The Section 44 soap opera: why more MPs could be in danger of being forced out

H. K. Colebatch, UNSW

One thing we learned from the recent election campaign is that the political crisis over Section 44 of the Constitution has not gone away.

Many candidates in the election had their eligibility to stand for parliament questioned and some were even forced to withdraw from their races.

Despite all the attention given to this matter over the last couple of years, and the various procedures introduced to address it, Section 44 will only continue to be a problem until the parliament steps in to address it.

To do that, we first need to address seven myths about Section 44.

1. Everyone knows their citizenship, they just need to do their paperwork

Section 44 is about more than just citizenship – it covers a variety of restrictions on who can serve in parliament.

For instance, a GP who bulk-bills a patient could be considered to have a “pecuniary interest in an agreement with the Commonwealth.” And a postman or a nurse in a public hospital could be deemed to hold “an office of profit under the Crown.”

On citizenship, the section doesn’t just disqualify dual citizens, it also bars those “entitled” to citizenship elsewhere (even if they haven’t applied for it) and those “entitled to the rights and privileges” of citizenship (basically, the “right of abode”, or being entitled to enter a country and live there).

Such entitlements are not easy to discover and almost impossible to remove, because they’re embedded in foreign legislation.

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2. It doesn’t affect many people

On the contrary, the parliamentary committee investigating the matter estimated half the adult Australian population, or more, could be disqualified by law or impeded in practice from standing for parliament.

In the recent election, we saw one potential candidate withdraw because she was an Australia Post employee and another because she was entitled under Indian law to some privileges of Indian citizenship.

As a result, the Australian parliament becomes even less representative of the Australian people.

3. The constitution framers knew what they were doing

The original text agreed to at the constitutional convention in 1898 simply said anyone who had acquired foreign citizenship by their own act was disqualified from standing for parliament.

The text that eventually became Section 44 was inserted surreptitiously by one of the key architects of the constitution (and Australia’s first prime minister), Edmund Barton, as a drafting amendment. He introduced 400 amendments on the second-to-last day of the convention, but made no mention of this change, and expressly denied there had been any changes to Section 44 apart from a minor one to another subsection.

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Could Section 44 exclude Tony Abbott and Barnaby Joyce from parliament?

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4. The High Court has sorted it out

Far from it. Very few cases challenging Section 44 have made it that far, partly because the court has done everything possible to fend them off, including trashing the constitutional provision giving citizens the right to challenge the eligibility of parliamentarians. Politicians have also refused to refer cases to the court unless it’s advantageous to their party.

And when the court has heard a case, it has construed its task so narrowly as to give little guidance to future action on the section. In particular, it has said nothing about the disqualification of those MPs “entitled to the rights and privileges of citizenship” in other countries.

In fact, when Senator Matthew Canavan’s eligibility was challenged because Italian laws had changed to permit citizenship to descendents of native Italians, the High Court noted that the law was fairly generous, but one had to apply. Canavan hadn’t applied, therefore couldn’t be an Italian citizen.

But if he had applied and then received Italian citizenship because he was eligible (as his brother had done), he would have been disqualified by Section 44.

This was all too much for the court to sort out. As a result, it offered no clarity on the large number of MPs whose eligibility hangs on what sorts of “entitlement” would disqualify them.

Senator Matthew Canavan was not disqualified after the High Court ruled his Italian citizenship was ‘potential,’ not actual.
Mick Tsikas/AAP

5. But there are administrative checks now, too

Well, yes, but nobody does anything about them. In 2017, all MPs were asked to fill out a form documenting their ancestry and citizenship, and the responses were then logged in a citizenship register. This showed some 15-20 MPs were entitled to foreign citizenship and a total of 59 had the “right of abode” in the UK, which the High Court has decided is the key to the “right and privilege” of citizenship.

But no action was taken on any of these cases. The register appears as a matter of record only.

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Read more:
Enough is enough on section 44: it’s time for reform

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Similarly, although the Australian Electoral Commission is now requiring candidates to complete a similar form, it does not take action against those who refuse to submit it, or leave sections blank. One candidate was referred to the police, but this was clearly a pointless face-saving exercise.

6. We want our MPs to be unequivocally Australian

Having foreign ancestry does not make you un-Australian. Section 44 does nothing to establish the strength of identity or loyalty – it simply prevents an undefined, but potentially very large, slice of the population from standing for parliament.

One case illustrates the ludicrous reach of the present wording.

After Lithuania regained its independence in 1990, it passed a citizenship law that gave people born outside the country to Lithuanian parents the right to citizenship. In 2016, this provision was expanded to cover those with Lithuanian grandparents. As a result, Senator Doug Cameron, whose Scottish burr we are used to hearing on news broadcasts, became eligible for Lithuanian citizenship.

While Cameron could (and did) renounce his British citizenship to qualify for election to the Australian parliament, he cannot renounce his entitlement to Lithuanian citizenship. And while some people have very strong views about Cameron, I have never heard it suggested he was working to a Lithuanian agenda rather than an Australian one.

Senator Doug Cameron was born in Scotland, but his grandparents are from Lithuania – a fact he had to disclose on the new citizenship register.
Mick Tsikas/AAP

7. It’s too hard to change the Constitution

The same thing was said about amending the Marriage Act to permit same-sex couples to marry. The public recognises there’s a problem with Section 44 and it expects the politicians to fix it.

The best shot came with the Joint Standing Committee on Electoral Matters, which recommended adding the words “until the parliament otherwise provides” to Section 44. This would not change the law, just where the law is made.

Instead of disqualifications being defined by the laws in foreign countries, as the High Court has interpreted Section 44, they could be determined by the Australian parliament. This is how qualifications of senators and members are currently decided. It’s also how women got the vote in 1902.

If this proposal was strongly supported by all the parties and clearly explained to the electorate, it would likely pass in the next election.

So where does this leave us?

It all comes down to leadership. Up to now, both the Coalition and Labor have been primarily motivated by partisan advantage: how can we use Section 44 to score a political point?

The Joint Standing Committee showed that with a willingness to collaborate, there is a path forward to solving the problem. The best we can hope for is that after the trauma of the last few years, and the evidence of the continuing decline in support for the main parties, political leaders will see that acting constructively on Section 44 might actually be in the best interests of both parties.

