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.”
She 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.
Senators were shocked when Hanson – who has called for a ban on Muslim immigration – appeared in the chamber shrouded in the voluminous black garment. She removed it as she rose to ask Brandis whether he would work to ban the burqa, citing foiled and actual terrorist incidents. “There has been a large majority of Australians [who] wish to see the banning of the burqa,” she said.
“Senator Hanson, no, we will not be banning the burqa,” Brandis said.
He said he was not going to pretend to ignore her stunt – and warned of the damage such behaviour could do.
“I would caution you and counsel you, senator Hanson, with respect, to be very, very careful of the offence you may do to the religious sensibilities of other Australians.
“We have about half-a-million Australians in this country of the Islamic faith, and the vast majority of them are law-abiding, good Australians. Senator Hanson, it is absolutely consistent being a good, law-abiding Australian and being a strict-adherent Muslim.”
He said the advice of each director-general of security and each commissioner of the Australian Federal Police with whom he had worked was “that it is vital for their intelligence and law enforcement work that they work co-operatively with the Muslim community.
“To ridicule that community, to drive it into a corner, to mock its religious garments is an appalling thing to do, and I would ask you to reflect on what you have done.”
Hanson then asked whether the government would “ban the burqa in this house … as a security risk” and “also, the fact is the people of Australia have the right to see the face of a person that they elect to this parliament”.
Senate President Stephen Parry said this came within the purview of parliament’s presiding officers, not the attorney-general.
“The Speaker and I have made arrangements that anyone who enters these premises with their face covered by whatever means is clearly identified prior to entering the building.” He said he had ascertained when she entered who she was.
Shadow Attorney-General Mark Dreyfus tweeted praise for Brandis:
Later Hanson moved a motion calling on “the government to ban full face coverings in public places on the grounds of social cohesion, the need to identify people seeking community support and for public safety”. It was defeated on the voices.
“Muslims determine the electoral outcomes in up to 15 lower house seats,” she told the Senate in her speech on the motion.
“The Muslim vote will continue to increase in importance because of the high birth rates in Australian Muslim communities. The number of Muslims in Australia doubled in the decade from 2006 to 2016 through immigration and high numbers of children born to Muslim families.
“If we do not draw a line in the sand against immigration from Islamic countries the influence of Muslims in this country will continue to grow and Australia will continue down the path of Islamisation.”
She told 2GB that just outside the Senate chamber she had passed Greens senator Peter Whish-Wilson. “He actually put out his hand to shake my hand. Now I shook it. He has never done that to me as Pauline Hanson. He did it to shake hands at a person completely covered up. It was a tokenism that he was shaking the hand of Islam.”
Crossbencher Jacqui Lambie said Hanson had diminished the chamber and was dividing the nation.
Anne Aly, a member of the House of Representatives, said Hanson had made a mockery of the parliament and her behaviour needed to be called out.
Crossbench senator Nick Xenophon said her action was offensive, “demeaning to people of other faiths”.
“I wouldn’t even call this a stunt, this was just toxic,” Xenophon said.
The High Court has today rejected a claim that the Australian government can only exercise its powers outside Australia for purposes that would be legal under the law of the relevant foreign country.
This means the Australian government had and has the power to establish and maintain its offshore immigration detention facility in Papua New Guinea, despite detention of asylum seekers there violating PNG law.
Background to the decision
The case commenced in May 2016. The initial application was a class action seeking relief on international, constitutional, administrative and civil law grounds. The court later permitted the plaintiff to file an amended application on more limited grounds.
The sole current plaintiff is an Iranian man, taken into Australian jurisdiction while on board an asylum-seeker vessel in July 2013. He was transported to Christmas Island, detained, and categorised as an “unlawful non-citizen”. In August 2013 the plaintiff was transferred to the offshore immigration detention facility on Manus Island.
The plaintiff claims to be a refugee but has not participated in the assessment process in PNG. He does not want to be settled there as a refugee due to fear of reprisals after giving eyewitness testimony at the trial of those convicted for the killing of Reza Barati. He has not been officially detained since around May 2016, but feels effectively detained due to the hostile environment outside the grounds of the detention centre.
The case decided today responded to the decision of the PNG Supreme Court in the Namah case. That court found that Australia’s detention of asylum seekers on Manus Island violated PNG law.
Unlike in Australia, PNG has constitutional human rights protections. These forbid the deprivation of personal liberty in most cases where a person has not committed a crime.
