The New Zealand election was held on 23 September, with final results released on 7 October. The conservative National won 56 of the 120 seats, Labour 46, the anti-immigrant populist NZ First 9, the Greens 8 and the right-wing ACT 1. As a result, the right held 57 seats and the left 54, with NZ First’s 9 seats required for a majority (61 seats) for either the left or right.
26 days after the election, and 12 days after final results were published, NZ First leader Winston Peters today announced that his party would form a coalition government with Labour. With NZ First backing, the left bloc has 63 seats, a clear majority in the NZ Parliament. This outcome ends National’s nine successive years in power, in which Labour had utterly dismal results in the three elections from 2008-14.
Bankers’ SA Galaxy: 31% Liberal, 30% SA Best, 26% Labor
The Australian reported today that a SA Galaxy poll, conducted for the Australian Bankers Association 10-12 October from a sample of 806, gave the Liberals 31% of the primary vote, SA Best (Nick Xenophon’s SA party) 30% and Labor 26%. The next SA election will be held in mid-March 2018.
This poll is not a media-commissioned poll. The ABA is an anti-Labor lobby group that wants to stop the proposed SA state bank tax. Polls such as these are prone to selective release; it is unlikely the ABA would have released a poll with Labor doing well.
The last media-commissioned SA Galaxy poll, in late June, had the Liberals leading Labor 34-28 on primary votes with SA Best on 21%, and a 50-50 tie between the major parties after preferences. If this ABA Galaxy poll is accurate, it implies that SA Best has surged 9 points since Xenophon announced his candidacy for the Liberal-held seat of Hartley.
In the better Premier question, Xenophon had 41%, with both incumbent Premier Jay Weatherill and opposition leader Steven Marshall at 21%.
If these primary votes were replicated at an election, SA Best would win many seats on Labor preferences, and could be the largest party in SA’s lower house. Such an outcome would break the two party duopoly for the first time in an Australian Parliament since the early 20th century.
However, there are still five months to go before the election. Even if this poll is accurate, it could represent SA Best’s high point. Both major parties will attack Xenophon during the election campaign, in an attempt to undermine his popularity. Labor will use Xenophon’s controversial Senate decisions against him.
Although Labor is third in this poll, they are not out of the running. If Labor can take a few percent from SA Best, they would be more likely to benefit on preferences than the Liberals. If Labor retains office at the next election, it will be a fifth consecutive term for them.
After 14 years in office, Queensland Labor was demolished at the 2012 Queensland election, and NSW Labor had a similar fate after 16 years at the 2011 NSW election. A SA Labor victory after 16 years would be a remarkable achievement.
During the dim, distant past of New Zealand’s recent election campaign, soon-to-be-former prime minister Bill English grumbled that the “stardust” that was falling thick and fast on new Labour leader Jacinda Ardern would settle.
Well, it just has – in such quantities that some time next week Ardern will be sworn in as the 40th – and second youngest – prime minister of Aotearoa/New Zealand.
From stardust to PM
It is quite some denouement to an extraordinary period in New Zealand’s political history. A little under three months ago, Ardern was the deputy leader of a Labour Party that was polling in minor party territory. From deputy leader of a struggling opposition party to prime minister in under three months – that’s stardust on an industrial scale.
For Winston Peters, too, who is likely to become the next deputy prime minister (for the second time), it is a spectacular return to form. Three times Peters has been the veto player in the government formation process. On each occasion he has kept everyone guessing, including, it appears, members of his own caucus.
So, here’s what we know. The new government will comprise a formal coalition between Labour and NZF (the first executive coalition we’ve had on this side of the ditch since 2005). As a minority administration, it will govern with support on confidence and supply from the Greens.
NZF will hold four cabinet positions and an additional slot outside of cabinet. This means that just over half of its caucus will be in the political executive. The Greens, too, will – for the first time in their history – have ministerial portfolios: three outside of Cabinet and one parliamentary under-secretary.
But there’s plenty we don’t yet know. We’re not sure who will occupy which portfolios (although we’re fairly sure Peters will be the deputy prime minister). Neither will we know the nature of the policy detail (if any) in the executive agreement and its associated confidence and supply document until next week.
Few rules to form a government
The last time NZF was in formal coalition – ironically, with the National Party in 1996 – there was an awful lot of devil in that detail. Since then, New Zealand governments have moved away from policy-prescriptive agreements to arrangements that emphasise procedural certainty and clarity. However, the attention that has clearly been paid to matters of policy in the negotiations over the last three weeks suggests we may see a swing back to a greater emphasis on policy substance.
Once the dust – wherever it happens to have come from – has settled on today’s momentous events, a number of features of this election will merit careful reflection.