H. K. Colebatch, Visiting Professorial Fellow, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: Section 44 remains a constitutional trip wire that should be addressed

Michelle Grattan, University of Canberra

The fact the Victorian Liberals are having to change candidates in three seats draws attention to an issue that should be properly fixed but won’t be any time soon – the problem of section 44 of the constitution.

The candidates who’ve fallen over were to run in seats where the Liberals don’t have a chance – Wills, Lalor and Cooper (formerly Batman) – so it’s of no particular political importance that they have to be replaced. Another three flag carriers can be rustled up before nominations close.

But we are reminded of how lethal section 44 has been and how, even now, a major party can have trouble ensuring all the relevant checks have been done.

Some 17 members of the last parliament fell victim to the section – 15 in relation to citizenship, in what was a highly disruptive running crisis. This amounted to 13% of the Senate and 4.6% of the House of Representatives. There were seven byelections.

Section 44 disqualifies anyone from being a candidates if he or she

“(i) 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: or

(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or

(iii) is an undischarged bankrupt or insolvent: or

(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or

(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons.”

Of the three Liberal candidates in the news two had citizenship issues and one is an Australia Post employee.

Obviously lessons have been learned and actions taken to avoid the appalling ructions of the last parliament.

The parties are working much harder at checking – although you have to wonder how efficient minor parties like One Nation will be.

Also, as part of the nomination form submitted to the Australian Electoral Commission, candidates must now fill in detailed questions on Section 44 matters. If they have been a citizen of another country they must provide documentation that they have renounced.

A candidate’s details will be published (with provision for redacting some personal details).

But the AEC is not responsible for “vetting” the candidates. Nor should it be. That is not its role. Anyway, it couldn’t be, given the short time frame involved.

A parliamentary inquiry into the impact of section 44 on Australian democracy, headed by Liberal senator Linda Reynolds (now a cabinet minister) concluded in its report last year that: “Large sections of the Australian community are disqualified from nominating for election [….]

“Some of those automatically disqualified from nominating under s. 44 may be able to address the reasons for disqualification by quitting their public sector job or successfully renouncing a foreign citizenship before nomination, but many will never be able to.

“With the changing demographic of our nation, s. 44 will increasingly disenfranchise more and more citizens from nominating”.

The inquiry also pointed to a somewhat esoteric risk. It said there is “a significant, but previously unexamined, aspect to s. 44 and its interpretation by the High Court. This may lead to an avenue to manipulate an election.

“Any otherwise eligible Senators and Members who are elected on preference flows could have their position challenged, if they relied upon the preferences of an ineligible candidate. This has the serious potential to affect the overall result after the election has concluded, at any point during the term of Parliament.”

The inquiry recommended a referendum to repeal the section, or insert the words “until the parliament otherwise provides”.

If it passed, the committee said, the government should engage with the community “to determine contemporary expectations of standards in order to address all matters of qualification and disqualification for parliament through legislation”.

The committee recommended mitigation in the meantime, while the ground was prepared for a referendum, including full disclosure at nomination, which has been introduced.

It’s easy enough to understand why the political parties are reluctant to contemplate going down the referendum path.

Few referendums succeed, not least because they require not just an overall majority, but a win in a majority of states.

Further, a section 44 referendum would likely involve a divisive debate around whether there should be a change from the Australian-only citizenship qualification for standing for parliament.

And there are other referendum priorities – for example to include in the constitution some form of Indigenous recognition.

On the other hand, mitigation can never adequately deal with section 44 hazards. On citizenship, the section means Australians can be hostage to changes in overseas law. Also, people do not always have access to information to put their status beyond doubt, or it may be a difficult and costly process to do so. This may discourage some potential candidates exercising their democratic right.

If there are not any early parliamentary casualties in the coming term, the parties won’t feel any pressure to secure a permanent solution on section 44. Nevertheless it remains a piece of constitutional housekeeping that needs addressing.

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Forcing Australia Day citizenship ceremonies on councils won’t make the issue go away

The Australia Day debate will likely become more pronounced each year.
from shutterstock.com

Rachel Busbridge, Australian Catholic University and Mark Chou, Australian Catholic University

In the latest instalment of the culture wars surrounding Australia Day, Prime Minister Scott Morrison on Sunday said he plans to force councils to hold citizenship ceremonies on January 26. The announcement was spurred on by a few local councils’ decisions to move citizenship events to a different day out of respect for Indigenous people.

Morrison claimed he was protecting the day from those trying to “play politics”. And opposition leader Bill Shorten, as well as others on social media, accused the prime minister of playing politics himself.

Since 2018, as part of a larger ongoing project exploring culture wars and local politics, we have interviewed eleven councils across the country who have taken the most prominent actions relating to January 26. These councils are generally Greens and Labor dominant.

Some, like Yarra and Darebin, ignited a veritable media storm over plans to “dump” Australia Day citizenship ceremonies. Others, such as Flinders Island, have flown largely under the radar.

All of them, however, take seriously the inclusion of Australia’s Indigenous heritage and multicultural diversity in our national day. Our interviews show Morrison’s portrayal of councils “playing politics” is out of step – councils are reflecting the wishes of their community members.

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It’s not just citizenship

The cancellation of citizenship ceremonies on January 26 has been a sticking point for the federal government. In 2017, all 537 councils in Australia received a strongly worded letter from assistant immigration minister, Alex Hawke, warning them:

Local councils are now on notice that if they politicise Australian citizenship, the Government will see it as a breach of the [Australian Citizenship Ceremonies] Code and take appropriate action.

But with a couple of notable exceptions, namely Yarra and Darebin councils who had their rights to hold citizenship ceremonies stripped, the other councils we spoke to have refrained from touching the citizenship matter.

Some councils have simply sought to hold alternative events either on or close to January 26 that would be more inclusive of Indigenous communities. Mayor of Byron Shire Council in regional NSW, Simon Richardson, long felt January 26 celebrations divided the local community:

The Arakwal Indigenous mob will come to our events, do the Welcome to Country, but it offends them celebrating on a day that really marks a complete change to their 10,000-year-old culture, I wanted an event where we’re all together.