PNG announced the detention centre would close. Its prime minister, Peter O’Neill, asked Australia to make other arrangements for all asylum seekers still on Manus Island. No such arrangement has yet been made for the plaintiff in this case. He cannot be forcibly returned to Iran, as Iran refuses to accept involuntary returns.
The court was asked to determine whether the Australian government has power under the Constitution to do the things it has done to the plaintiff (and many others).
The Namah decision prompted most of the questions put to the court. They tested whether Australia could validly make and continue its arrangements for offshore processing and detention of asylum seekers on Manus Island, in light of the Supreme Court decision that those arrangements violate constitutional rights protections in PNG.
At the hearing in May 2017, Chief Justice Susan Kiefel asked the plaintiff’s barrister how the Namah decision could bear on the court’s interpretation of the Australian government’s powers under the Migration Act. Those powers are defined by the act and must be interpreted according to the Australian Constitution.
The plaintiff argued the Constitution should be read to imply a limitation on governmental power. Specifically:
That the power is to be used for a legal purpose, meaning a purpose legal where it is exercised, where it has effect.
The PNG Supreme Court found it was illegal for Australia and PNG to bring in and detain asylum seekers on Manus Island. The plaintiff therefore argued that Australia was exercising its powers for an illegal purpose.
The plaintiff’s barrister, Tom Molomby, continued:
… it is somewhat internally contradictory to regard the Australian Constitution as establishing a rule of law for our nation, yet capable of giving power to committing acts in other countries which are contrary to the law of that nation.
The court was also asked to consider whether Australia’s statutory powers to do things necessary for regional processing of asylum seekers in PNG depend on whether those things are legal under PNG law.
The agreements being beyond power in Papua New Guinea, they were also beyond power in Australia. There is no power to make an agreement with a party that does not itself have power to make the agreement. There can be no power to perform an impossibility.
The High Court’s reasons
The full bench of the court decided unanimously to reject the plaintiff’s application. The judgment noted that the plaintiff was not able to cite any authority in prior case law or the text or structure of the Constitution for the arguments made.
On this basis, the court concluded that:
… there should be no doubt that neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to the domestic law of another country.
The court further decided the plaintiff had misunderstood the significance of the Namah decision in the context of this application. According to the court, this decision said nothing about the PNG government’s capacity to enter into an arrangement with the Australian government to establish or maintain the detention centre.
The PNG Supreme Court decision found that the bringing in, detention and treatment of asylum seekers on Manus Island violated constitutional rights protections in PNG. But it did not mean the PNG government acted beyond power in agreeing its arrangement with Australia.
The High Court rejected the plaintiff’s claim that the Australian government’s statutory power, under the Migration Act, depended on whether relevant actions were legal under PNG law. The court relied on an earlier decision that related to offshore immigration detention in Nauru.
According to the court in that case:
The lawfulness or unlawfulness of executive government action under Australian law or under the law of a foreign country conversely does not determine whether or not that action falls within the scope of the statutory capacity or authority conferred by the section.
The bigger picture
This judgment is one in a series that demonstrates the lack of human rights protections in Australian law. It again reveals the striking breadth of the government’s power to deal with asylum seekers and refugees in ways that directly contravene international law.
However, cracks continue to widen in Australia’s punitive system of mandatory offshore detention for asylum seekers who travel by boat. The agreement Australia had with the US to transfer refugees there from Manus Island remains in doubt.
The lack of interest in the people at the heart of the dilemma was starkly revealed in the leaked transcript of the now-infamous Donald Trump-Malcolm Turnbull phone call.
Earlier this week, Liberal MP Russell Broadbent broke ranks with the government, calling for Australia to take responsibility for detained refugees who do not find resettlement in the US. Broadbent spoke out against the prospect of indefinite detention for people who have not committed any crime.
After today’s decision, the responsibility to bring Australian law and practice into line with international legal obligations remains squarely with the government. The High Court has not found justification to intervene.
This piece is republished with permission from Perils of Populism, the 57th edition of Griffith Review. Articles are a little longer than most published on The Conversation, presenting an in-depth analysis of the rise of populism across the world.
“I know it makes you sick to think of that word fairness,” Arthur C. Brooks, president of the American Enterprise Institute, told the Conservative Political Action Conference in March 2013. But he went on to tell the heads of Washington’s most influential right-wing think-tanks, who were still shocked by Barack Obama’s continuing appeal, that Americans “universally believe it’s right to help the vulnerable”.
