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.

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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.

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.

No, it wasn’t a conspiracy that caused Barnaby’s problem – it was himself



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Barnaby Joyce has now renounced his New Zealand citizenship but his future is yet to be determined.
Mick Tsikas/AAP

Michelle Grattan, University of Canberra

Let’s get one point straight. The crisis around Barnaby Joyce has been caused by one simple oversight by one person. Joyce was careless in not properly checking whether he complied with the citizenship requirement of the Australian Constitution.

He was not landed into this pickle by Bill Shorten, the New Zealand Labour Party, the media, or anyone or anything else. If he had acted years ago with abundant caution – or his party had – he wouldn’t have had a problem.

And the government’s over-the-top efforts on Tuesday to find a conspiracy begs the question: does it think an MP’s alleged breach of the Constitution, if suspected, should be just ignored?

At the extreme, wouldn’t there be a risk that, in such circumstances, an MP could be open to an attempt to compromise them?

A few weeks ago the Greens’ Scott Ludlam resigned when he found he was a citizen of New Zealand, which he left as a child. His dual citizenship came to his attention when a barrister started poking around. Ludlam accepted the situation with grace.

Of course much more is at stake politically with Joyce. It’s unsurprising and entirely appropriate that the government fights for him in the High Court – although it is another matter that he is not standing aside from the ministry.

But the government’s attempt to paint this as a “treacherous” Shorten executing a dark deed involving a foreign power is desperate distraction politics. After a bizarre attack by Foreign Minister Julie Bishop on the New Zealand Labour Party, it morphed into a diplomatic own goal.

Joyce’s dual citizenship came to light after two lines of inquiry in New Zealand: questions from Fairfax Media, and a blogger, to the Department of Internal Affairs, and questions on notice from Labour MP Chris Hipkins, following his conversation with Shadow Foreign Minister Penny Wong’s chief-of-staff Marcus Ganley, who’s a Kiwi.

Bishop’s accusations and language at Tuesday’s news conference were extraordinary for a foreign minister, although they were just at the extreme end of the script used throughout the day by Malcolm Turnbull and others in the government.

“The New Zealand Labour leader, Jacinda Ardern has revealed that Bill Shorten sought to use the New Zealand parliament to undermine the Australian government,” Bishop claimed.

“Bill Shorten has sought to use a foreign political party to raise serious allegations in a foreign parliament designed to undermine confidence in the Australian government.

“This is highly unethical, at least, but more importantly, puts at risk the relationship between the Australian government and the New Zealand government,” she said.

According to the NZ minister for internal affairs, Peter Dunne, it wasn’t the Labour questions that set the ball rolling to the outing of Joyce’s NZ citizenship.

Dunne tweeted:

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But when this was put to Bishop, she said dismissively: “I don’t accept that”. That is, she rejected the word of a minister in a fraternal government.

Further, “New Zealand is facing an election. Should there be a change of government, I would find it very hard to build trust with those involved in allegations designed to undermine the government of Australia,” Bishop said.

And again: “I would find it very difficult to build trust with members of a political party that had been used by the Australian Labor Party to seek to undermine the Australian government”.

Here’s Australia’s foreign minister, in a fit of collective government pique, saying before the NZ election she’d have problems with the possible winners.

This was egregious on several fronts. It is both harmful and offensive. The Australian and New Zealand governments, of whatever complexion, should and need to be close. Bishop’s sweeping claims go well beyond what seems to have happened. And her attack on NZ Labour buys right into the electoral contest – her accusation of foreign interference in our politics could be turned back and levelled at her.

Ardern met Australian High Commissioner Peter Woolcott – soon to take up the role of Turnbull’s chief-of-staff – to express her disappointment at Bishop’s remarks, but also to stress the importance she attached to the Australian relationship.

In very measured remarks, contrasting with Bishop’s tone, Ardern told a news conference she first knew of the situation when it broke in the media on Monday.

When she saw the reference to the NZ Labour Party she’d immediately inquired and learned Hipkins had asked two questions. Hipkins shouldn’t have done so, she said, a point she’d made “absolutely clear” to him, and he’d acknowledged.

Hipkins had told her that when an ALP acquaintance had called him asking about citizenship “he had no context for who the question might relate to”.

Ardern said she would be happy to talk directly with Bishop (not that she had her phone number).

“The relationship between the New Zealand Labour Party and the Australian government is too important for politics to get in the way,” Ardern said. “Australian domestic politics is for them, not for us. We should not be involved.”

