The dual citizenship saga shows our Constitution must be changed, and now



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Jacqui Lambie bids a tearful farewell in the Senate this week, after becoming the latest politician caught up in the dual citizenship saga.
AAP/Lukas Coch

Joe McIntyre, University of South Australia

It is time to accept that Section 44 of the Australian Constitution is irretrievably broken. In its current form, it is creating chaos that is consuming our politicians. This presents a rare opportunity for constitutional change. A referendum could address not only the citizenship issue but the entirety of Section 44, which no longer looks fit for purpose.

The “brutal literalism” adopted by the High Court means that there can be no quick or stable resolution to the citizenship saga consuming the national political class.

Even a thorough “audit” of current politicians, such as the deal announced this week by Prime Minister Malcolm Turnbull, will offer only a temporary respite. Not only can it be extremely difficult to determine if someone has foreign citizenship, the agreed disclosures will not capture all potential issues (for example, it only extends back to grandparents).

Moreover, as foreign citizenship is dependent on foreign law, a foreign court decision or legislation may subsequently render a person ineligible.

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This issue will continue to dog all future parliaments.

The idea that the Constitution provided a “flashing red light” on this issue is mistaken. The dual citizenship problem has long been an open secret. It has been the subject of numerous parliamentary reports over the last 40 years, the most recent in 1997.

A royal commission was once suggested to audit all politicians. This has been a time bomb waiting to go off, but one that stayed strangely inert for more than 100 years.

Current version of Section 44.

Moreover, no-one really knew how the High Court would resolve the “citizenship seven” case. Turnbull was widely mocked for his initial certainty about Deputy Prime Minister Barnaby Joyce’s eligibility.

Following the High Court’s unexpected same-sex marriage decision, few commentators felt any confidence in predicting how it would decide the “citizenship seven” case. The result could easily have gone the other way.

More significantly, the court has imposed a far harsher test than expected. Not only is knowledge of potential ineligibility irrelevant, it is not sufficient that a person takes “reasonable steps” to divest foreign citizenship. Unless a foreign law would “irredeemably” prevent a person from participating in representative government, the fact of dual citizenship will be sufficient to disqualify a person.

It is this strict new interpretation that has cast doubt over the eligibility of politicians such as Labor MP Justine Keay. Keay had renounced her British citizenship prior to nomination, but did not receive final notification until after the election.

Arguably, she is ineligible. This was not a failure to undertake “serious reflection”, but a consequence of it.

Prospective politicians would be required to irrevocably rid themselves of dual citizenship early enough to ensure this is confirmed prior to nomination. The Bennelong byelection provides a graphic illustration of the issue – the ten days between the issuing of the writs and the close of nominations would be far too short for any effective renunciation.

Serious unresolved issues remain, even before we get into the difficulty posed by the “entitled to” restriction in Section 44. This provision could, for example, render Jewish politicians ineligible under Israel’s “right of return” laws.

Section 44 is not only unworkable, it is undesirable. The spectre of Indigenous leader Patrick Dodson being potentially ineligible, or Josh Frydenberg facing questions after his mother fled the Holocaust, reveal the moral absurdity of this provision. In a modern multicultural society, where citizenship rights are collected to ease travel and work rights, a blanket prohibition is archaic and inappropriate.

Perhaps by giving us an (unnecessarily) unworkable interpretation, the High Court has unwittingly provided the impetus to reform the entirety of Section 44.

That section is concerned with more than just citizenship. Disqualifying attributes including jobs in the public service, government business ties, bankruptcy and criminality.

In disqualifying Senators Bob Day and Rod Culleton earlier this year, the High Court again interpreted the provisions unexpectedly strictly. Again, this strict interpretation has invited challenges to other politicians.

Under the current law, it seems a potential candidate must irrevocably rid themselves of all (potentially valuable) disqualifying attributes prior to nominating, on the chance they may be elected.

Jeremy Gans, one of the most vocal critics of the High Court’s decision, has described this as “one of the Constitution’s cruellest details”. Moreover, as Hollie Hughes’s case illustrates, a defeated candidate may need to avoid these activities even after the election on the off chance of a recount.

Proposed version of Section 44.

Constitutional change offers a chance to break this deadlock. The process does not need to be long and convoluted. We already have a draft text. The proposal suggested by the 1988 Constitution Commission scrapped all disqualifications except the prohibition on treason, and offered a reworked restriction on employment. Other matters would be left to parliament

This well-considered proposal is compelling. We could have an act passed by Christmas, and a referendum early in the new year. The same-sex marriage survey, a matter that will affect many more people far more substantially, has been organised and executed in a far shorter time.