Wary of the federal government’s warning, other councils did not want to shift citizenship ceremonies from January 26. But they did want to use them as an opportunity to educate Australia’s newest citizens about the country’s history.

Another regional council in NSW, Lismore, has taken efforts to ensure ceremonies held on Australia Day are as inclusive of the local Aboriginal community as possible. And they never refer to the events as a “celebration”.

Diversity of local responses

Local councils sit at the coalface of the communities they serve and must respond to different needs and concerns. As David O’Loughlin, president of the Australian Local Government Association said: “if they’re reflecting their community’s interest, that’s their job.”

Two of the most prominent councils to cancel Australia Day celebrations and ceremonies, Yarra and Darebin in inner Melbourne, were responding to ongoing discussions with local Wurundjeri people who found the date painful and uncomfortable. Former Yarra Mayor, Amanda Stone, told us council knew from these discussions the Wurundjeri felt “this wasn’t a day for [them]” and wanted people to have “an understanding of what the date meant to them”.

Other councils thought it important to lead on decisions relating to January 26. Byron Shire’s plan to shift Australia Day celebrations was motivated by the sentiment non-Indigenous Australians should be the ones driving change. For Mayor Richardson, this was important to ensure that the local Indigenous community did not “cop the backlash when it’s white fellas who have been responsible for the wrongdoing.”

On consultation with the Arakwal people, Richardson said:

Their basic response was ‘leave us out of it, it’s a council issue’. Though they supported the change to our 26 January event, they wanted to make it clear that the idea was council’s, not theirs.

Lismore City Council conducted extensive consultations on changing the date of Australia Day with local communities, the results of which were handed over to the federal government.

And although they still run celebrations and citizenship ceremonies on January 26, Hobart City Council in Tasmania has formally supported the Change the Date campaign in recognition of local Aboriginal views.

The issue is not going away

Despite the different ways in which local councils have handled January 26, there is one thing on which they all agree – the issue is not going to go away.

Former Yarra Mayor Stone, said:

It’s not going to go away for Indigenous people and it’s not going to go away for younger Australians, many of whom haven’t grown up with the racism and attitudes towards Aboriginal people as people my age grew up with.

Some councils, like the Inner West in Sydney, have already seen multiple notices of motion raised. The first, submitted by Greens councillor Tom Kiat, “asking Council to recognise Invasion Day and to reallocate the funds currently designated for their Australia Day event to an Indigenous-led one” was knocked back.

But a few months later, a mayoral minute was passed asking council officers to conduct a “consultation with the local Aboriginal community and the wider community about how the nature of Council’s January 26 events should further evolve to recognise the history of Indigenous Australia.”

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Despite speaking to only a small fraction of local councils across the country so far, there is good reason to believe the Australia Day debate will become more pronounced each year.

Some, like Adelaide City Council, have told us in no uncertain terms that the date of our national holiday is a federal matter and beyond their remit. But as more councils debate the matter, it’s clear Australians are starting to think about what it would mean to include Indigenous peoples as equal partners in our national day.

Enforcing citizenship ceremonies on the day is not going to change this, nor is banning boardies and thongs.

Rachel Busbridge, Lecturer in Sociology, Australian Catholic University and Mark Chou, Associate Professor of Politics, Australian Catholic University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

How a proposed new bill would make it easier to strip Australian citizenship

The proposed amendments also remove protections against rendering a person stateless.
Shutterstock

Rayner Thwaites, University of Sydney

Last month, the federal government introduced a bill into parliament that, if passed, will make it easier to strip an Australian of citizenship by:

• making lesser offences a trigger for deprivation
• dropping the requirement that, to trigger deprivation, a conviction or convictions result in a term of imprisonment of at least six years
• weakening and complicating protections against the creation of statelessness.

These amendments are directly contrary to bipartisan recommendations of the Parliamentary Joint Committee on Intelligence and Security, contained in its report of September 2015. Those recommendations were followed when parliament inserted the current citizenship stripping provisions into the Australian Citizenship Act 2007 in December 2015.

Expanding the scope, and lowering the threshold, for deprivation

The proposed amendments address what an earlier Conversation piece referred to as “conviction-based citizenship deprivation”, one of three mechanisms for deprivation introduced into the Act in 2015.

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Of the offences currently listed as potential triggers for deprivation, some are directed at terrorism and some are without that connection (for example sabotage and espionage). All carry a maximum sentence of ten years or more: for example treason (life); espionage (life); directing the activities of a terrorist organisation (ten years) or; membership of a terrorist organisation (ten years).

This enacts the view of the parliamentary committee that ten years served to mark out the offences sufficiently serious to warrant deprivation. Further, the parliamentary committee determined that even when convicted of such an offence:

there will still be degrees of seriousness of conduct and degrees to which conduct demonstrates a repudiation of allegiance to Australia.

The committee also insisted on an additional requirement that the relevant convictions result in a sentence of at least six years imprisonment in total.

These two important existing limitations on the deprivation power are breached by the government’s proposed amendments:

• the offence of “associating with terrorist organisations” has been added to the terrorism offences that trigger deprivation. This is an offence with a maximum sentence of only three years, radically under the ten years previously required

• the requirement that conviction carry a sentence of at least six years has been dropped in relation to all the nominated offences designated “terrorism offences”. However, it remains in place for “other offences” such as espionage, sabotage and foreign incursions

• the new lower standards apply retrospectively to convictions from 12 December 2005 in relation to the relevant terrorism offences.

Weakening, and complicating, protections against statelessness

The proposed amendments also weaken the safeguards on the creation of statelessness. Currently, a person can only be deprived of citizenship under the provision if he or she “is a national or citizen of a country other than Australia” at the time when the minister strips him or her of citizenship. This is to ensure that the minister does not render the person stateless.

The proposed amendments replace that test, instead providing that the minister can deprive a person of Australian citizenship if:

the Minister is satisfied that the person would not […] become a person who is not a national or citizen of any country.

The proposed formulation substitutes the minister’s satisfaction for the facts of the matter. But under Australia’s international law commitments on statelessness, the minister’s opinion is irrelevant. What matters is whether the person is a citizen under the domestic law of the foreign country concerned.