If you want to win, start fighting for people! Lead with vulnerable people. Lead with fairness … telling stories matters. By telling stories we can soften people.
New Yorker investigative journalist Jane Mayer paraphrased Brooks’ message in her magisterial book Dark Money. If the 1% wanted to win control of America, they needed to rebrand themselves as champions of the other 99%.
Donald Trump may not have been the 1%’s preferred candidate – his ego, ignorance and lack of discipline were well known – but he embodied the message. In the words of the Hannah Arendt scholar Roger Berkowitz, Trump:
… appeals to the need for constant distraction, destruction and entertainment.
It is tempting to think that this appeal, and its authoritarian consequences, is innate – a default setting of human societies across history and geography. But the swift counter-reaction to Trump at home, and subsequent elections in Europe, challenge this presumption.
Nonetheless, there is a long list of authoritarian leaders across the globe ready to deride the rule of law, circumvent checks and balances, undermine institutions, cultivate ignorance and encourage fear.
As Mayer painstakingly demonstrates, making self-interest seem normal and a commitment to fairness an elite aberration has been a long-term project.
Upending this commitment – expressed most simply in President Franklin D. Roosevelt’s four freedoms (of speech and religion, from want and fear) that were ultimately embodied in national and global institutions created at the end of the second world war – is not something that has happened by chance. It has been the result of a deliberate, well-funded, long-term strategy that has touched us all, whether we are aware of it or not.
As Mayer writes:
During the 1970s, a handful of the nation’s wealthiest corporate captains felt overtaxed and over-regulated and decided to fight back. Disenchanted with the direction of modern America, they launched an ambitious, privately financed war of ideas to radically change the country. They didn’t want to merely win elections; they wanted to change how Americans thought.
These well-lubricated ideas quickly spread through the world due to American global dominance.
It didn’t take long before institutions were accused of failing, experts gained the prefix “so-called”, and “elites” ceased to be the mega rich or those born with silver spoons, but were redefined as educated people who questioned the self-interest orthodoxy.
The globe was being groomed for a profoundly different settlement than the one that grew out of the conflagration of war, one that ignored complexity, challenged the rule of law, bred oligarchs, and undermined fairness.
Millions of words have been written in an attempt to make sense of the recent global political disruptions that are conveniently grouped under the banner of “populism”.
Although newspaper sales are at their lowest since 1945, the hunger for news, information and analysis, and the expectation that it can be found, remains. Explanations are sought in personal experience, in nostalgia, or by slicing and dicing the data from opinion polls and voting patterns.
Professor Pippa Norris of Harvard University calculates that the populist vote (both left and right) in Europe has doubled since the 1960s to reach double digits.
Pauline Hanson’s One Nation has demonstrated with remarkable effectiveness a broader global trend: the ability of a relatively small voting bloc to catalyse a response from political parties that do not share their same extreme values.
Old class-based accounts are no longer sufficient to explain political behaviour, as was sharply demonstrated in the recent UK and French elections. The emerging consensus among political scientists is that cultural factors provide a better predictor of electoral behaviour – particularly education, age, gender, religiosity and attitudes to diversity.
These values can find expression on the left and the right. But they tend to appeal mostly to an older cohort who feel they have lost power and influence, whose worlds have been upended by economic and social change. But, to put it crudely, their days are numbered.
The “war of ideas” has encouraged mistrust of experts and cynicism about institutions, undermined faith in a shared humanity irrespective of ethnicity or religion, and discouraged questioning of the neoliberal economic orthodoxy.
Meanwhile, the quiet post-materialist revolution that started in the 1970s has produced generations of people who are more open-minded, tolerant, trusting and accepting of diversity. The numbers suggest they are on the ascendancy.
It is not really surprising that education – rather than income, gender or class – is the strongest marker of populist appeal.
This is not simply because you learn stuff at school, college or university, but because education provides the tools for dealing with complexity, for weighing and evaluating arguments, for seeking and testing information, learning from history and those who went before.
It also embodies a social contract, valuing expertise, teasing out right and wrong, tolerating difference and learning respect.
The populist public sphere is a degraded, distracted place where might is right and simplicity and “common sense” the answer to complex, multifaceted questions; where little is learnt from history, and respect is in short supply.
do not pre-emptively obey but be calm, patriotic and courageous.