In particular, questions will certainly be asked of the way in which New Zealand governments are formed. Almost alone amongst mature parliamentary democracies, there are few or no formal rules governing the process. Apart from the constitutional requirement that the government is formed by the party or parties able to demonstrate to the governor-general that they command the confidence of parliament, there is little formal guidance and few restrictions on the process.
That goes a long way to explaining why it has taken a few days short of four weeks to form this government and why, for the first time under the mixed member proportional (MMP) electoral system in New Zealand, the incoming government will not be led by the party that won the largest number of seats in the election. All of this is perfectly constitutional, but disconcerting for some New Zealanders nonetheless.
Expect big, boisterous opposition
What next? National will be furious. Expect some talk over the next couple of days of the “moral authority” the party had to govern, given that it won a clear plurality of parliamentary seats. While the constitution recognises no such thing, National certainly had political precedence on its side.
National will ride that wave of righteous anger – internally at least, if not outwardly for public consumption – for some time to come. Hell hath no fury and so forth. And if the Labour/NZF/Green governing bloc starts fraying at the edges, then National’s claim to “moral authority” will start to look a little less imaginary.
But this might not have been a bad election for National to lose. The party can now move on from the Key years, start generating fresh ideas and begin bringing through some of its younger talent as it remakes itself as a conservative force. Moreover, National will comprise a big, boisterous opposition. The parliamentary conventions and rules governing the allocation of questions in the house, speaking time and membership on select committee positions mean that it will be able to make life very challenging for the new administration.
Human face of capitalism
And what of the new government? For Labour, NZF and Greens – which between them represent 50.5% of those who cast party votes in the election (against National’s 44.4%) – this is the chance to effect change following nine years of orthodox neoliberal government from National.
Peters’ claim when announcing his decision that he wanted to be part of a government that would restore ‘capitalism with a human face’ falls far short of a clarion call for the destruction of neoliberalism. It does, however, signal a significant change in policy direction. For those New Zealanders on the wrong side of the ledger when it comes to our dire performance in health, housing, productivity, wage and salary growth, poverty and so on, that change can’t come soon enough.
This, then, will be a legacy government, one that represents a generational shift in thinking away from the priorities of the baby boomers towards the concerns of the millennials. The irony that such a thing has been brought about by a man on the other side of 70 won’t be lost on anyone. “Let’s do this” was Ardern’s campaign slogan. Now we get to see how New Zealand’s political odd couple go.
The only realistic choices for a coalition are a centre-right-leaning National-NZF coalition or a centre-left-leaning Labour-Green-NZF coalition.
Why is a National-Labour grand coalition seen as unthinkable? Despite 20 years of a mixed member proportional (MMP) electoral system, New Zealand’s politicians still struggle with compromise and co-operation.
A nascent multiparty democracy
Straight after the election, the Green Party ruled out a coalition with the centre-right National Party, purely on ideological grounds.
Contrast this with Germany, which held general elections a day after New Zealand. Angela Merkel’s centre-right Christian Democratic Union (CDU) immediately entered coalition talks with the left-leaning Green Party and the right-liberal Free Democratic Party (FDP).
New Zealand’s reluctance to form pragmatic coalitions can be explained by its democratic history. Until 1996, New Zealand had a simple first-past-the-post system, with one vote for a candidate in a specific electorate. Democracies using this tend to have de facto two-party systems, often entrenching ideological partisanship on the left and right.
New Zealand’s 1996 election marked a new epoch of electoral democracy. Through a referendum in 1993, New Zealanders chose the MMP system. Two votes are cast: one for a party and one for an electorate candidate. Seats in parliament are assigned by total percentage of the party vote, not by how many electorates a party wins.
However, electorate wins are important for minor parties that finish under the 5% party vote threshold.
Unlike first-past-the-post, proportional representation systems like MMP usually produce multi-partyism. The presence of more parties in parliament necessitates coalition-building.
In the New Zealand context, no party has won an absolute majority in any of the seven elections since MMP was introduced.
New Zealand’s first-past-the-post hangover
However, New Zealand seems to have a first-past-the-post hangover. In a recent online poll, the prospect of a National-Labour grand coalition was considered “absurd” by 61% of respondents. The same poll observed a clear ideological division between National and the smaller Green Party.
Internationally, most countries with a longer history of proportional representation have tended to be less polarised than New Zealand when it comes to coalition-building.
While numerous hypothetical coalition marriages are perceived as absurd in New Zealand, few coalition arrangements are out of the question in Germany. One notable exception is the CDU working with anti-establishment right-wing party Alternative für Deutschland, which will enter the Bundestag for the first time this year.