If the minister’s view that a person is a citizen of country X diverges from the view held by the authorities in country X, there is a practical impasse. If country X determines the person is not one of its citizens and accordingly refuses to admit them, and Australia denies the newly minted non-citizen a visa, deprivation may result in the former Australian citizen being held in indefinite immigration detention.

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And the nature of the inquiry has changed. In context, the word “become” muddies the time at which the person must have another nationality. It invites the possibility that deprivation will render a person stateless, but that, over some unspecified period, they will become the national of another country.

These comments on statelessness should be understood in the context of Australia’s opaque process for determining a person’s foreign nationality or nationalities. In the United Kingdom, for example, a person has a statutory right to appeal a ministerial decision to strip them of citizenship.

In the exercise of these appeal rights, the most frequently litigated issue is whether a person has another nationality (the Pham case is a prominent example). Expert witnesses are called and cross-examined on difficult questions of foreign nationality law.

None of this institutional infrastructure is provided for under the Australian legislation. How these issues are resolved needs attention. If parliament has learned anything in the past few years, it should be that determining whether a person has a foreign citizenship is no simple matter.

The Parliamentary Joint Committee on Intelligence and Security has announced an inquiry into the Bill. Submissions close on January 11, 2019.

Rayner Thwaites, Senior Lecturer, Sydney Law School, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The latest citizenship-stripping plan risks statelessness, indefinite detention and constitutional challenge

Home Affairs Minister Peter Dutton and Prime Minister Scott Morrison unveiling tough new proposals to strip extremists of their Australian citizenship.
Joel Carrett/AAP

Sangeetha Pillai, UNSW

This week, Prime Minister Scott Morrison and Home Affairs Minister Peter Dutton announced the federal government’s intention to introduce changes to Australia’s citizenship-stripping laws. The proposed changes would likely make Australia’s regime for citizenship-stripping the most expansive in the world. I’ll outline how the proposal would change the current law, and analyse its key elements.

What are Australia’s current citizenship-stripping laws?

In 2015, Australia introduced one of the most expansive regimes anywhere for citizenship deprivation on national security grounds. Under the current law, people can lose Australian citizenship against their will in two key ways:

• Conduct-based citizenship deprivation: In certain circumstances, a citizen outside Australia can lose citizenship where the person has engaged in activities defined by reference to national security offences. A person does not need to be convicted of an offence to lose citizenship in this manner.

• Conviction-based citizenship deprivation: The Minister for Home Affairs also has the power to revoke a person’s Australian citizenship where the person has been convicted of particular national security offences, and sentenced to at least six years’
  imprisonment. This is generally the only way in which people within Australia can be stripped of Australian citizenship against their will.

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Proposals to strip citizenship take Australia a step further than most

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Currently, it is possible for the government to strip a person of Australian citizenship only if the person is a dual citizen. This means that, at present, Australian law does not allow a person to be deprived of Australian citizenship if this would render them stateless.

Dutton has said that the existing citizenship-stripping laws have been used to deprive nine people of their Australian citizenship. Very little information on the circumstances of these deprivations is available. However, it is clear that at least six of these instances involved citizens outside Australia who lost their citizenship on the basis of conduct committed overseas. There has been no reported instance of a person within Australia being deprived of Australian citizenship, or of the conviction-based ground for citizenship deprivation having been used.

What changes would the proposed laws introduce?

The government’s new proposal would make it easier for people to be stripped of their Australian citizenship in two ways.

Changes to the dual citizenship requirement

If the proposed changes become law, it will no longer be necessary for a person to definitively hold dual citizenship before losing Australian citizenship. A joint media release from the offices of Morrison and Dutton states:

The Government will…change the threshold for determining dual citizenship. This change aims to improve the minister’s scope to determine a person’s foreign citizenship status.

A bill has yet to go before parliament, and it is not clear from this statement exactly what the government envisages. One possibility is the legislation will give the minister the power to decide whether or not a person is a foreign citizen. This is likely to raise constitutional difficulties. As the High Court has made clear on many occasions, whether a person is a foreign citizen is a question determined by the law of the foreign country concerned.

Another possibility is that the legislation will allow a person to be stripped of Australian citizenship where the minister thinks it is reasonably likely, but not certain, the person has dual citizenship. As the recent referrals of multiple federal parliamentarians to the High Court over potential foreign citizenship illustrate, it can often be difficult to conclusively determine when a person has foreign citizenship. However, many people – including those born in Australia to Australian parents – hold dual citizenship as a result of a familial connection to a foreign country.

A change of this nature could also raise constitutional problems. The High Court has not yet determined the extent of the Commonwealth’s power to deprive a person of Australian citizenship. There is a plausible argument that certain citizens, especially those who hold only Australian citizenship or who have no substantive connection to a foreign country, are part of the Australian constitutional community, and are protected against citizenship deprivation.

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On a practical level, enabling the minister to revoke a person’s Australian citizenship without it being clear the person has citizenship in a foreign country creates a very real risk of rendering the person stateless. This would place Australia in violation of its obligations under Article 8 of the 1961 Convention on the Reduction of Statelessness, which prevents signatory countries from depriving people of their nationality if it would render them stateless.

Australia has signed up to an international agreement not to render people stateless.
Shutterstock

Where a person inside Australia is deprived of Australian citizenship they become vulnerable to removal from Australia, and immigration detention until removal is possible. Where it is not clear that the person has citizenship in a foreign country, there is a likelihood of such detention being lengthy, or even indefinite.

Changes to the minimum sentence for conviction-based deprivation

The government’s media release also says:

The proposed changes would enable the minister to cease the citizenship of anyone who is convicted of a terrorism offence in Australia, irrespective of the sentence they receive. This removes the current requirement that a terrorist offender must be sentenced to at least six years’ imprisonment.

Currently, the minister has power to revoke a person’s citizenship only on conviction-based grounds where a person is convicted of a select list of national security offences. It is not clear whether the government intends to retain or expand this select list of offences.

An anti-terrorism exercise at Cologne Bonn airport in Germany on November 20.
Marius Becker/dpa

Either way, the proposal is concerning. In 2015, before the current citizenship revocation laws were introduced, the Abbott government attempted to attach citizenship revocation to a much wider range of national security offences, with no requirement for a minimum sentence. A number of experts advised that this ran a risk of falling foul of the Constitution.

