Shadow minister Katy Gallagher was British when she nominated for 2016 election


Michelle Grattan, University of Canberra

Labor frontbencher Katy Gallagher can expect to be referred to the High Court after the release of senators’ citizenship declarations on Monday confirmed the ACT senator was a British citizen when she nominated for the 2016 election.

But she says she will not refer herself to the court because her legal advice was that she had taken all the steps required of her before she nominated – even though her renunciation of foreign citizenship wasn’t registered until later.

The declarations of all senators were posted online on Monday. House of Representatives MPs must produce their declarations by Tuesday morning; these will be made public within a day or so.

Gallagher, who entered the Senate via a casual vacancy during the previous term, is one of several Labor MPs likely to be referred to the court, as the citizenship crisis turns on the opposition.

The government has indicated it will refer Labor MPs who had not had their renunciations confirmed by nomination day. In these cases, the MPs took steps to renounce foreign citizenship and will argue they did all that was required.

Others likely to be referred are Justine Keay, who holds the Tasmanian seat of Braddon, and Josh Wilson, the member for Fremantle in Western Australia.

Susan Lamb, the member for Longman in Queensland, has also been targeted by the government, although her case is more complicated. She has said the British Home Office questioned whether she held citizenship to renounce, and asked for more paperwork which she could not supply.

The government says Labor should refer any of its own people whose status is in doubt. Labor has attacked the threat to refer Labor MPs but it is not disclosing what position it will ultimately take.

Sydney University constitutional expert Anne Twomey says Labor will need the court to take a liberal rather than a strict legal interpretation of the Constitution if it is to avoid byelections in its seats.

She said the ALP would have a “reasonable case” to argue in the court. But it was hard to predict how the decisions would go because there had been mixed messages.

In the 1992 Sykes v. Cleary case the court had indicated a nominee only had to take the reasonable steps within their power to renounce their dual citizenship.

But in remarks the court had made in one of the recent cases, its reference to reasonable steps was in the context of circumstances where the other country would not acknowledge renunciation. It was unclear whether this was because the court was now taking a stricter view of the test or whether it would uphold the authority of the Cleary case, Twomey said.

She said the court might also take a different view where a candidate had purposely delayed initiating action to renounce, from a case where they had been chosen late in the piece and then acted with all speed.

Keay has admitted waiting some time after she was advised by the Labor party to divest herself of her British citizenship. She has said: “I delayed it – it’s one of those things with the citizenship I knew I could never get it back”.

She told the Burnie Advocate: “If I didn’t get elected I can’t get my citizenship back and for me, it was a very personal thing”, saying it was the last tangible connection with her father.

On the other hand Wilson – who replaced another candidate at the last minute – was only endorsed by his party on May 12, 2016, for the July 2 election, and completed the renunciation paperwork the same day.

Early in the citizenship crisis Bill Shorten repeatedly declared publicly the opposition was confident that none of its MPs would be vulnerable, saying it had a comprehensive vetting process. More recently Labor has become nervous.

Shorten’s concern was clear to Malcolm Turnbull when they met some weeks ago about the citizenship crisis, which has now claimed victims across the political spectrum – although so far no Labor MPs.

The Nick Xenophon Team’s sole lower house member, Rebekha Sharkie, who holds Mayo in South Australia, is also facing referral. She too did not get her renunciation formalised before nomination.

It is not known whether there are further lower house MPs with possible dual citizenship at the time of nomination. Turnbull said at the weekend he was confident there were not any more Coalition MPs who had been dual citizens.

The ConversationThe declarations of senators indicated that several had been dual citizens in the last parliament before getting their affairs in order for the election.

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Michelle Grattan, Professorial Fellow, University of Canberra

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

Citizenship crisis claims Nick Xenophon Team’s Kakoschke-Moore


Michelle Grattan, University of Canberra

Nick Xenophon Team senator Skye Kakoschke-Moore has resigned from parliament after being advised she is a British citizen via her mother, in another blow to the party.

The NXT has three Senate spots, as well as one member in the House of Representatives, Rebekha Sharkie – whose future is under a cloud in the citizenship crisis.

A tearful Kakoschke-Moore said she was “heartbroken” by the news. She had previously not believed she had British citizenship and had only checked when preparing the declaration to be presented to parliament.

Her mother was born in Singapore to British parents, and migrated to Australia with her family.

“Usually where a parent is born outside of the UK they are unable to pass their citizenship on to their children where those children are also born outside of the UK. It was my understanding for my entire life that I was not eligible for British citizenship due to that rule.”

