If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?



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It’d be better for ministers like Barnaby Joyce to have any potentially contentious decisions made by an acting minister until their citizenship issues are resolved.
AAP/Mick Tsikas

Anne Twomey, University of Sydney

What would happen if the High Court found that ministers Barnaby Joyce, Fiona Nash and Matthew Canavan had not been validly elected at the last federal election in July 2016?

In the case of the senators (Nash and Canavan), the High Court, sitting as the Court of Disputed Returns, would most likely order a special recount of the votes, as it did in relation to senators Bob Day and Rod Culleton, with the seat then most likely going to the next person on the Coalition ticket.

This may disrupt the balance between the National Party and the Liberal Party in the Senate, as those most likely to replace the two National Party senators would be from the Liberal Party.

Joyce’s seat, being in the lower house, would most likely go to a byelection, as previously occurred in the cases of Jackie Kelly and Phil Cleary. Like Kelly and Cleary, Joyce could stand for his seat at the byelection, as he has now renounced his New Zealand citizenship.

A bigger question arises, however, as to the validity of decisions that they made as ministers since the last election. If they were not validly elected in July 2016, then Section 64 of the Constitution becomes relevant. It says:

… no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

That three months ran out a long time ago. So, for a considerable time they would have been exercising powers conferred upon ministers by statute, without actually being ministers. Were those decisions valid? Could they be challenged?

This brings into play the “de-facto officer” doctrine. This is a common law doctrine that protects people who rely on acts done in the apparent execution of their office by an officer who appears to be “clothed with official authority”, even though they may not validly hold that office.

It is not aimed at protecting those who invalidly exercise power, but rather those who rely in good faith on the apparent authority of those who publicly exercise power. The doctrine is also relied on to give certainty concerning the validity of acts of persons whose appointment or election may later be challenged.

The public policy behind the doctrine is to avoid the chaos that would ensue if decisions of public officials were automatically rendered invalid because of a later discovered defect in their election or appointment. For example, the decisions of a Western Australian magistrate were upheld, even though they were taken after she had reached the compulsory age for retirement.

The application of the doctrine, however, is uncertain. It does not necessarily apply to all decisions of an invalidly appointed officer, and therefore is likely to lead to litigation if decisions are contentious.

Its application has also been doubted in relation to matters that concern a breach of the Constitution. For example, High Court Justice Michael Kirby observed in a 2006 case about the constitutional validity of acting judges that:

It is difficult to reconcile the [de facto officer] doctrine with the fundamental role of the federal Constitution as the ultimate source of other laws. Constitutional rulings can occasionally be unsettling, at least for a period. However, this is inherent in the arrangements of a nation that lives by the rule of law and accords a special status to the federal Constitution as its fundamental law.

Moreover, the doctrine ceases to protect the actions of the purported official at the point when they lose the cloak of authority, such as when the validity of their appointment is contested, or their lack of qualification to hold office is “notorious”.

It is quite possible that point arises when, in the case of a Commonwealth minister, they admit to being a dual national and refer to the High Court the question of their qualification to sit in the parliament, especially if the invalidity to hold parliamentary office exceeds three months.

For this reason, it would be prudent for those ministers who are currently under a cloud concerning their lawful occupation of office to cease to make decisions which are contentious or might give rise to legal challenges with significant consequences.

The ConversationInstead, such actions, if they need to be taken before the question of the status of these ministers is resolved by the High Court, could be taken by acting ministers to ensure their validity and avoid the financial and social costs of further litigation and uncertainty.

Anne Twomey, Professor of Constitutional Law, University of Sydney

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

New shock rocks government: Nationals’ deputy Fiona Nash a dual British citizen



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Fiona Nash made a statement to the Senate just before it rose on Thursday night for a fornight’s break.
Lukas Coch/AAP

Michelle Grattan, University of Canberra

The government has been hit with another bombshell in the citizenship crisis, with the deputy leader of the Nationals, Fiona Nash, found to have dual British nationality.

Nash made a statement to the Senate just before it rose on Thursday night for a fornight’s break. Her case will be referred to the High Court when parliament resumes on September 4.

This means that both the Nationals’ leader, Barnaby Joyce, and his deputy will be before the High Court to determine whether they are ineligible to sit under Section 44 (i) of the Constitution, as will the Nationals’ former cabinet minister Matt Canavan. The section bans people with dual citizenship being elected.