The more limited current legislation was ultimately arrived at following an inquiry by the Parliamentary Joint Committee on Intelligence and Security. It found that restricting the list of offences and requiring a minimum six year sentence was necessary to “appropriately target the most serious conduct that is closely linked to a terrorist threat”. Since 2015, the national threat level has not changed.

In this context, the government should clearly explain why removing the six year sentence threshold for conviction-based citizenship deprivation is necessary and proportionate. Given that the conviction-based citizenship-deprivation powers have not been used since their introduction, the need for a clear justification is particularly strong. The government’s media release states:

We now need to focus attention on strengthening the citizenship loss provisions which commenced in 2015 as they relate to terrorists within Australia, in order to protect our community.

As the Law Council has stated, this justification is not nearly strong enough.

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

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Think the dual citizenship saga does not affect state parliamentarians? It might be time to think again

It has been widely assumed that any dual citizenship problems are confined to the federal parliament. But that may need a rethink.
Shutterstock

Lorraine Finlay

Over the past year, we have seen 15 federal parliamentarians leave the Australian parliament because of dual citizenship.

Under Section 44(i) of the Australian Constitution – which has been given a strict interpretation by the High Court of Australia in recent cases – a person is not eligible to nominate for, or be elected to, the federal parliament if they are a dual citizen. The removal of such a large number of parliamentarians in such a short space of time is unprecedented.

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Parliamentary report recommends referendum to solve the dual citizenship saga: Here’s why it won’t happen

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Throughout this controversy, it has been assumed that any dual citizenship problems are confined to the federal parliament. Certainly, it is widely acknowledged that state constitutions do not contain the same general prohibition of dual citizenship, and that dual citizens are at least initially eligible to be elected to state parliaments.

Unfortunately, the analysis generally stops at this point. There has been little consideration given to the important follow-up question of whether there are any other disqualification provisions that might affect any dual citizens sitting in our state parliaments.

An examination of state constitutions (and relevant electoral laws) reveals that while a dual citizen is eligible to be elected, this citizenship status may subsequently put them at risk of disqualification if they engage with that foreign citizenship while serving in the parliament.

In particular, in New South Wales, Queensland, Western Australia and Tasmania, the state constitutions, or relevant electoral laws, provide that a parliamentary seat will become vacant if a member commits any act that acknowledges allegiance to any foreign power.

This disqualification does not apply in Victoria, the ACT or the Northern Territory, and in South Australia it has been expressly limited to make it clear it doesn’t apply in particular circumstances.

Clearly, these state provisions are substantially different from the dual citizenship prohibition at the national level. A dual citizen is eligible to be elected as a state member of parliament, and will only be disqualified if there is a positive action taken by them that acknowledges a foreign allegiance.

And that’s the pertinent question: what exactly constitutes an “acknowledgement of allegiance”?

A plain reading of this phrase would seem to suggest that any positive act that seeks to exercise any right arising from citizenship would be disqualifying. In essence, a person who seeks to rely on their foreign citizenship in some way (however trivial) is making an acknowledgement of that foreign allegiance. Some obvious examples would be travelling on a foreign passport, or even renewing a foreign passport.

If a state MP from NSW, Queensland, WA or Tasmania did either of these things, they would appear to be in breach of the state constitutional requirements, resulting in their disqualification from parliament.

This issue has been been flagged as a potential problem in the past. For example, leading constitutional expert Professor Gerard Carney suggested almost 20 years ago that if an elected state member

… subsequently acts to affirm the foreign citizenship, such as by renewing or applying for a foreign passport, disqualification will be incurred.

The question was also considered by the NSW Parliamentary Joint Committee on the ICAC, which recommended repealing this grounds for disqualification back in 1998.

This broad interpretation is further reinforced by the fact that South Australia saw a need back in 1994 to insert a qualifying provision into its state constitution to provide that members would not be disqualified simply because they acquired or used a foreign passport.

The fact that such a qualification was thought necessary highlights that acquiring or using a foreign passport will ordinarily fall into the category of being an “acknowledgement of allegiance”.

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Dual citizenship debacle claims five more MPs – and sounds a stern warning for future parliamentarians

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It is important to note these issues have never been tested before the state courts, and there is no particular evidence to suggest any current state parliamentarians are in breach.

It is also worth noting that some jurisdictions – notably Queensland – have provisions that allow parliament to resolve to disregard a “trivial” disqualifying event.

But given we are having a national conversation about dual citizenship and the Australian Constitution, it seems an opportune time to consider the constitutional impact of dual citizenship at the state level as well. Otherwise, we may find we are still left with a constitutional cloud hanging over a number of state parliaments.

At the very least, the affected state parliaments should introduce a citizenship register like the one introduced last year by the federal parliament. Requiring citizenship information be disclosed is a necessary first step to reassure the public that the dual citizenship controversy will not expand to disqualify any of our state parliamentarians.

When the prime minister referred the question of Section 44 to the Joint Standing Committee on Electoral Matters, he did so on the basis that:

Australians must be assured that all members of the Australian Parliament are constitutionally eligible to serve.

The same principle must also apply to our state parliaments.

Lorraine Finlay, Lecturer in Law

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

Grattan on Friday: Bill Shorten faces a summer of uncertainty

Michelle Grattan, University of Canberra

It is not impossible that the Greens, who started the citizenship crisis with the resignation of then-senator Scott Ludlam, could end up winners from this fiasco that has cut a swathe through the parliament and threatens more havoc.

Wednesday’s reference to the High Court of Labor’s David Feeney, who holds the Melbourne seat of Batman, has certainly put a gleam in the Greens’ eyes.

Feeney hasn’t been able to produce the documentation to confirm the renunciation of British citizenship which he says he made a decade ago.

Unless the paperwork turns up or the High Court shows a leniency that hasn’t been in its nature recently, a byelection in Batman would give the Greens a big chance of installing a second MP to keep Adam Bandt company in the House of Representatives.