When she was living in Oman as a child her father had inquired whether she was eligible for a British passport and was told she was not because she wasn’t eligible for citizenship. “We had no reason to doubt that this advice was incorrect.”

But the British Home Office had now advised her that, through a complicated train of circumstances, her mother became a British citizen under British legislation of the early 1980s “and I am therefore a British citizen under … the British Nationality Act 1981”.

She said she would ask that her case be referred to the High Court.

The issue is particularly complicated for the NXT because the next candidate on its ticket, Tim Storer, is no longer in the party after falling out with it.

Storer had wanted to replace Nick Xenophon when he quit the Senate for state politics. But it was a casual vacancy and Xenophon was able to appoint his staffer, Rex Patrick.

Xenophon told a joint news conference with Kakoschke-Moore that preliminary legal advice was “that we’re in uncharted legal territory as to whether it would be a countback or some other mechanism of dealing with this” vacancy.

The NXT will argue that Storer should not get the spot because he is no longer in the party. But Anne Twomey, constitutional expert from Sydney University, said she very much doubted the argument would fly.

Xenophon said he hoped that Kakoschke-Moore would be back in the Senate soon, at least after the next Senate election.

He said Kakoschke-Moore’s circumstance was completely different from that of Sharkie – who didn’t receive her confirmation of renouncing her British citizenship until after her nomination went in.

The British Home Office had pocketed her money before the nomination, Xenophon said. He said the initial legal advice was that she was in very strong position.

“There may be a referral. I think that what we’ll expect to see in coming days is a whole stack of referrals to the High Court from people from the major parties and crossbench as well.”

The ConversationKakoschke-Moore is the ninth member of the federal parliament to have either resigned or been knocked out by the High Court over being a dual citizen at the time of nomination.

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Michelle Grattan, Professorial Fellow, University of Canberra

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

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



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

Joe McIntyre, University of South Australia

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

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

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

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

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This issue will continue to dog all future parliaments.

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

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

Current version of Section 44.

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

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

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

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

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

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

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

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

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

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

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

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

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

Proposed version of Section 44.

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

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

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

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

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

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

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

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


Michelle Grattan, University of Canberra

The High Court has ruled out Liberal Hollie Hughes as a replacement for former Nationals senator Fiona Nash on the ground that she had an office of profit under the Crown during the election period.

Once again, the court has taken a very literalist approach to the Constitution. Hughes was appointed to the Administrative Appeals Tribunal this year but quit immediately after the court declared Nash ineligible to sit in parliament because she had been a dual British citizen when she nominated.

Hughes’ problem was that the election period is considered to extend until the seat is filled. The court did not accept the argument of Commonwealth Solicitor-General Stephen Donaghue that “the process of choice ends with the poll”.

Hughes was the next candidate on the Coalition joint ticket for New South Wales for the 2016 election and was set to get the position on the recount. The seat is now expected to go to Jim Molan, the following candidate on the ticket.

There would be some irony in his election because he had been pushed to an unwinnable position on the ticket, but still managed to get more than 10,000 votes personally.

Molan, a former senior military officer, was key in the shaping of the Coalition’s border protection policy.

He has been one of those at the forefront of the move within the NSW Liberal division to get a more democratic structure. He has put himself forward as a candidate for state president when the party’s state council meets in December to consider reforms that were passed by a rank-and-file convention earlier this year.

Molan said late on Wednesday that it was too early to say much about the Senate seat beyond “I believe I am eligible and I would take the job if it were offered”. He had no citizenship problems nor did he have any office of profit under the Crown, he said.

The ConversationThe High Court will publish its reasons later.

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Michelle Grattan, Professorial Fellow, University of Canberra

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

Shorten goes for broke in byelection with mega stakes for Turnbull


Michelle Grattan, University of Canberra

Kristina Keneally’s entry into the Bennelong byelection has put more sizzle into a contest already up there as potentially one of the most significant byelections in recent years.

A decade ago Maxine McKew took the Sydney seat from John Howard, in the general election won by Labor.

If Keneally could wrest the electorate once again for Labor, the opposition would inflict a massive blow on the Coalition. Possibly one that would spell the end of Malcolm Turnbull’s leadership. A defeat would, in short, be catastrophic for the government.

On the other hand, if the swing against the Liberals was limited, that would help a besieged government and put some heart into its backbench.