Coming as soon as parliament met on Monday and just as it adjourned on Thursday, the Joyce and Nash statements respectively bookended a disastrous week for the Turnbull government.

Like Joyce and unlike Canavan, Nash, who is minister for regional development, will stay in cabinet, and will also remain deputy leader, while the court considers her position.

Nash told the Senate that after Joyce’s statement on his dual New Zealand citizenship, she sought advice from the UK Home Office. By Monday evening she was told a caseworker there believed she was a British citizen by descent through her Scottish-born father.

Her mother was born in Australia and was an Australian citizen; her father was born in Scotland in 1927. Her father died nine years ago, and her mother five years ago.

“I was born in Sydney in 1965. My parents divorced when I was eight and my mother raised me. I had very little contact with my father throughout his life,” Nash said.

“Growing up, my parents always told me that I was not a dual citizen. My understanding since early childhood was that in order to be a dual British citizen, I would need to apply for it.”

She said an internet search revealed a host of websites saying that having a Scottish-born father allowed a person to apply for citizenship, while mentioning nothing about automatic citizenship by descent.

She said the government had sought legal advice from the UK about her situation. This had been received on Thursday, and had been considered by a committee of cabinet late Thursday. Advice had been received from the solicitor-general shortly before she spoke.

“I have just met with the prime minister and am taking this opportunity to make the Senate aware at the earliest possible opportunity of the position,” Nash said.

She said that on the basis of the solicitor-general’s advice, Malcolm Turnbull “has indicated to me that he sees no reason for me to stand aside from my portfolio responsibilities.”

Labor greeted Nash’s stated timeframe with some scepticism.

Senator Katy Gallagher, manager of opposition business in the Senate, said as Nash had admitted, she’d “known since Monday that she was a dual citizen, yet waited until one minute before the Senate rose for a two-week break to inform the parliament. This is simply not good enough.”

The ConversationShe said Turnbull needed to explain why he was holding Joyce and now Nash to a lesser standard than Canavan, and not requiring them to stand down.

https://www.podbean.com/media/player/hu9ay-6f0803?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

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



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

Graeme Orr, The University of Queensland

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

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

What happens now?

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

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

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

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

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

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

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

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

What will the MPs argue?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The law is an unnecessary mess

All this is a law professor’s picnic.

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

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

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

Graeme Orr, Professor of Law, The University of Queensland

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

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



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

Michelle Grattan, University of Canberra

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

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

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

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

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

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

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

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

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

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

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

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

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

Dunne tweeted:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Michelle Grattan, Professorial Fellow, University of Canberra

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

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



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

Michelle Grattan, University of Canberra

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

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

Work that one out.

Section 44 (i) bans from being a candidate anyone who “is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power”.

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

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

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

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

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

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

These were:

  • Was the person born overseas?

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

  • Had he ever applied for citizenship of the country?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

https://www.podbean.com/media/player/hu9ay-6f0803?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

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



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

Michelle Grattan, University of Canberra

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The opposition is calling for Joyce to stand aside.

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

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

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

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

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

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

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

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

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

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

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

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

https://www.podbean.com/media/player/hu9ay-6f0803?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

Hanson set to refer Malcolm Roberts to the High Court over dual citizenship questions



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Pauline Hanson said Malcolm Roberts has her full backing.
Lukas Coch/AAP

Michelle Grattan, University of Canberra

Pauline Hanson is set to move that the High Court consider the eligibility of One Nation senator Malcolm Roberts. There is a question mark over whether Roberts was a dual British citizen when he nominated for parliament.

Hanson’s announcement came after it was obvious a Greens move for a referral would be successful. This followed BuzzFeed News on Tuesday posting online Roberts’ signed application for Australian citizenship, in which he declared he was a British citizen at age 19 in 1974.

Whether Roberts was a dual national has been a long-running issue, with Roberts changing his story, from saying he was never a British citizen to most recently claiming he had renounced his British citizenship but refusing to make public the documentation. Under Section 44 of the Constitution a dual citizen is ineligible to stand for federal parliament.

Hanson and Roberts appeared at an often heated joint news conference, at which she declared he had been “eligible to stand at the time of nomination”.

In a statement, Hanson said that One Nation would be supporting Roberts “in his plan to refer himself to the High Court”. Later the statement was revised to say Hanson would move the referral.