Bill Shorten is understandably livid about Feeney, who before the last election overlooked declaring a A$2.3 million house, only narrowly held off the Greens in his seat, and now, if he triggers a byelection, could reduce the opposition’s numbers. No wonder there’s speculation he’d be ditched as Labor’s candidate.

And Feeney’s rank carelessness, to describe it most charitably, comes on top of the recent new revelations about Labor senator Sam Dastyari’s conduct, showing how deeply the New South Wales numbers man has been in the thrall of the Chinese, in particular of a Chinese business benefactor.

It’s made for a very uncomfortable end to the parliamentary year for Shorten, who in previous months had most things breaking his way.

The citizenship crisis had taken a heavy toll on the government, with a minister and the Senate president gone from parliament, and the deputy prime minister and a Liberal backbencher forced to byelections.

To put things in perspective: yes, they all failed to do due diligence, but none of them compromised themselves in the way Dastyari did.

Now it’s Labor in the crosshairs. The situation of several of Shorten’s MPs – leaving aside the egregious case of Feeney – is problematic, and Shorten’s boast about Labor vetting processes is being seen as hubristic.

It will be months before Labor will know what damage the citizenship crisis might do to it.

It will be more contained if the High Court, when it considers the case of ACT senator Katy Gallagher who was also referred this week, accepts the ALP argument that an MP is constitutionally eligible provided they took reasonable steps to renounce foreign citizenship before nominating, even though confirmation didn’t come through by then.

If, however, the court were to find that the candidate needs the confirmation before they nominate, that could trigger byelections in three ALP seats (Braddon in Tasmania, Longman in Queensland and Fremantle in Western Australia) as well as in Mayo, held by crossbencher Rebekha Sharkie.

The Gallagher case will set a precedent for the other MPs with similar circumstances (although if Gallagher were knocked out her Senate position would be filled by a countback, not a byelection).

While byelection swings usually go against governments (Saturday’s result in New England notwithstanding), the thought of having to fight in the marginal seats of Longman and Braddon would make Labor nervous.

Even if it turned out that the only byelection were in Feeney’s seat, the strong prospect of a loss there would sour and distract Shorten’s new year.

Similarly, the extent of the fallout from the Dastyari affair is not yet clear.

There is no defence for Dastyari’s action in warning his Chinese benefactor that his phone was likely tapped, so they should talk outside. That was the core of the latest revelations, which came on top of earlier ones about Dastyari receiving financial largesse and toeing China’s policy line on the South China Sea.

But from Shorten’s point of view, dealing with the Dastyari issue is fraught.

All Shorten has done this time is strip him of what minor responsibilities he had.

It’s fanciful to think Shorten would ever contemplate trying to throw him out of the Labor Party, which would mean taking on the NSW right, and would reduce Labor’s Senate numbers.

But while Dastyari stays, Shorten is open to Coalition attacks and hostage to anything further that may come out – just when the government is cracking down on attempts by foreign interests to influence Australian politics. Dastyari might face an inquiry by the Senate privileges committee.

It would be a gift for Shorten if Dastyari were to decide rehabilitation is too long a road and he should look for other career opportunities.

The problems that Shorten currently faces highlight certain weaknesses that his critics identify in his political approach.

The citizenship issue shows the way he plays the tactical game relentlessly, with insufficient appreciation of how things can come back to bite you.

Of course Labor would make the most of the government’s embarrassment over its dual citizens, but Shorten left himself little wriggle room when he insisted for so long Labor was fireproofed, despite warning signs it mightn’t be.

When its vulnerability was exposed this week, Shorten doubled down. After all MPs’ declarations became public, Shadow Attorney-General Mark Dreyfus produced a list of Coalition members who Labor said hadn’t supplied enough evidence that they were not dual citizens. One was Josh Frydenberg, whose mother had been fleeing persecution. Frydenberg’s inclusion in the Dreyfus list brought rebukes from two Labor MPs.

This was followed by Labor’s unsuccessful attempt to refer four Liberals (not including Frydenberg) to the High Court, as well as four of its own and Sharkie.

The move on the Liberals looked like seeking cover, especially when one of them, Nola Marino, produced a letter from Italian authorities saying she did not have Italian citizenship.

Surely it is adequate to rely on a country’s word that someone is not a citizen? Certainly Labor’s deputy leader Tanya Plibersek is using a letter from Slovenian authorities.

The Dastyari affair raises questions about how far Shorten is willing to go for those who are politically important to him.

Dastyari had to leave the front bench after the initial revelations about his Chinese links.

But within months he was given a partial leg up, becoming deputy opposition whip in the Senate. This seemed undue haste, and it raises concerns about Shorten appearing beholden to his allies. We see another example in his refusal to take a tougher line towards the Construction, Forestry, Mining and Energy Union.

Despite the setbacks, Shorten is still very well-placed, compared with Turnbull, as the end of 2017 approaches, although the December 16 Bennelong byelection will play into this balance.

Nevertheless, it is Shorten, rather than Turnbull, who appears to face the bigger uncertainties in the early part of 2018.

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Michelle Grattan, Professorial Fellow, University of Canberra

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

High Court to rule on two Labor MPs, but partisan row protects others

Michelle Grattan, University of Canberra

A batch of MPs escaped being sent to the High Court on Wednesday thanks to a stalemate between the government and the opposition over who should be referred.

But the eligibility of two Labor MPs will be considered by the court – Victorian David Feeney and ACT senator Katy Gallagher.

The opposition failed in an attempt to get a “job lot” of MPs referred that included four Liberals, four from the ALP, and the Nick Xenophon Team’s Rebekha Sharkie.

The ALP motion was supported by all five crossbenchers, resulting in a tied vote of 73-73. The Speaker, Tony Smith, acting in line with parliamentary convention, used his casting vote to defeat the motion.

The government, insisting that none of its MPs should be referred, wanted the members considered individually.

But crossbenchers rejected that argument, seeing it as the government being partisan.

The government said it would continue to talk to the crossbenchers overnight but they are not likely to be swayed before parliament rises this week for the summer recess.

The Labor MPs in the opposition motion were Justine Keay, Josh Wilson, Susan Lamb and Feeney.

The case of Gallagher – who took action to renounce her British citizenship but did not get registration of her renunciation before she nominated for the 2016 election – should provide guidance in relation to the three other Labor MPs and Sharkie, who have similar circumstances.