The most likely outcome in Germany’s 2017 elections seems to be a “Jamaica coalition” option, involving Merkel’s CDU (which collected the most votes) with the Greens and the FDP.
Tackling New Zealand’s democratic division
In the New Zealand context, the Jamaica coalition would be akin to National forming a coalition with the Green and ACT parties. However, the Green Party unequivocally ruled out entering a governing coalition with National.
While remaining truthful to a party’s ideological convictions is commendable, it can also keep the party out of power and unable to achieve its policy goals.
Unlike the Green Party, the Māori Party (which lost its place in parliament in this election) previously opted for a more pragmatic approach. It partnered with National in three successive governments. This “deal with the devil” enabled the party to secure concessions such as the Whānau Ora health initiative.
Ultimately, the MMP system is only as good as the underpinning democratic culture. New Zealand’s democratic culture seems to struggle with compromise and co-operation. Such limited coalition arrangements give too much power to a smaller party such as NZF, making it the unmandated “kingmaker” in coalition negotiations.
One answer to New Zealand’s lacking political co-operation – beyond more superficial changes like lowering the 5% threshold – could lie in reducing its overwhelming reliance on elections as the main mechanism of political participation.
After a dramatic election campaign that looked promising for the centre-left, New Zealand’s voters have opted instead for conservatism.
Special votes are yet to be counted, and coalition negotiations yet to commence. But New Zealanders have opened the way for the centre-right National Party’s fourth consecutive term in office. National’s provisional election night result of 46% is only slightly down from its 47% in 2014.
Incumbent English to start coalition talks
The incumbent prime minister, Bill English, was jubilant on election night. His speech was as close as he could get to a victory speech. English said:
We will begin discussions with New Zealand First in finding common ground and most importantly forming the kind of government that will allow New Zealand to get on with the success.
NZ First won 7.5% of the votes and now holds the balance of power.
Two of the minor parties that had formerly supported the National-led government on confidence and supply, the United Future and Maori parties, failed to gain any seats. And the ACT Party, which supports National, was returned with one electorate seat only.
The leader of the largest opposition party, Labour’s Jacinda Ardern, did not concede defeat on election night, but her chances of forming a government with the centrist NZ First Party and the Greens are much slimmer. The combined seats of those three parties give a majority of only one.
Once special votes are counted, the final official tallies may take a seat away from National and see the Greens gain one, but that will not substantially alter the outcome.
Ardern lifts Labour from doldrums
Nonetheless, Ardern can claim a victory of sorts, as she has steered her party out of the doldrums, from 25% in the 2014 election to 35.8% this time.
The “Jacinda effect” was the dominant theme of the election campaign, drawing considerable international attention.
She was chosen to lead the Labour Party just seven weeks before the election, when Labour was declining in opinion polls. She drew an enthusiastic following and dramatically boosted her party’s polling, but not enough to claim victory on the night.
National’s attacks on Labour’s fiscal and taxation plans seem to have worked, even though they resorted to misrepresentation. A clever reframing of Labour’s slogan “Let’s do this!” to “Let’s tax this!” seems to have done the trick, dissuading enough potential swing voters.
On the day before polling day, rolling averages of public opinion polls showed National was likely to lead the next government, at around 44.5%. Labour had forged ahead of National in some earlier opinion polls, but was down to 37.7%.
So, the election night result was better for National than polls had been predicting. Polling companies will be asking why their pre-electoral surveys tended to favour Labour, compared with election results.
New Zealanders play it safe
New Zealanders have gone for the safe and conservative option. English is a practising Catholic and father of six. His leadership style is uncharismatic, but steady. He lacks the personal popularity and charm of his predecessor, John Key, who handed over the reins of power to English in December 2016.
English will take this election result as a mandate for his party’s programme. It is not clear yet, however, what policy or office-holding concessions he will have to make to Winston Peters, the veteran leader of NZ First. If English has to sack some of his own party colleagues from the cabinet in order to accommodate NZ First, it is bound to cause internal resentment.
Labour’s rise has been partly at the expense of the Greens, who have fallen from 10.7% in 2014 to 5.9% this time – although special votes will probably give the Greens a boost. The combined Labour–Green vote of 41.7% is well short of National’s 46%.
Although the National Party, after nine years in office, was vulnerable to attacks over problems in housing, health, education and the environment, this has not sufficed to cause a significant swing for change.
Centre of NZ politics shifts left
Instead of precipitating party-political fragmentation, this election has shifted back toward two-party politics. Both the Greens and NZ First have declined in support. The total National-plus-Labour party vote of 81.8% is the highest it has been under the proportional representation system in place since 1996.