She said it had always been Roberts’ “intention to submit his citizenship documents for public scrutiny”.

“In light of the major parties’ decision not to hold a full inquiry into the citizenships of senators, it was deemed that the High Court would provide senator Roberts the best opportunity to prove he has complied with the Australian Constitution and is lawfully elected,” she said.

“Senator Roberts has my full backing and total support from his fellow One Nation senators.”

Hanson told reporters Roberts’ case was “not straightforward” but “very complex”. “You don’t understand the full situation.”

Asked about what he had said on his application form, Roberts said: “I was a citizen of the UK and colonies … We all know that back then we were very strong members of the Commonwealth, we still are, we sang God Save The Queen until not long before then, I always thought that I was Australian, always thought I was Australian.”

The referral will have general agreement in the Senate. Earlier the government had resisted action against Roberts, with its Senate leader, George Brandis, saying on Tuesday that: “A person lodges an apparently regular nomination for an election, and they are declared to have been elected, then the onus of proof … lies on those who seek to prove that they weren’t validly elected to demonstrate that that is the case”.

The referral of Roberts is the latest in a dramatic series of events that has thrown the Senate’s membership into turmoil and given the High Court an extraordinary number of cases to deal with.

Apart from Roberts’ future, these include ruling on the filling of the places of two Greens senators, Larissa Waters and Scott Ludlam, who resigned because they discovered they were dual nationals, and considering the eligibility of the Nationals’ Matt Canavan, whose mother signed him up as an Italian citizen.

The Senate is also awaiting the arrival of the replacement for former Western Australian Liberal senator Chris Back, who recently retired. As well, Special Minister of State Scott Ryan is on extended medical leave.

The ConversationBut arrangements between the parties are in place to ensure the various court cases and gaps do not affect the voting numbers.

Michelle Grattan, Professorial Fellow, University of Canberra

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

Explainer: how do Australia’s proposed citizenship laws compare internationally?


Sangeetha Pillai, UNSW

Debate will resume in parliament this week over the government’s proposed changes to Australian citizenship laws. Among the reforms is a requirement for migrants to be permanent residents of Australia for four years before applying for citizenship – an increase from the current requirement of one year.

In a doorstop interview in June, Immigration Minister Peter Dutton said such an increase:

… brings us short of where Germany is at eight years for example, in Canada it’s something like four or five years, the United Kingdom four years as well.

It’s not entirely clear whether he was referring to the time a prospective citizen must have spent as a permanent resident in those countries before being eligible to apply for citizenship, or the total time they must have lived in the country before being eligible. But how would the proposed changes to Australian citizenship compare on both measures?


Further reading: Explainer: the proposed changes to Australian citizenship


Permanent residency and citizenship requirements in Australia

The changes would affect different groups of migrants in different ways. This is because there are big variations in the time it takes for a person to be eligible to apply for permanent residency after they come to Australia.

The quickest path to permanent residency does not require a person to have lived in Australia at all. For example, foreign workers who work in jobs listed on Australia’s skilled occupations list may apply for permanent residency from outside Australia, where they are invited to do so by the government, or nominated by an approved Australian employer.

But most skilled migrants apply from within Australia, and they face longer wait times. For example, a person on a temporary skilled 457 visa can apply for permanent residency after working in Australia for two years, provided their employer wants to offer them a permanent position.

Refugees who arrived in Australia by boat have the longest wait. They must first apply for a temporary Safe Haven Enterprise Visa, which allows them to apply for permanent residency after three-and-a-half years working or studying in regional Australia, provided they can also meet the eligibility criteria for a permanent visa.

So, the minimum time that migrants in these three groups must live in Australia before becoming eligible for permanent residency ranges from zero to three-and-a-half years.

Despite this, under current law, the minimum time in which different groups of migrants can become eligible for citizenship is actually pretty even: four years for skilled workers in either category, and four-and-a-half years for refugees who arrive by boat. This is because the current requirements take into account the time a person has spent living in Australia before becoming a permanent resident.

Under the proposed changes, things will get much more uneven, because the time a person spends in Australia before gaining permanent residency will no longer count. Migrants that face longer roads to permanent residency will be hardest hit by the changes. For example:

  • Things stay the same for skilled workers with immediate access to permanent residency. They will need to live in Australia for at least four years before they can apply for citizenship.