Labor argues that those who had taken reasonable steps to renounce but did not receive their confirmations in time (or, in Lamb’s case, at all) are eligible.

Feeney is in a different category from the other Labor MPs – he has not been able to provide evidence that he renounced his British citizenship in 2007, as he says he did. He was referred after the job-lot motion’s defeat.

Both Gallagher and Feeney accepted they should be referred. Gallagher, while maintaining her eligibility, told the Senate she was standing aside from her frontbench positions and had asked to be referred to the court, saying her opponents would continue to use the issue.

Labor said the four Liberals – Jason Falinski, Julia Banks, Nola Marino and Alex Hawke – had not provided adequate documentation of their eligibility.

In the run up to the vote, Marino released advice from the Italian consulate saying she was not an Italian citizen.

Falinski produced advice saying that he was not a citizen of the UK, Poland, Russia or Kyrgyzstan. But the letter to Falinski was dated Wednesday and the law firm, Arnold Bloch Leibler, said that “as previously discussed, we cannot conclusively advise on foreign law and recommend that you seek independent advice from foreign law experts”.

The crossbenchers were lobbied hard over the motion, including on the floor of the chamber, by both the opposition and the government.

Labor made an unsuccessful attempt to get its motion dealt with before Barnaby Joyce, who has just faced a byelection after the High Court declared him ineligible to sit, returned to the lower house.

Labor had a temporary majority but did not have enough time. Joyce was sworn in at 1.15pm and his presence in the subsequent debate meant the numbers were tied.

Moving the motion, Manager of Opposition Business Tony Burke said: “The only appropriate way for us to deal with this is to make sure that, wherever there has been serious doubt across the chamber, the High Court becomes the decision-maker rather than the numbers on the floor of this house”.

Arguing for a case-by-case approach, Malcolm Turnbull said that Labor “with not a principle in sight, with not a skerrick of evidence … wants to send members of the House to the High Court … without making any case that they are, in fact, dual citizens”.

The Greens’ Adam Bandt said the approach must be “even-handed and non-partisan”. “We think there should be an agreed set of names that go forward from this house.”

Sharkie, appealing for unity, said: “We will hang individually if we don’t hang together”.

Crossbencher Bob Katter told the parliament that none of the MPs should be sent to the High Court.

Labor leader Bill Shorten revealed that he had known for just over a week that Feeney didn’t have the required documents.

“I informed him that he needed to tell the parliament what was happening, and I made it clear to him that there was a deadline of disclosure,” Shorten told reporters.

Feeney has said he is still trying to have the British authorities find documentation that he renounced UK citizenship.

If Feeney is disqualified, Labor would be at risk of losing his seat of Batman to the Greens. There is doubt over whether he would be the candidate in a byelection.

Shorten did not disguise how angry he is with Feeney. “I am deeply frustrated – that’s a polite way of putting it – that one of my 100 MPs can’t find some of the documents which, to be fair to him, [he] says exist and says he actioned,” Shorten said.

He admitted that if he had been aware of Feeney’s situation he would not have been so definite in his repeated confident statements about the eligibility of all his MPs.

Labor was divided internally over whether it should pursue Josh Frydenberg, whose mother came to Australia stateless: the Burke motion did not include him. The ALP is also not at this point pursuing another of those it has named, Arthur Sinodinos, who is away on sick leave.

https://www.podbean.com/media/player/hdjfk-7dce11?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.

Near enough may not be good enough as parliament’s dual citizenship crisis deepens

Labor senator Katy Gallagher has been referred to the High Court over her possible dual citizenship status.
AAP/Lukas Coch

Lorraine Finlay, Murdoch University

Over the past five months, a growing of numbers MPs elected at the 2016 federal election have either been disqualified or resigned from parliament because of dual citizenship issues.

This extraordinary chain of events started back in July with the resignation of Greens senator Scott Ludlam. It looks set to continue into 2018, after the publication of citizenship registries revealed several more MPs have serious dual citizenship questions to answer.

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Further reading: New blow for Labor as David Feeney hits citizenship hurdle

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Among those likely to be referred to the High Court are several senators and MPs whose citizenship declarations show they were technically still dual citizens when nominations closed before the 2016 federal election, but who claim they had personally taken all reasonable steps to renounce their dual citizenship before that date.

This group includes Labor’s Katy Gallagher (who has been referred to the High Court already), Justine Keay, Susan Lamb and Josh Wilson, and the Nick Xenophon Team’s Rebekha Sharkie.

All reasonable steps?

Several of these MPs have received legal advice suggesting they will not be disqualified under Section 44 of the Constitution because they had taken all reasonable steps to renounce their dual citizenship before nominating as an election candidate.

For example, all appear to have completed their renunciation paperwork and paid the required fee before nominating, but were waiting on the British Home Office to register the renunciation. They did not receive formal confirmation of their renunciation until after the election.

Under British law, citizenship does not cease until the secretary of state actually registers the declaration of renunciation.

In order for someone personally taking “all reasonable steps” to be eligible – in circumstances where that renunciation has not actually been accepted – the High Court would need to take a flexible view of Section 44’s wording.

The court has never been asked to directly consider this precise set of circumstances before, so nobody can be entirely sure what it would find. But given the strict reading of Section 44 adopted in recent cases, it would not be surprising if these five MPs were all found to be disqualified.

In the case of the “Citizenship Seven”, the court unanimously found that the dual citizenship provision is “cast in peremptory terms”. This means it sets out a definite obligation in clear and certain words.

While the court found there would be cases where someone who had taken “all reasonable steps” to renounce dual citizenship would not be disqualified, this was not a test of general application. Rather, it was a specific exception that applied where the law of a foreign country prevented someone from renouncing their foreign citizenship, or made it unreasonably difficult for them to do so.

This was based on the constitutional imperative that an Australian citizen should not:

… be irremediably prevented by foreign law from participation in representative government.

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Further reading: The High Court sticks to the letter of the law on the ‘citizenship seven’

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None of the five MPs mentioned above were “irremediably prevented” from renouncing. Instead, they had failed to do so in enough time to have the renunciation registered before the required date. So, it is difficult to see the court accepting that the British renunciation procedures were so unreasonable that they amounted to someone being “irremediably prevented”.

