the application for Italian citizenship was not signed by me. To my knowledge, until this week, I have not received any correspondence from the Italian authorities about my citizenship status, and they have not been able to provide any such records.” He has never been to Italy.

Canavan said that while he didn’t intend to resign from the Senate, given the uncertainty around his status he would stand aside until the matter was resolved and resign as minister.

Brandis, appearing with Canavan at a joint news conference at which they did not take questions, said the government had taken advice from the solicitor-general and was in the process of taking advice from experts in Italian citizenship law.

“It is the government’s preliminary view that, because the registration was obtained without senator Canavan’s knowledge or consent, that he is not in breach of Section 44 of the Constitution.

“Nevertheless, in view of the legal uncertainty concerning the matter, when the Senate convenes on Tuesday week, the government will move to refer the matter for determination by the High Court,” Brandis said.

Malcolm Turnbull said Deputy Prime Minister Barnaby Joyce would be acting resources and northern Australia minister until Canavan’s status was resolved.

Waters, who quit parliament a week ago after finding she was a citizen of Canada, which she left as a baby, tweeted:

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The ConversationLudlam resigned after finding he was a citizen of New Zealand, which he left as a child.

Michelle Grattan, Professorial Fellow, University of Canberra

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