  • Skilled workers who start out on 457 visas will need to live in Australia for at least six years before they can apply for citizenship. That’s two years longer than under current law.

  • Refugees who arrive by boat will need to live in Australia for at least seven-and-a-half years. That’s three years longer than under current law.


Further reading: Minister to get unprecedented power if Australia’s new citizenship bill is passed


Requirements in Germany

Migrants who live in Germany are usually entitled to permanent residency (known as a “settlement permit”) after five years, provided they can meet particular conditions.

However, it is possible for some people to become permanent residents in less than five years. For instance, spouses of German citizens can acquire permanent residency in three years. Reduced periods also apply for graduates of German universities.

A person must be a permanent resident to become a citizen. But there’s no legal requirement to have held permanent residency for any particular length of time.

To be eligible for citizenship, migrants must generally have lived in Germany for at least eight years. But this rule is relaxed in certain circumstances:

  • People who complete a German integration course can apply for citizenship after seven years – or six years if they can prove a higher level of integration.

  • Families can apply together – even if only one parent has met the eight-year residence requirement.

  • Refugees can apply after six years.

  • Spouses of German citizens can do so after three years.

German authorities also have the discretion to grant citizenship to a person who has lived in Germany for less than eight years but who doesn’t fall into any of these categories.

Requirements in Canada

In Canada, migrants applying for citizenship must have been present in Canada as a permanent resident for 1,460 days – or four years – in the six years leading up to their citizenship application. But this is expected to change in coming months.

Canada recently passed a law reducing the permanent residency requirements for prospective citizens. When the law comes into effect, people will need to have been present in Canada as a permanent resident for 1,095 days – or three years – in the five years before their application.

Canada’s requirements are similar to the proposed Australian requirements in that a migrant must be a permanent resident for several years before they can apply for citizenship. But it is often possible to apply for permanent residence from outside Canada, or after relatively short residency periods.

For example, experienced skilled foreign workers, family members of Canadian citizens or permanent residents, and refugees can all apply for immediate permanent residence. Temporary foreign workers can apply for permanent residence after gaining one year of work experience in Canada.

Requirements in the UK

Prospective UK citizens must generally have lived in the UK for at least five years, and been a permanent resident for at least one year leading up to their application.

It usually takes five years for a migrant to become eligible for permanent residency. This means it’s generally necessary for an applicant to live in the UK for six years before they can apply for citizenship.

Some migrants can gain permanent residency in less than five years. For example, some entrepreneurs and investors become eligible after two-to-three years. People who take advantage of these shorter routes to permanent residency can apply for citizenship after five years.

The road to citizenship is much shorter for spouses of UK citizens, who can apply after living in the UK for three years, provided they have acquired permanent residency at any point during this time. Permanent residency timeframes are also relaxed: spouses of UK citizens or permanent residents need only have lived in the UK for two years.

How would Australia compare?

So, the proposed Australian timeframe of four years’ permanent residency before citizenship is:

  • longer than Germany’s requirements, which do not specify a minimum permanent residency period;

  • the same as Canada’s current requirement of four years, but longer than Canada’s incoming requirement of three years; and

  • longer than the UK’s requirement of one year.

In terms of the total time it would take before being eligible to apply for citizenship in Australia (ranging from four years to up to seven-and-a-half years for refugees who arrive by boat), the proposed changes would be:

  • similar to the German period of three to eight years;

  • generally longer than both the current Canadian period of four to five years and the new period of three to four years; and

  • similar to the UK period of three to six years.

Whether or not a prospective citizen would face a longer wait in Australia compared to Germany, Canada or the UK comes down to their individual circumstances.

The ConversationFor example, some skilled migrants who can gain Australian permanent residency immediately and citizenship in four years may face longer waits in Germany and the UK. But that’s untrue for other individuals and groups, such as refugees, who would face a longer wait in Australia.

Sangeetha Pillai, Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Law School, UNSW

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

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



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

Michelle Grattan, University of Canberra

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

https://www.podbean.com/media/player/axx2w-6d8662?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

Constitution’s wide net catches even MPs who had no idea they’re foreign citizens



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Matt Canavan has been told that he is an Italian citizen.
AAP/Mick Tsikas

Helen Irving, University of Sydney

Cabinet minister Matt Canavan has become the latest federal MP to be tripped up by the Australian Constitution’s ban on dual citizens serving in parliament. On Tuesday, the Nationals senator resigned from cabinet, pending an investigation into whether he holds Italian citizenship.