Later, Wong said her staffer had “informal discussions with New Zealand friends” about the Section 44 debate.

“At no point did he make any request to raise the issue of dual citizenship in parliament … In fact, neither I, nor my staff member, had any knowledge the question had even been asked until after the story broke.”

It was a day in which the Turnbull government looked more than a little unhinged. It caused a lot of angst across the ditch, got into an absurd barney with New Zealand Labour, and even had the New Zealand conservative government correct it.

In its attempt to throw mud at Shorten, the Turnbull government managed to do itself more harm.

The ConversationAnd at the end of it all Joyce, who has now renounced his New Zealand citizenship, still must have his future determined. It was announced that his case will come up on August 24 for a directions hearing, together with the two senators and two former senators also caught on the sticky paper of Section 44 (i).

Michelle Grattan, Professorial Fellow, University of Canberra

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

New Zealand claims Barnaby Joyce as one of its own, in new dramatic citizenship turmoil



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Barnaby Joyce has been revealed to have New Zealand citizenship.
Lukas Coch/AAP

Michelle Grattan, University of Canberra

We have it from the New Zealand Prime Minister Bill English that Barnaby Joyce is a citizen of his country. We have it from the Australian Constitution that you can’t be a federal MP if you are a dual national.

We have it from Malcolm Turnbull that “the deputy prime minister is qualified to sit in this house and the High Court will so hold”.

Work that one out.

Section 44 (i) bans from being a candidate anyone who “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”.

Joyce had been dismissive of media questions on the possibility he might be a citizen of New Zealand, where his father was born.

Then, on Thursday, Chris Seed, the New Zealand high commissioner, rang Joyce’s office with the worst of news. After Seed briefed Joyce’s chief-of-staff, Joyce instantly rang back, and the two met around 5.30.

The New Zealand Labour opposition had lodged questions on notice, which had to be answered the following week. There was also Australian media questioning of the New Zealand Department of Internal Affairs.

While the parliamentary questions didn’t name Joyce, they obviously referred to him. Chris Hipkins, MP for Rimutaka, asked whether a child born in Australia to a New Zealand father would automatically have New Zealand citizenship.

Seed said the preliminary advice from the department was that Joyce was indeed a New Zealand citizen – a position English confirmed publicly on Monday.

The Turnbull government quickly sought advice from the federal solicitor-general, Stephen Donaghue; it came back on Sunday. It is understood that the advice focused on the reason for Section 44 (i) – to prevent allegiance to another country – and canvassed tests in relation to this.

These were:

  • Was the person born overseas?

  • Was he on a list of citizens of the other country?

  • Had he ever applied for citizenship of the country?

  • Had he ever sworn any sort of oath of acquiescence to the other country?

On these measures, according to the advice, the High Court would be expected to come down in Joyce’s favour.

The advice notwithstanding, constitutional expert Anne Twomey, from Sydney University Law School, is surprised Turnbull has been so unequivocal about the decision on Joyce.

“I’m not as confident as the prime minister seems to be,” she says. She believes that Joyce “potentially has a real problem”. But it is a matter of how the court interprets Section 44 (i), she says.

It may draw a distinction between citizenship by descent and other citizenship, Twomey says. “Or it could say the purpose of the provision is to prevent dual allegiance – and if you didn’t know [you were a foreign citizen] you were not breaching the purpose.”

The High Court mightn’t relish Turnbull – his barrister background notwithstanding – telling it what it will decide. But there’ll be a lot more at stake in its judgement on Joyce than the risk of Turnbull – and the solicitor-general, for that matter – being embarrassingly wrong.

If Joyce, the Nationals leader, were found in breach and so knocked out of parliament, that would create massive turmoil not just for the minor Coalition partner but for a government with a one-seat majority.

There’d be a byelection in his seat of New England, where in 2016 Joyce held off a challenge from the former independent member, Tony Windsor.

Joyce, who is busy divesting himself of his New Zealand citizenship, would no doubt run again and possibly face Windsor. While he had a comfortable win last time, byelections are dangerous, because they are custom-made for a protest vote.

The process would run into months. The Nationals would be effectively leaderless. The government would have lost its majority in the House of Representatives. It would be all right on supply and confidence, thanks to agreements with some crossbenchers, and would still get most legislation through. But where all the crossbenchers sided with Labor it would be in trouble.