In the “war of ideas” over the past few decades, incalculable amounts of money have been spent to undermine these hard-won values and undermine both institutions and checks and balances that, while not perfect, have produced unprecedented opportunities.
As those who turn up in large numbers to reclaim public spaces after terrorist attacks show, and those who demonstrate to demand equality illustrate, the appeal of authoritarianism is not necessarily innate, but is always ready to be challenged.
You can read other essays from Griffith Review’s latest edition here.
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).
Claims that North Korea could fire nuclear weapons at the continental US present a serious threat to global security. But its hostile activities don’t end there. North Korea has also become an aggressive cyber power, regularly using cyber attacks to advance its interests.
Last month, a threat intelligence firm, Recorded Future, reported that North Korea may have been using New Zealand’s internet networks as proxies to launch cyber attacks worldwide. The New Zealand government’s Communications Security Bureau is assessing the veracity of these claims.
The report suggests that North Korea may have both a physical and a virtual presence in New Zealand. It raised the possibility of a network of “patriot hackers” using New Zealand cyber networks to pursue the aims of the North Korean regime.
North Korea’s history of cyber attacks
Cyber attacks have become a wide-ranging tool in the arsenal of authoritarian governments to coerce and intimidate foreign governments, to subvert democratic processes, and to impose costs on their adversaries.
In North Korea’s case, this pattern of activity stretches back many years. North Korea is estimated to have an army of 6,000 hackers, engaging in malicious cyber activity regularly.
In March 2013, hackers linked to North Korea attacked South Korean banks and media agencies, causing widespread disruption. In November 2014, cyber attacks against Sony Pictures followed the release of the film The Interview, which caricatured and mocked the North Korean leader.
In 2016, a Bangladeshi bank became the victim of North Korean hackers. Reports said that US$81 million were lost through compromised financial transactions.
Most recently, the WannaCry ransomware attack, which affected computers in more than 150 countries, has been linked to the Lazarus group of hackers, which has links to the North Korean regime. This suggests North Korea is now using state-sponsored hackers to help raise revenue for a country starved of access to international markets and funding.
Cyber attacks further threat to nuclear security
Analysis of North Korea’s activities often misses the connections between cyber and nuclear security. North Korea’s nuclear program has itself become a victim of cyber attacks.
A report in the New York Times in March this year revealed that the Obama administration ordered a campaign of cyber subversion aimed at North Korea’s nuclear and missile programs. It mirrors the now infamous Stuxnet attacks directed against Iran in 2010.
In the absence of progress on North Korean disarmament, delaying its ability to pursue nuclear weapon programs through cyber attacks has become a feature of US strategy. It’s a strategy that may yield short-term results, but presents significant escalatory dangers.
Cyber attacks pose increasingly serious risks to classified nuclear information, the security of nuclear facilities, and the integrity of the components that nuclear arms and missile technologies rely on.
Last year, the UK government was warned that its trident nuclear submarine program was vulnerable to cyber intrusions. The think-tank report Hacking UK Trident: A Growing Threat argued that a cyber attack directed against the submarines could:
… neutralise operations, lead to loss of life, defeat or perhaps even the catastrophic exchange of nuclear warheads (directly or indirectly).
Another concerning aspect of the cyber-nuclear nexus is that hacking could facilitate the proliferation of nuclear materials and technology to other aggressive states and non-state actors.
Reining in North Korea
The growing connections between nuclear and cyber security are changing the strategic balance between nuclear powers in subtle and undetermined ways. Approaches to dealing with the North Korean regime must treat these issues as related.
So what can be done about North Korea’s aggressive use of the internet? Unfortunately, just as with its nuclear program, there few good options. Sanctions imposed on the regime for its cyber activity, such as those following the Sony hack, have proved ineffective at changing the regime’s behaviour.
China and Russia may have a role to play in persuading Kim Jong-un to “play nicely” in cyberspace, but both countries also have a long history of malicious cyber operations.
There are examples where states have given up destructive weapons programs. These include Colonel Gaddafi’s regime in Libya and the more recent Iran deal. However, the difficulty of verifying whether offensive cyber programs have been dismantled presents a major obstacle.
Cyber armies operating from a virtual realm can easily be hidden. Given that punishing the North Korean regime for its behaviour has not yielded results, it may be time to start thinking about a range of positive inducements to bring the country back into the international community, including offering diplomatic talks without precondition.
Rewarding North Korea for its errant behaviour may be unpalatable, but the combined danger of its nuclear and cyber capabilities would appear to warrant a significant shift in strategy.