This is a technical issue, but it is consuming vital public resources and distracting our politicians from the role of governing Australia. Changing the Constitution is the only way to draw a line under this chaos.

Our Constitution was never meant to be a static document. It is now more than 40 years since we successfully amended the Constitution, and nearly 20 years since a referendum was even held. Both of these are record periods of time for our Federation.

The ConversationThis has perpetuated the myth that constitutional change is effectively implausible. A referendum on Section 44 would re-engage the Australian people in this vital process. This will, in turn, make it easier for other causes, including Indigenous rights and the republic, to be taken to referendum.

Joe McIntyre, Senior Lecturer in Law, University of South Australia

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

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Don Dale royal commission demands sweeping change – is there political will to make it happen?


Sophie Russell, UNSW and Chris Cunneen, UNSW

The Royal Commission into the Protection and Detention of Children in the Northern Territory’s final report, which was handed down on Friday, revealed “systemic and shocking failures” in the territory’s youth justice and child protection systems.

The commission was triggered following ABC Four Corners’ broadcasting of images of detainee Dylan Voller hooded and strapped to a restraint chair, as well as footage of children being stripped, punched and tear-gassed by guards at the Don Dale and Alice Springs youth detention centres.

The commission’s findings demonstrate the need for systemic change. However, the commission will not, in itself, bring about that change. Its capacity to make lasting change lies with the government implementing its recommendations.

What did the commission find?

The commission found that the NT youth detention centres were not fit for accommodating – let alone rehabilitating – children and young people.

It also found that detainees were subjected to regular, repeated and distressing mistreatment. This included verbal abuse, racist remarks, physical abuse, and humiliation.

There was a further failure to follow procedures and requirements under youth justice legislation. Children were denied basic human needs, and the system failed to comply with basic human rights standards and safeguards, including the Convention on the Rights of the Child.

The commission also found that the NT child protection system has failed to provide appropriate and adequate support to some young people to assist them to avoid prison.

Importantly, the commission found that isolation “continues to be used inappropriately, punitively and inconsistently”. Children in the high security unit:

… continue to be confined in a wholly inappropriate, oppressive, prison-like environment … in confined spaces with minimal out of cell time and little to do for long periods of time.

What did the commission recommend?

Based on these findings, the commission recommended wide-ranging reforms to the youth justice and child protection systems.

Not surprisingly, a central focus of the recommendations relate to detention. They ranged from closing the Don Dale centre to significant restrictions on the use of force, strip-searching and isolation, and banning the use of tear gas, spit hoods, and restraint chairs.

There is a focus on greater accountability for the use of detention through extending the Commissioner for Children and Young People’s monitoring role. Recommendations also cover health care (including mental health and fetal alcohol spectrum disorder screening), education, training, and throughcare services for children exiting detention.

Among its suite of proposed reforms, the commission recommended developing a ten-year strategy to tackle child protection and prevention of harm to children, and establishing an NT-wide network of centres to provide community services to families.

Youth justice reforms include improving the operation of bail to reduce the unnecessary use of custodial remand; expanding diversionary programs in rural and remote locations; and operating new models of secure detention, based on principles of trauma-informed practice.

Adequate and ongoing training and education for police, lawyers, youth justice officers, out-of-home-care staff and judicial officers in child and adolescent development is also recommended.

The commission also emphasised the importance of developing partnerships with Indigenous organisations and communities in the child protection and youth justice systems. Several organisations in written submissions to the commission identified the importance of appropriately resourcing community-controlled, and locally developed and led, programs for Indigenous young people.

Increasing the age of criminal responsibility a good place to start

One of the commission’s most significant recommendations is to increase the minimum age of criminal responsibility to 12 years, and only allowing children under 14 to be sentenced to detention for serious offences.

If this recommendation were to be implemented it is likely to have far-reaching implications across Australia. Currently, the minimum age is ten years in all states and territories.

Of particular relevance to the commission is the adverse affect of a low minimum age of criminal responsibility on Indigenous children.

The majority of children under the age of 14 who come before Australian youth courts are Indigenous. In 2015-16, 67% of children placed in detention under the age of 14 were Indigenous. This concentration is even higher among those aged 12 or younger.

Nationally, 73% of children placed in detention and 74% of children placed on community-based supervision in 2015-16 were Indigenous.

Raising the minimum age of criminal responsibility opens the door to responding to children’s needs without relying on criminalisation, given its short- and long-term negative impacts.

It enables a conversation about the best responses to children who often – as the commission’s findings acknowledged – have a range of issues. These can include trauma, mental health disorders and disability, coming from highly disadvantaged backgrounds, having spent time in out-of-home care, and – particularly among Indigenous children – being removed from their families and communities.