It would be in nightmare territory, with Labor having endless opportunity for disruption.

Assuming Turnbull is right that Joyce will be found in the clear, the immediate situation is still very bad for the government. It’s another distraction, and a serious one, internally and externally.

On Thursday week there is a directions hearing for four others who are before the High Court in relation to Section 44 (i) – One Nation’s Malcolm Roberts and former minister Matt Canavan, from the Nationals, as well as the two Greens, Larissa Waters and Scott Ludlam, who have already resigned.

The Joyce referral will join them. But the decision could be anytime between October and December, a very long period for uncertainty to swirl around the future of a key member of the government’s leadership team.

Turnbull tried to drag Bill Shorten in the shambles by offering to wrap into the referral any Labor MPs whose citizenship qualifications are dubious. Shorten, unsurprisingly, rebuffed him. Labor appears confident a tough vetting process means its MPs are in the clear. Nevertheless the government is throwing around names.

Labor jumped on the double standard being applied to Canavan – who quit cabinet and isn’t voting in parliament – and Joyce, who is keeping his positions and voting.

The government claims it is also confident about Canavan, while admitting the circumstances are different – not in a good way – by virtue of the fact his mother applied for his Italian citizenship, allegedly without his knowledge, and he was listed as an Italian national at the time of his election.

The realpolitik, however, is that Canavan is a senator. In the Senate, which has been hit by multiple resignations and referrals, those already politically dead and gone and the walking wounded are being accommodated so the numbers aren’t out of kilter.

And Canavan’s exit from cabinet, while inconvenient, is not a disaster, although ironically it is Joyce who is doing his former ministerial jobs of resources and northern Australia.

In the finely balanced House of Representatives the situation is precarious, and the government is certainly not going to live more dangerously than it absolutely has to.

The ConversationAnyway, the Nationals would find it intolerable if they were without their leader in cabinet for months while his fate is being decided by the court. Especially when the future of energy policy is the biggest issue before the government between now and Christmas.

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.

High Court to rule on whether Barnaby Joyce is a New Zealander



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Barnaby Joyce may be a New Zealand citizen.
AAP/Lukas Coch

Michelle Grattan, University of Canberra

The government has been rocked by advice from the New Zealand government that Deputy Prime Minister and Nationals leader Barnaby Joyce might be a citizen of that country, making him ineligible to be a federal MP.

The government is referring the case to the High Court but Malcolm Turnbull, on the basis of legal advice that Joyce’s eligibility won’t be struck down, has asked him to remain in his positions. Section 44 rules out dual citizens standing for parliament.

Joyce told the House of Representatives on Monday morning: “Last Thursday afternoon, the New Zealand High Commission contacted me to advise that, on the basis of preliminary advice from their Department of Internal Affairs which had received inquiries from the New Zealand Labour Party, they considered that I may be a citizen by descent of New Zealand.”

Joyce said he had been shocked. “Neither I, nor my parents, have ever had any reason to believe that I may be a citizen of any other country.”

Joyce was born in Tamworth in 1967 to an Australian mother. “My father, who was born in New Zealand, came to Australia in 1947 as a British subject – in fact we were all British subjects at that time,” he said.

“The concept of New Zealand and Australian citizenship was not created until 1948. Neither my parents nor I have ever applied to register me as a New Zealand citizen.” The New Zealand government had no register recognising him as a New Zealand citizen, he said.

A New Zealand government website says: “If you were born overseas and at least one of your parents is a New Zealand citizen by birth or grant, you are an NZ citizen by descent. To get yourself an NZ passport, you need to register your citizenship.”

Turnbull said the government had sought advice from the solicitor-general. “The government is satisfied that the court would not find Mr Joyce disqualified to sit in the House.

“Nonetheless, in the interest of giving the court the opportunity to clarify the application of this section the government … has decided to refer the matter to the High Court sitting as the Court of Disputed Returns.”

Joyce said that he had asked for the matter to be referred to the court. “Given the strength of the legal advice the government has received, the prime minister has asked that I remain deputy prime minister and continue my ministerial duties.”

Turnbull has written to Opposition Leader Bill Shorten to “offer you the opportunity to nominate any Labor members or senators whose circumstances may raise questions under Section 44 of the Constitution so that the parliament can also refer these matters to the High Court for its consideration.

“There are a number of cases already referred by the Senate and so it would be helpful if all relevant matters court be heard by the court at the same time,” Turnbull wrote.