Canavan’s case, and those of the two Greens senators – Scott Ludlam and Larissa Waters, who resigned from parliament entirely over their dual citizenship earlier this month – have provoked calls for changes to the Constitution.

Section 44(i) of the Constitution states “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 a citizen of a foreign power” is ineligible to stand for, or sit in, federal parliament.

At the heart of the current controversy is that the senators were either ignorant of their second nationality or believed themselves to have lost it. For some this amounted to carelessness – even “incredible sloppiness”, in Prime Minister Malcolm Turnbull’s words – by them or their party.

The Australian Electoral Commission (AEC) advises potential parliamentary candidates with a foreign nationality that they will be:

… disqualified from election to parliament if they do not take “all reasonable steps” to renounce their other citizenship before nomination.

The AEC also says:

Taking all reasonable steps necessitates the use of renunciation procedures of the other country where such procedures are available.

But what about cases where someone was not in a position to take “reasonable steps”, because their second citizenship was unknown to them?

What the High Court has previously found

The AEC’s advice refers to a 1992 case in which the High Court closely examined Section 44(i) for the first time.

The case concerned the eligibility of candidates in the 1992 by-election for the lower house seat of Wills. It included a meticulous examination of what it meant for an Australian to hold a foreign nationality, and how a nationality might be discharged.

The court recognised that Liberal candidate John Delacretaz and Labor’s Bill Kardamitsis, both naturalised Australians, had lived in and contributed to Australia for many years, and that neither had taken any advantage of their other citizenship over that time.

Nevertheless, the court’s majority concluded that any candidate who had not actively renounced their foreign citizenship was constitutionally disqualified, regardless of whether there had been any benefit from, reliance upon, or even acknowledgement of that citizenship.

The mere entitlement to a foreign nationality was enough. This interpretation has applied ever since.

But two dissenting judgments offered an alternative perspective. This may provide guidance in thinking about the meaning of the Constitution’s provision today, and even an alternative to the difficult task of constitutional change.

Although certain facts differed from the current examples – the candidates were not native-born Australians, and the naturalisation process at the relevant time included renunciation of all other allegiances – the reasoning still applies.

Two principal questions were considered:

  • Did the disqualification rule really apply in the absence of active identification with, or allegiance to, a foreign country?

  • And should the interpretation of the Constitution be subject to other countries’ laws?

In justice William Deane’s view, the whole of Section 44(i) should apply:

… only to cases where the relevant status, rights or privileges [of citizenship] have been sought, accepted, asserted or acquiesced in by the person concerned.

For an Australian-born citizen, Deane concluded, there should be no disqualification unless there was such a “relationship with the foreign power”. For a naturalised citizen, doing all that “can reasonably be expected to extinguish any former relationship with a foreign country to the extent that it involves the status, rights or privileges” of citizenship would be sufficient to overcome disqualification.

Both justices also recognised that each country has the sovereign power to determine its own citizenship law. But, in justice Mary Gaudron’s view, “every consideration of public policy and common sense tells against the automatic recognition and application of foreign law as the sole determinant” of the constitutional rights of Australian citizens.

Deane posed a hypothetical. What if a foreign power decided to:

… disqualify the whole of the Australian parliament by unilaterally conferring upon all of its members the rights and privileges of a citizen of that nation?

In other words, what are the limits in treating unintended or unwanted foreign citizenship as genuine foreign allegiance?

Many countries (Ireland, for example) automatically confer citizenship on the children of their citizens. Many Australians will not be aware they have received such a “gift”.

If, as has been said, Section 44(i) was designed so MPs “did not have a split allegiance and were not, as far as possible, subject to any improper influence from foreign governments”, surely citizenship of which one is ignorant cannot create such conflicts?

What now?

Responding to Canavan’s troubles, Attorney-General George Brandis suggested Canavan was not disqualified because his Italian citizenship was acquired “without [his] knowledge or consent”.

The ConversationThis may not be correct under current constitutional law; the government will refer Canavan’s case to the High Court. But it captures a perspective that is well worth consideration.

Helen Irving, Professor, Faculty of Law, University of Sydney

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