Byelections can be seminal political moments. The Liberals’ loss of the Queensland seat of Ryan in 2001, with a 9.7% swing – the precise margin Bennelong is on – galvanised an embattled Howard. Retaining the Victorian seat of Aston a few months later (with a swing of only 3.7%) was seen as something of a turning point for the government.

In 2015, then prime minister Tony Abbott faced the Canning byelection in Western Australia, with the shadow of Malcolm Turnbull’s ambition hanging over him and warnings of dire consequences if the seat fell. When party polling suggested it would be saved, Turnbull pre-empted a positive result by launching his challenge before polling day.

John Alexander, 66, who fell foul of the dual citizenship crisis so creating this byelection, won Bennelong from McKew in 2010. The one-time tennis star hasn’t reached the frontbench and is rarely in the national news – though he did arc up on housing affordability.

But he is locally active and popular; in the difficult 2016 election he achieved a swing toward him. There had been speculation this might be his last term in parliament – he’d sold his home in the electorate – but now he’s committed to contesting the next election if he wins the byelection. He has said his move was downsizing and that he’s looking for an apartment in the seat.

Appearing with Bill Shorten on Tuesday, Keneally was careful to declare Alexander “a lovely guy”, though sloppy with his paperwork. He has to tie up his renunciation of British citizenship before nominating – presumably the UK bureaucrats are not dawdling.

In tapping Keneally to run, Shorten has both gone for the big hit and taken a gamble. The former NSW premier is well-known, media-savvy and campaign-hardened. She’s most recently worked for Sky; she’s in practice at talking a lot and thinking on the run. In political terms, she’s the quintessential star candidate.

But her background is from the bad times of NSW Labor politics, the days of Eddie Obeid and Ian Macdonald, both in jail, and Joe Tripodi. The Labor premier she displaced, Nathan Rees, said his successor would be a “puppet” of Obeid and Tripodi, to which she retorted “I am nobody’s puppet … I am nobody’s girl”.

The Coalition has an arsenal to use against her, and has immediately started to fire its bullets.

“Don’t let Kristina Keneally do to Bennelong what she did to New South Wales,” Turnbull said from the Philippines. “She is Bill Shorten’s handpicked candidate, so obviously Eddie Obeid and Bill Shorten have formed the same view about Kristina Keneally.” Ministers Greg Hunt and Scott Morrison had similar lines.

At this early stage no-one can be confident in predicting how this battle might go. There are more questions than answers.

To what extent can the Coalition exploit Keneally’s past if voters just want to lodge a protest against the Turnbull government? How far back will memories stretch, especially when there was no suggestion Keneally was corrupt?

Will state issues play into the campaign, and will the contest become more “local” as time goes on? How important will be the ethnic vote, in particular the big local Chinese community? Will voters sympathise with Alexander over his citizenship oversight, or will they mark him down for an unnecessary byelection?

The ABC’s election analyst Antony Green believes that despite the size of the margin “it’s a competitive contest given the polls and given the profile of Labor’s candidate”. As for Keneally’s past, “it’s the baggage of the current federal government that is the issue rather than the baggage of the state Labor government she led six years ago”.

Labor will run a well-resourced campaign. Shorten doesn’t have as much at stake as Turnbull, but once committed to a nationally known candidate and a high-profile campaign he would be burned by a poor Labor showing.

The December 16 Bennelong result will come after the December 2 New England byelection, which will return Barnaby Joyce, and the Queensland state election, where the outcome is uncertain. It will also follow the internal Coalition arm-wrestle over the detail of implementing same-sex marriage.

The ConversationEach will play into the government’s fortunes, but the Bennelong outcome might be the most important in how Turnbull goes into the new year.

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Michelle Grattan, Professorial Fellow, University of Canberra

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

Cormann and Shorten reach deal on citizenship disclosure


Michelle Grattan, University of Canberra

The government has agreed to Labor’s December 1 deadline and tougher conditions in a deal on MPs citizenship disclosure clinched between Opposition Leader Bill Shorten and deputy Senate leader Mathias Cormann on Monday.

The agreement comes after last week’s haggling over timing and the terms of disclosure, and a meeting and an exchange of sharp letters between Prime Minister Malcolm Turnbull and Shorten. It paved the way for an immediate motion in the Senate and one in the House of Representatives after it returns on November 27.

Under changes obtained by Labor, MPs will have to go back as far as their grandparents and say what steps they have taken to confirm that they did not inherit foreign citizenship from their parents and grandparents.