Labor has not so far had any cases of actual or possible dual nationality arise in this parliament, in contrast to the Greens, the Coalition, and One Nation.

Nationals senator Matt Canavan recently resigned from cabinet, saying his mother had signed him up, without his knowledge, as an Italian citizen. He is disputing whether this is valid. His case is before the High Court. Joyce was sworn into Canavan’s ministerial duties of resources and northern Australia.

Last week the Senate referred One Nation’s Malcolm Roberts to the court to determine whether he was a dual British citizen when he nominated. Two Greens, Larissa Waters and Scott Ludlam, resigned from the Senate after they found they were dual citizens, of Canada and New Zealand respectively.

Turnbull said in his letter that “It is manifestly in the national interest that the High Court have the opportunity to clarify the limits on the operation of Section 44(i) of the Constitution.

“With around half of all Australians having a foreign-born parent, and with many foreign nations having citizenship laws which confer citizenship by descent, regardless of place of birth, the potential for many, possibly millions of Australians unknowingly having dual citizenship is considerable.”

The loss of Joyce would wipe out the government’s one-seat majority, pending a byelection. At the last election, Joyce held off a challenge in his seat of New England from former independent member Tony Windsor.

The opposition is calling for Joyce to stand aside.

The manager of opposition business, Tony Burke, said in the house: “How on earth can this government have somebody in the office of deputy prime minister when they don’t even know if he’s supposed to be in the parliament?

“This is a government reliant on a majority of one.

“What the house is doing right now is saying to the High Court that we are not actually sure if the government does have a majority of one.

“Saying to the High Court of Australia that we have been here for twelve months making laws with a government that may or may not be legitimate. With a parliament that may or may not be voting according to the constitution of this country,” Burke said.

New Zealand Prime Minister Bill English confirmed Joyce’s citizenship. “Unwittingly or not, he’s a New Zealand citizen,” he said.

“These things are almost always accidental,” English said.

Shorten has told Turnbull he has no-one he wants to refer to the High Court to clarify their status. Replying to Turnbull’s letter earlier in the day, Shorten wrote: “I acknowledge your offer to nominate other members or senators to the High Court. The Labor Party has the strictest processes in place to ensure all candidates are compliant with the Constitution prior to their nomination for election. Therefore, I politely decline your office.”

In Question Time Turnbull was unequivocal that Joyce’s position would be vindicated.

“The leader of the National Party, the deputy prime minister, is qualified to sit in this house and the High Court will so hold,” he declared.

He said the government did not refer Joyce to the court because of any doubt about his position, but rather because there was a need in the public interest for the court “to clarify the operation of this section so important to the operation of our parliament”.

Labor tried unsuccessfully to gag Joyce when he was asked a question.

The ConversationThe New Zealand government has an online tool to check whether people are NZ citizens.

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.

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.

Newspoll 53-47 to Labor, but respondent preferences better for Coalition


Adrian Beaumont, University of Melbourne

This week’s Newspoll, conducted Thursday to Sunday from a sample of 1680, gave Labor its fifth consecutive 53-47 lead. Primary votes were 37% Labor (up 1 since last fortnight’s Newspoll), 36% Coalition (up 1), 9% Greens (down 1) and 9% One Nation (down 2). This is the Coalition’s 16th consecutive Newspoll loss with Turnbull as PM.

34% were satisfied with Turnbull’s performance (up 2) and 54% were dissatisfied (down 2), for a net approval of -20, up four points. Shorten’s net approval was unchanged at -20.

The biggest political news last week was Peter Dutton’s appointment to head the new home affairs “super ministry”. Turnbull’s ratings and the Coalition’s primary vote may have improved as a result of the hard right’s approval of Dutton. Progressives detest Dutton, but people who do not follow politics are unlikely to have formed an opinion of Dutton yet. Turnbull has already lost politically engaged progressives.

Essential this week found strong approval of the new super ministry, but concern that Dutton was responsible for the various security services.

The Greens have lost one point, but can consider themselves fortunate not to have lost more after a shocking five days in which Scott Ludlam and Larissa Waters resigned from the Senate after finding they had unwittingly violated Section 44 of the Constitution.

Resources minister Matt Canavan today became the latest victim of the dual citizenship fiasco. He has resigned from Cabinet, but not yet from the Senate, after finding he has Italian citizenship. If the courts rule him out, Canavan will be replaced by Joanna Lindgren, the No. 6 on the Queensland LNP ticket.