The ConversationA positive outcome from the commission will require political will and leadership to respond effectively to broader systemic issues. Raising the minimum age of criminal responsibility is a good place to start.

Sophie Russell, Research Associate, UNSW and Chris Cunneen, Professor of Criminology, UNSW

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

With One Nation on the march, a change to compulsory voting might backfire on Labor


Doug Hunt, James Cook University

The Queensland Labor government’s change back to compulsory preferential voting could increase informal voting and actually backfire, with a strong flow of Pauline Hanson’s One Nation preferences to the Liberal National Party.

What appeared to be a masterly, if cynical, move from Labor now looks far from smart. This is especially so as opinion polling shows a strong flow of One Nation preferences to the LNP, making it the beneficiary of full preferential voting.

Paradoxically, Labor preferences may assist the LNP in some rural seats where One Nation comes second to the LNP. One Nation, which looks set to win a few seats, will itself be helped by preferences from Katter’s Australian Party and also from the LNP.

The difference between optional and compulsory preferential voting

In April last year, Queensland parliament increased the number of electoral districts from 89 to 93. This move, initiated by the LNP with the support of crossbench members, was trumped by Labor, also with crossbench support. Labor amended the Bill to additionally re-introduce compulsory preferential voting.

The introduction by Labor of compulsory full preferential voting owed nothing to democratic electoral theory. Like all previous voting system changes, Labor expected to get some advantage.

Labor proposed two related reasons for the change: to reduce informal votes and achieve consistency between state and federal elections. However, optional preferential voting has meant that Queensland elections have the lowest rate of informality across all Australian parliaments. This is despite Queensland being having a high informal vote in federal elections.

The return to full preferential voting will actually increase the number of informal votes. An informal vote is a ballot paper where the voter has failed to put a number every box, or otherwise not complete it properly.

Compulsory, or full preferential, voting requires an elector to number every box beside each candidate on the ballot paper sequentially in order of the voter’s preference. If no candidate achieves a majority of “1” votes on the first count, the candidate with the lowest number of votes is eliminated from the ballot, and their votes allocated to the remaining candidates according to the eliminated candidate’s second preference.

This process continues until one candidate reaches a majority (50% plus one) of votes. The aim is to elect the most preferred candidate, rather than the simple plurality required under first-past-the-post voting.

FPV Formal Ballot Paper Example.
Electoral Commission of Queensland

This is the system used in federal elections and in all other states except New South Wales, which uses optional preferential voting. Queensland elections were conducted via full preferential voting from 1962 until 1992. Optional preferential voting was then introduced following a recommendation of the Electoral and Administrative Review Commission.

Under optional preferential voting, voters can choose how many, if any preferences they allocate to candidates. They can simply vote 1, or they can vote for some or all candidates in order of their preference. Counting proceeds as with full preferential voting.

This system maximises choice for voters, ensuring that they don’t have to indicate any preference for someone they don’t wish to elect. Optional preferential voting therefore seems like the most democratic form of voting.

On the other hand, full preferential voting arguably maximises the democratic principle of public participation, by ensuring that voters’ second (and so on) preferences pass on to other candidates. Their votes are therefore not wasted. So, elections more accurately reflect the will of the people, as the winner can claim the support of most voters.

Under optional preferential voting, if large numbers of electors limit their preferences to one candidate, someone without majority support may be elected.

What history tells us

The real reason for a return to full preferential voting was to assist Labor in garnering preferences from the Greens. These preferences typically flow heavily to Labor – as high as 80% in many cases.

However, optional preferential voting meant that Greens voters increasingly just voted 1 for their own candidate, robbing Labor of votes. ABC election analyst Antony Green calculated that had full preferential voting been in place in 2015, Labor would have won an additional eight seats and an absolute parliamentary majority.

Labor also hoped to pick up preferences from other candidates in order to stave off Greens challenges in inner-city districts.

The optional preferential voting experience in Queensland shows that over time, the proportion of the electorate not stating full preferences generally increases. Academic John Wanna warned of a defacto first-past-the post system, calling it a “denial of a true democratic outcome”.

In 2012, 70% of electors voted 1 only. This proportion fell to 55% in the 2015 election, apparently due to disaffection with the Newman LNP government, when many voters deliberately put the LNP last on the ballot paper.

In 2016, Labor appeared in a winning position with the change to compulsory preferential voting. 2017 is different.

The difficulty in predicting the outcome of Queensland’s state election is compounded not just by changes to the electoral system, but by volatile political factors.

Chief among these is the resurgence of support for One Nation. In the 2015 election, standing in only 11 electorates, the party garnered a statewide vote of less than 1% – though Hanson herself lost narrowly to the LNP in the seat of Lockyer.