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 Conversation fact-checks claims made on Q&A, broadcast Mondays on the ABC at 9.35pm. Thank you to everyone who sent us quotes for checking via Twitter using hashtags #FactCheck and #QandA, on Facebook or by email.
Q&A AUDIENCE MEMBER: Hi. Renewable energy is more carbon-efficient, and now cheaper, than coal and other fossil fuels …
MATT CANAVAN: Thanks, James. Look, I don’t accept that renewables are, at the moment, cheaper than coal.
– Excerpt from a question posed by Q&A audience member James Newbold to then-Resources Minister Senator Matt Canavan on Q&A, July 17, 2017.
One of the biggest debates underway in Australia (and around the world) is about electricity, and how it should be generated. One of the major pressure points is prices.
During an episode of Q&A, audience member James Newbold said renewable energy is “now cheaper than coal and other fossil fuels”. Senator Matt Canavan (then-Resources Minister) disagreed, saying: “I don’t accept that renewables are, at the moment, cheaper than coal.”
The Conversation contacted Matt Canavan’s spokesperson for sources to support his statement but did not hear back before deadline. Nonetheless, we can test his statement against publicly available data.
What do the data show?
Based on the electricity generated now by old coal-fired power stations with sunk costs (meaning money that has already been spent and cannot be recovered), Matt Canavan was right to say: “I don’t accept that renewables are, at the moment, cheaper than coal.”
In 2017, the marginal cost of generating power from an already existing coal station is less than $40/MWh, while wind power is $60-70/MWh (explained below). So why do peoplesay renewables are now cheaper than coal?
Well, they’re often talking about what would be the cheaper option if old coal-fired power stations were replaced today – in other words, the new-build price.
Making the distinction between the cost of existing energy generation, and the cost of new-build energy generation in this debate is very important. Comparing the two is like comparing apples and oranges.
Current prices are based on existing installations, while new-build prices compare the costs of different technologies if their operating lives started today. This matters because Australia’s existing coal-fired power stations are ageing and will need to be replaced.
Comparing new-build prices is more complicated than comparing current costs, as I’ll discuss later in this FactCheck.
How do we measure the cost of electrical power?
Let’s cover the basic terminology first.
Electrical energy is measured in kilowatt-hours – the units generally used for metering and charging residential electricity use. One kilowatt-hour represents the amount of energy a device that draws one kilowatt of power (like a household heater, for example) would use in one hour.
A megawatt-hour is 1,000 times larger, and it’s what we typically use to measure large electricity loads or generators. So when we’re comparing the cost of electrical energy generated by different sources, we’ll be talking about Australian dollars per megawatt-hour ($/MWh).
Comparing prices for different sources of electricity
There are a few things we need to take into account when we’re calculating the cost of electricity created by different technologies.
First, we need to factor in how much it costs to establish the source in the first place – whether that’s a coal-fired power station, a wind farm or a hydro-power plant. Then we need to factor in how much it costs to operate, fuel and maintain that facility over its lifetime.
These factors and the cost of capital (like the interest rate) are commonly combined into a metric called the “levelised cost of electricity” (or the LCOE). This provides a measure of the total cost in current dollars per unit of electrical energy generated ($/MWh) over the lifetime of the facility.
We also need to know the time frame in question. A coal-fired power station that’s nearing the end of its operating life may have recovered its original capital investment. So the marginal cost of coal-fired electricity may be low, compared to the levelised cost of a new wind farm that’s yet to recoup its initial capital cost.
Using the levelised costs of electricity created by different technologies does always not provide a perfect comparison. Comparing such different technologies will never be comparing apples with apples. But it’s the best measure we’ve got for a simple “plug-and-play” replacement of a single generating source.
A similar price was struck in March 2016 when the Australian Capital Territory government conducted its second “wind auction”. The government uses wind auctions to buy contracts for future energy supplies. The lowest price in the 2016 auction yielded around $60/MWh in current prices. This figure is based on a flat rate of $77/MWh for 20 years and assuming around 3% inflation, which is the upper end of Australia’s inflation rate target of 2-3%.
Combining the total price range for that auction with this inflation range gives around $60-$70/MWh in current prices, with wind farms currently operating in that adjusted range.
So, based on the marginal cost of energy generated by existing coal-fired power stations with sunk costs, Canavan is correct in saying that renewables are not “at the moment, cheaper than coal”.