While Labor has comfortably led in all Newspolls since the beginning of the year, Newspoll uses the previous election method to distribute preferences. Respondent allocated polling from ReachTEL shows a reduction in Labor’s lead. It is likely that most hard right voters who have deserted the Coalition will return after preferences.

At the 2016 election, One Nation preferences split nearly 50-50 between the major parties. As some of the hard right has defected to One Nation, its preferences will probably be more favourable to the Coalition at the next election, provided that Turnbull is still PM.

This week’s additional Newspoll questions concerned Tony Abbott. By 58-23, voters thought Turnbull had the best leadership credentials compared with Abbott. Coalition voters backed Turnbull by 69-23, with Abbott ahead 44-34 only with One Nation voters.

48% thought Abbott should remain a backbencher and shut up, 23% thought he should be given a senior Cabinet position, and 17% thought Abbott should remain a backbencher but not shut up.

ReachTEL: 51-49 to Labor

A Sky News ReachTEL poll, conducted 19 July from a sample presumably about 2300, gave Labor a narrow 51-49 lead, a one point gain for the Coalition since the previous Sky News ReachTEL, in late June.

The primary vote figures included 9% “undecided”, but ReachTEL asks these people which way they are leaning. However, the preferences of these leaners were not included. If these 9% undecided are excluded, primary votes are 37% Labor, 36% Coalition, 12% One Nation and 9% Greens. Applying 2016 preference flows would give a 53-47 Labor lead. The Coalition is benefiting from respondent allocated preferences, hence the narrower headline Labor lead.

Turnbull led Shorten by 54.5-45.5 as preferred PM, up from 54-46. Better PM polling without a forced choice favours incumbents, and a forced choice usually gives opposition leaders a better result.

In other findings, 75% favoured renewable energy over coal. 56% nominated power and gas prices as the biggest cost of living expenses, with other expenses at 16% or below. 47% supported a Constitutional change to create an indigenous advisory body, with 29% opposed.

Essential: 53-47 to Labor

This week’s Essential had the Coalition regaining the point they lost a fortnight ago, for a 53-47 Labor lead. Primary votes were 38% Coalition, 37% Labor, 10% Greens, 7% One Nation and 4% Nick Xenophon Team; the Coalition has gained two points since last fortnight. Essential used a two-week sample of 1800; additional questions are based on one week’s sample.

56% approved of the new national security ministry, and just 18% disapproved. 45% thought it would strengthen Australia’s national security, 28% thought it would make little difference and just 8% thought our national security would be weakened. 45% were concerned that Dutton would have responsibility for the various security services, and 35% were not concerned.

By 64-10, voters supported a clean energy target, requiring a set percentage of energy to be generated from clean sources. By 54-15, voters supported an emissions intensity scheme, where pollution over a certain level is taxed.

40% said they were connected to the National Broadband Network either at home or work. Of those who had an NBN connection, 48% thought it was better than their previous Internet service, and 22% thought it was worse.

Tasmanian ReachTEL: 43.0% Liberal, 32.9% Labor, 13.4% Greens

A Taxmanian ReachTEL poll, conducted 21 July from a sample of 2820, gave the Liberals 43.0% (down 8.2 points since the 2014 election), Labor 32.9% (up 5.6) and the Greens 13.4% (down 0.4). The next Tasmanian election is likely to be held in March 2018.

Tasmania uses the Hare Clark system with five 5-member electorates. In 2014 the Liberals won 15 of the 25 seats, to 7 for Labor and 3 for the Greens. The Liberals won 4 seats in Braddon, 2 in Denison and 3 in Bass, Franklin and Lyons. On current polling, the Liberals are likely to lose a seat in both Braddon and Franklin, and the final seat in Lyons will decide whether the Liberals cling to a majority.

After adjustment for bias towards the Greens and against Labor, Kevin Bonham interprets this poll as 43.0% Liberal, 36.7% Labor and 10.7% Greens. If the adjusted figures are replicated in Lyons, there would be a three-way race between the Liberals, Greens and Labor for the final seat.

The ConversationOverall, Bonham thinks the most likely outcome using this poll is 12 Liberals, 10 Labor, 3 Greens, but his Tasmanian poll aggregate has the Liberals ahead in Lyons, and thus more likely to win a majority.

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

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

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.