Recent opinion polls suggest support for One Nation at around 18%, prompting commentators to assign it a “kingmaker” role in a likely hung parliament.

So it’s impossible to gauge the impact of a return to compulsory compared with optional preferential voting with certainty. In most seats, it won’t change the outcome.

However, some seats will likely be decided differently under full preferential voting. In a close election, that can determine which party wins on 25 November.

The ConversationIronically, given the LNP’s vehement criticism of the change to full preferential voting last year – it was the ‘death of democracy’, according to one parliamentarian – they are likely to be the main beneficiary of the changed system.

Doug Hunt, Adjunct Associate Professor, College of Arts, Society and Education, James Cook University

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

Greens resignations show a need to change dual citizenship requirements



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The Greens have lost their two co-deputy leaders, Scott Ludlam and Larissa Waters, in a matter of days.
AAP/Mick Tsikas

Lorraine Finlay, Murdoch University

On Tuesday, the Greens’ Larissa Waters became the second senator in under a week to resign from parliament, after discovering she held dual citizenship and was therefore ineligible to hold her seat. Her Canadian citizenship revelation followed Greens co-deputy leader Scott Ludlam’s resignation, after he was found to hold New Zealand citizenship.

It is expected that the Senate will refer both matters to the High Court, sitting in its capacity as the Court of Disputed Returns. The court will almost certainly find both senators ineligible based on their dual citizenship. It will declare the resulting vacancies should be filled by a recount of the ballot papers from the 2016 federal election.

What does the Constitution say?

Section 44 of the Constitution sets out several disqualifications that result in a person being:

… incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

One of those is Section 44(i). It disqualifies any person 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.

Section 44(i) effectively means that dual citizens are not ordinarily eligible to be elected to parliament.

The High Court has previously held that becoming naturalised as an Australian citizen is not enough on its own to escape this disqualification. A person must also take “all reasonable steps” to renounce their foreign citizenship. Exactly what this requires will depend on the circumstances of each particular case and will, in particular, depend on the law of the relevant foreign country.

In the case of both New Zealand and Canada the process is straightforward. Specific government websites provide clear advice on how to apply to renounce your citizenship.

So, by failing to make a request for release from their foreign citizenship, neither Waters nor Ludlam took reasonable steps to satisfy the requirements of Section 44(i).

Not only does Section 44(i) mean the two Greens senators are unable to remain in the parliament, but they were never actually eligible to be elected in the first place.

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Why are dual nationals ineligible?

Section 44(i) was originally designed to ensure MPs had a clear and undivided loyalty to Australia, and would not be subject to any improper influence from foreign governments.

This reflected the position in the UK. Those born outside “the Realm” were disqualified from holding office in the Privy Council or parliament.

The history and context of this section is important. At the time of the first Australian parliament, nearly half of all members had been born overseas – and any person born in Australia was a British subject. The legal concept of Australian citizenship did not exist until 1949.

Before 2002, any Australian citizen who became a citizen of another country automatically lost their Australian citizenship. Much has changed since Section 44(i) was first drafted.

Should Section 44(i) be reformed?

Several expert bodies and parliamentary committees have considered Section 44(i) over the years and recommended reform. The section has been criticised on several grounds, including its archaic language, unclear scope, and the sheer number of Australian citizens who are potentially disqualified under its terms.

Of particular note, given the events of the past week, has been the criticism that many Australian citizens are likely to be unaware that they are actually dual citizens.

This is not simply an academic concern. Several potential MPs have been ruled ineligible in the past on the basis of holding dual citizenship, including the two major party candidates in the 1992 Wills by-election and a One Nation Senator elected for Queensland at the 1998 federal election. And earlier this year the Court of Disputed Returns rejected a challenge to the eligibility of independent senator Lucy Gichuhi that was based around her previous Kenyan citizenship.

Figures from the 2001 Census show approximately 3 million Australian citizens were born overseas. Among the 224 MPs who currently remain in parliament, 23 were born overseas.

While not every Australian who is born overseas remains a dual citizen, these figures do highlight the significant number of people who are potentially impacted by Section 44(i).

But reform can only be achieved through a constitutional referendum, which is itself a challenging exercise.

There are arguments weighing against any change. The principles that underpin Section 44(i) are still of continued importance. There is no doubt that the integrity of parliament and the loyalty of MPs are vitally important. This issue has been highlighted only recently with claims about the influence of foreign donations in Australian politics.

The ConversationWhen considering changes to Section 44(i), the key is to strike the right balance between maximising participation by Australian citizens while also safeguarding the national interest. Given the events of the past week, now is an opportune time to engage in that conversation.

Lorraine Finlay, Lecturer in Law, Murdoch University

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