Since 2008, the National-led government avoided austerity policies, and gradually (almost imperceptibly) shuffled to the left, dealing reluctantly with issues that were normally on Labour’s territory. The centre of New Zealand politics has shifted leftwards, with a greater acceptance of the role of the state. The free-market fundamentalism of the radical neoliberal years of 1984–96 is now on the fringes.
Nonetheless, inequality and poverty are persistent problems, and New Zealanders are well aware of this. Labour has been unable to take advantage of these significant social issues and to convince enough voters to back their messages about hope and change.
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 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.
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.
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.
And 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).
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.
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.
Anyway, 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.
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 New Zealand government has an online tool to check whether people are NZ citizens.
An international team that drilled almost a kilometre deep into New Zealand’s Alpine Fault, which is expected to rupture in a major earthquake in the next decades, has found extremely hot temperatures and high fluid pressures.
Our findings, published today in Nature, describe these surprising underground conditions. They have broad implications for understanding what happens in the buildup to a major earthquake, and may represent the discovery of a new type of geothermal energy resource.
Seismic forces building up
The Alpine Fault is one of the world’s major plate boundaries and New Zealand’s most hazardous earthquake-generating fault. It runs for 650 kilometres along the spine of New Zealand’s South Island and we know that it ruptures on average every 300 years, producing an earthquake of about magnitude 8.
The last time the Alpine Fault did this was in 1717, when it shunted land horizontally by eight metres and uplifted the mountains a couple of metres. It is expected to rupture in a major earthquake in the next few decades and, even though this may not happen in the next 30 years or even 100 years, we know that the fault is at the end of its seismic cycle.
Other projects around the world have drilled into major faults, but usually just after a major earthquake. The Deep Fault Drilling Project, which involved more than 100 scientists from 12 countries, gave us an opportunity to take a close look at a fault as it builds up to its next rupture. It is the first time this has ever been done on a major fault that is due to fail in coming decades.
Hot water at depth
We drilled two holes and during our second attempt made it to 893 metres deep. As we drilled deeper, the temperature increased rapidly, at a rate of about 15 degrees Celsius per 100 metres in depth. This is much higher than the normal rate of about 3°C per 100m in depth. At a depth of 630 metres, the water at the bottom of the drill hole was hot enough to boil, if it had been allowed to rise to the surface. The high pressures at depth stop it from boiling.
The hottest boreholes on Earth are mostly found in volcanic regions. We discovered a geothermal gradient – a measure of how fast temperature increases with depth – that is similar to the hottest geothermal energy boreholes drilled into volcanoes of the central North Island; but there are no volcanoes near the Alpine Fault.
How does it get so hot
There are two processes we think explain the extreme underground conditions at our drill site. An earthquake on the Alpine Fault has two geological effects: mountains are pushed higher and the shaking breaks up rocks.
During an earthquake and over time, the fractured rocks come down in landslides and rivers carry them to the sea. This limits how high the mountains can get. This process has operated for millions of years, with the height of the mountains staying about the same. Eventually, hot rocks from great depth (about 30 kilometres deep, at 550°C) were transported to the surface quickly enough (on geological time scales) that they did not have time to fully cool. Heat is transported from depth by the rock movement.
The other process that helps explain our findings is the rock fracturing, which allows rain water and snow melt to percolate downwards into the mountains so fast that it can move heat towards the valley, where water wells up and discharges. The flow needs to be fast enough so that the heat is not lost along the way, just as a water pipe in your home moves heat from a hot water cylinder to your bath before having time to cool. Water flowing through the rock concentrates heat and raises fluid pressure beneath the valleys.
The hot, high-pressure water beneath the valleys is mostly invisible at the surface, because it mixes with shallow, cold groundwater that flows to a depth of about 50 metres at our drill site. However, most of the valleys in the region where we drilled have a few warm springs that hint at this deeper source of hot water.
Better modelling of future hazards
The unexpected results of our research are important beyond New Zealand. Other faults around the world that we know are similar to the Alpine Fault may also have extreme conditions that have never been investigated.
Perhaps most significantly, we can now describe and estimate conditions on a geological fault that will rupture in an earthquake. This will help us to develop better computer models of earthquake rupture. It may also help us to explain how some types of geology (for example certain types of gold mineralisation) have formed as a result of similar conditions in ancient earthquakes.
The extreme underground conditions we discovered may result in substantial economic benefits for New Zealand by providing a sustainable and clean geothermal energy resource that could be used by industry and local communities. We expect that similar hot geothermal conditions exist in other nearby valleys, and maybe in some other places in the world that are geologically similar to western New Zealand.
More drilling and measurements are needed to establish the scale of this local resource, its possible uses, and if it is safe to develop.