Taking this approach, the only fact that will matter is that these MPs were all still actually dual citizens at the time of nomination. On this basis, they would all be disqualified.

To escape disqualification, they will need the court to extend the “all reasonable steps” exception to every case of dual citizenship. It is open to the court to do this, but the recent decisions in relation to both the Citizenship Seven and Hollie Hughes suggest a stricter approach.

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Further reading: High Court strikes again – knocking out Hollie Hughes as replacement senator

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This means it is entirely possible that Gallagher, Keay, Lamb, Wilson and Sharkie will all be declared ineligible. At the very least, there is a real question to be answered about their eligibility.

That it has taken more than five months and a compulsory declaration procedure for this to come to light reflects extremely badly on these MPs.

Previous ineligibility

The citizenship registers have also revealed that there are several MPs who were eligible at the time of the 2016 federal election but who appear to have had dual citizenship issues for at least part of a previous parliamentary term. This includes Greens senator Nick McKim, Labor senators Alex Gallacher, Louise Pratt and Lisa Singh, and Liberal senator Dean Smith.

Since they relate only to previous parliamentary terms, none of these cases will be referred to the High Court. However, these MPs’ conduct should not escape criticism.

Again, that it has taken more than five months and a compulsory declaration procedure for these cases to come to light is highly disappointing.

The real issue here isn’t one of dual citizenship, but rather the honesty and integrity of our MPs. The dual citizenship issue is likely to be fixed in the future through greater candidate awareness and political parties undertaking stricter vetting processes. The loss of trust between the Australian people and their MPs is much harder to fix.

Lorraine Finlay, Lecturer in Law, Murdoch University

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

New blow for Labor as David Feeney hits citizenship hurdle

Michelle Grattan, University of Canberra

Labor has been dealt a further blow in the citizenship crisis, with Victorian MP David Feeney flagging his status is likely to go to the High Court because evidence cannot be found that he has renounced his British citizenship.

This follows confirmation on Monday by Labor senator Katy Gallagher that she was still a British citizen when she nominated for last year’s election, although she had taken steps to renounce.

If Feeney were found ineligible, Labor would be at high risk of losing his Melbourne seat of Batman to the Greens.

Last year Feeney beat Greens candidate Alex Bhathal by a whisker; the two-candidate vote was 51-49%. The Greens won the recent byelection for the state seat of Northcote, which is within Feeney’s electorate.

At the crossbench Christmas party in Parliament House, the Greens had a toast to Batman.

As the declarations of House of Representatives MPs were posted online, Feeney told parliament that while in 2007 he had signed documents to renounce any citizenship rights he might have inherited from his father – who was born in Northern Ireland – the British authorities could not locate his notice of renunciation. He had been informed they did not keep records for such a long period.

He said he still had inquiries outstanding with the UK, and had also sought past bank records to determine whether he had made a payment that was processed by the UK Home Office at the time.

While “to the best of my memory from a decade ago” he had sent the paperwork to both the UK and Ireland, and could confirm he was not an Irish citizen, “I accept that I have been unable to produce the requisite notice of renunciation with the respect to the United Kingdom”, he said.

“I remain hopeful that continuing searches of the UK records and archives will clarify this issue in my favour. Nevertheless, I accept that at this moment my status as a citizen in UK law remains unclear. On that basis, if I have still been unable to locate the relevant documents by the time this issue is dealt with by the House of Representatives, I will be asking the manager of opposition business to refer this matter to the High Court,” he said.

Feeney caused Labor embarrassment before the last election when it was revealed he failed to declare a house he owned worth more than A$2 million.

Finance Minister Mathias Cormann accused Opposition Leader Bill Shorten of concealing Feeney’s position.

“You’ve got to assume that Bill Shorten has known for some time that David Feeney had this problem and really it just completely exposes his dishonesty and his hypocrisy when it comes to this issue,” Cormann said on Sky.

Feeney recently deleted a tweet in which he had said: “Noticed how the Turnbull govt has strangely stopped mocking the Greens Party for incompetence and sloppiness?”

The citizenship declarations confirm that Labor MPs Josh Wilson and Justine Keay had not had their renunciations of British citizenship registered by the time of nomination. Another Labor MP, Susan Lamb, had tried to renounce, but the UK said it was not satisfied she held British citizenship.

The Nick Xenophon Team’s Rebekha Sharkie did not receive her confirmation of renunciation in time.

The government and Labor are now in talks about referrals to the High Court. Referrals will be made before parliament rises later this week.

Labor, thrown on the back foot in the ongoing crisis, lashed out at the government with Shadow Attorney-General Mark Dreyfus claiming Malcolm Turnbull was “covering up” for as many as seven government MPs who could have constitutional problems. These MPs had not provided the needed evidence to prove they weren’t dual citizens, he said.

Dreyfus’ list included:

• Jason Falinski, who said he made inquiries from the Polish consulate and had legal advice but had not provided it.

• Josh Frydenberg, who said he had received Hungarian, Polish and Australian legal advice but hadn’t produced it.

• Nola Marino, who said she had legal advice to show she was not Italian but did not provide it.

• Julia Banks, Alex Hawke, Michael McCormack and Arthur Sinodinos, who all had “an unconvincing letter” from the Greek embassy and “refuse to provide legal advice”.

“The Liberal and National MPs who have not been forthcoming with all available evidence must either seek to update their incomplete disclosures as soon as possible, or refer their eligibility to the High Court,” Dreyfus said.

Falinski rejected the demand to produce legal advice saying to do so would “pierce legal and professional privilege” and others hadn’t done so. He accused Dreyfus of playing “base politics to obscure the truth”.

Update

On Wednesday morning Gallagher announced to the Senate that she had asked for her eligibility to be referred to the High Court. She said she was standing aside from her portfolio responsibilities within the shadow cabinet and her role as manager of opposition business in the Senate until her case was resolved. She insisted she was eligible to sit in the Senate but said it was clear the government had decided she should be referred and her political opponents would continue to use the issue.

https://www.podbean.com/media/player/hdjfk-7dce11?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.