However, the story is different if we are talking about new-build electricity prices. And this is often where conversations and debates become confused.
Why new-build electricity prices matter
Coal-fired power stations in Australia have operating lives of around 50 years. As can be seen from the table below, nine of Australia’s 12 biggest operating coal-fired power stations are more than 30 years old.
In preparation for the retirement of those older coal-fired stations, policymakers, energy companies and other investors are debating whether to replace them with new coal-fired power stations, or other types of energy generation. This is where the comparison of new-build costs comes into play.
FactChecks rely on data from events that have already occurred. So we can’t say with factual certainty whether or not renewables would be cheaper than coal as a new-build energy source, because no coal-fired power stations have been built recently.
But we do have recent prices for the cheapest form of new-build renewable energy, which is newly-installed wind power.
And we do have recent levelised price projections for the cheapest new-build fossil fuel energy, which is supercritical coal power.
These projections for new supercritical coal power are higher than the recent prices for newly-installed wind power (outlined earlier in the FactCheck) at around $60-70/MWh in current prices over the 20-year contract period (which is similar to a levelised cost).
So, if we look at recent wind power prices and recent price projections for new supercritical coal power, it’s reasonable to say that – as things stand today – wind power would be the cheaper new-build source of electricity.
There are important additional factors that need to be taken into account when considering the costs of new-build coal-fired electricity and new-build renewable electricity as we look further into the future. Three of the main considerations are:
upgrades to the energy grid (including energy storage) to balance the use of intermittent renewables, especially once renewable energy exceeds around 50% of all energy supply (this would increase the price of renewables)
improvements in technology (this is expected to reduce the price of renewables more so than coal).
It is possible to make educated assumptions about how these factors would affect prices in the future. But I won’t include those projections in this FactCheck, for two reasons:
firstly, we are yet to see the outcomes, and
secondly, the Q&A audience member and Canavan were discussing prices as they are “now” and “at the moment”.
So that’s what I’ve addressed in this FactCheck.
Based on the electricity generated now by old coal-fired power stations with sunk costs, Matt Canavan was right to say: “I don’t accept that renewables are, at the moment, cheaper than coal”. In 2017, the marginal cost of generating power from an already existing coal station is less than $40/MWh, while wind power is $60-70/MWh.
The Q&A audience member may have been talking about new-build prices.
Based on recent prices for newly-installed wind power of around $60-70/MWh, and recent price projections for new supercritical coal power at around $75/MWh, it is reasonable to say that – as things stand today – wind power would be cheaper than coal as a new-build source of electricity. – Ken Baldwin
The author has provided a sound FactCheck that covers a lot of the complexities around a challenging issue. I would add one remark which doesn’t detract from the author’s verdict.
The cost of new-build coal is likely to be higher than reported in the FactCheck.
The author was correct to point out that the introduction of a price on carbon emissions would increase the cost of new-build coal-fired electricity.
The mere possibility of the introduction of a price on carbon or carbon regulation in the future actually affects the costs of new-build coal-fired electricity today. The risk of increased costs or regulation for emission intensive generators manifests itself as a higher “risk premium” applied to current financing costs. The overall effect is a higher weighted average cost of capital (basically, a higher average interest rate) for emission intensive generation.
In the Finkel review, the weighted average cost of capital for coal is projected to be 14.9%, compared to 7.1% for renewables. Risk adjusted financing costs would result in the levelised cost of new coal being higher than the figures presented in the FactCheck. – Dylan McConnell
The cost of electricity produced from a new wind farm is competitive with the best estimates for the cost of electricity produced from a new coal station, and cheaper than the cost of new coal quoted in very reputable analyses (CO2CRC 2015 and CSIRO 2017).
As noted by the author, the comparison in this FactCheck does not include the cost of intermittency for renewables. Recognising that no technology runs 100% of the time, there is a backup cost to be added to wind to make it as firm (or stable) as a fuel-based plant. Available costs for such backup, such as large scale battery or pumped storage, are based on estimates and are the subject of much current study.
New wind with backup could very well be very competitive with new coal, particularly if the cost of emissions is recognised. However, at present, the contention either way is unproven. – Tony Wood
The Conversation’s FactCheck unit is the first fact-checking team in Australia and one of the first worldwide to be accredited by the International Fact-Checking Network, an alliance of fact-checkers hosted at the Poynter Institute in the US. Read more here.
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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.