The original proposal by Turnbull only went back as far as parents. It required only that MPs stated when they nominated they were not, to the best of their “knowledge and belief”, a citizen of any other country.

The resolution includes a provision requiring an MP who at the time of nomination, was a foreign citizen (or is currently), to state on what basis they contend they should not be disqualified under Section 44(i) of the Constitution.

This covers the situation of several Labor MPs, who took steps to renounce their foreign citizenship but did not receive confirmation before they nominated. Labor has legal advice these MPs are safe; the government has advice they are breaching the Constitution.

Labor claimed it got all it wanted in the deal; the government claimed the ALP wished to include further clauses designed to clear MPs on the basis that they had taken “reasonable steps” to renounce dual citizenship.

The government compromised twice in bringing forward the date of disclosure. Most recently it was saying it should be December 7.

A later disclosure date would have required a special recall of parliament to consider any referrals to the High Court. These will now be able to be dealt with in the last week, starting December 4, of the current timetable.

The government is flagging it will refer up to four Labor MPs to the court, although it is not clear whether it will wait to do this until the December 4 week, or seek to move the week before.

In the Senate, Australian Conservatives leader Cory Bernardi claimed a senator was ineligible to sit and the government was aware of it. The senator in question is not a member of the government. Tasmanian crossbencher Jacqui Lambie’s eligibility has been questioned in recent days.

Meanwhile, a ministerial vacancy has opened with the elevation of Scott Ryan to the Senate presidency on Monday morning. Ryan has been special minister of state.

Turnbull will reshuffle his ministry at some later point, in what are expected to be quite extensive changes. The High Court’s recent disqualification of the Nationals Fiona Nash has opened another vacancy. In the meantime, Cormann will take over responsibility for the special minister of state portfolio.

The byelection for the seat of Bennelong, vacated by John Alexander who believes he had dual citizenship, will be held on December 16. Alexander will have to free himself of his UK citizenship before nominations close for the byelection.

Shorten told a meeting of Labor senators: that Labor was “behind the eight ball” in Bennelong, where the Liberals have a margin of nearly 10%.

“But we are going to give it every effort,” he said, defining the battle as “about the direction in which the nation is headed.

“One point we will be making in Bennelong is that because of the increasing and disturbing closeness and proximity between One Nation and the Liberal Party, that a vote for the Liberal Party in Bennelong is effectively a vote for One Nation on the national stage.

“When you look at One Nation’s voting record in the Senate, nearly 90% of the time they are voting with the Liberals.

The Conversation“So for the voters who think they are voting for One Nation as a protest against the Government, they are not. And for people who vote Liberal because they don’t agree with some of One Nation’s extreme views, they are, in fact, endorsing them,” Shorten said.

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Michelle Grattan, Professorial Fellow, University of Canberra

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

Sharkie told by Turnbull she may have to go to High Court



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Rebekha Sharkie was registered as renouncing her UK citizenship after she nominated for election.
Mick Tsikas/AAP

Michelle Grattan, University of Canberra

Malcolm Turnbull has told Rebekha Sharkie, the Nick Xenophon Team’s sole member in the House of Representatives, that her eligibility may have to be determined by the High Court.

Sharkie, born in Britain, was registered as renouncing her UK citizenship after she nominated for last year’s election, although she started the process a good deal earlier.

Turnbull rang her on Thursday before he left for the APEC meeting in Vietnam. Sharkie had been in the media saying she wanted to meet him about the citizenship crisis.

She said in a statement that he asked her about dates. She completed her forms on April 19 last year; the material was sent express international post. On June 2 the Home Office acknowledged her application had been received. She nominated for Mayo on or about June 7. The Home Office registered her renunciation on June 29.

Under Section 44(i) of the Constitution a person is ineligible to nominate for election to federal parliament if they are a dual citizen.

Sharkie, who said she had been open throughout about her citizenship status, produced documentation, and supported a full audit of MPs, said: “The prime minister in our conversation suggested I may have to refer myself to the High Court”.

“I believe that I took all steps that were required by the UK to renounce any entitlement to UK citizenship, that were within my power to take. I had no control as to the speed at which the UK Home Office processed my application but I note that well over a month would have passed before I actually nominated for the seat of Mayo.”

Sharkie is the latest name to be canvassed in the list of parliamentarians who might be ineligible to sit in parliament, following those of Tasmanian crossbench senator Jacqui Lambie and assorted Liberal and Labor MPs.

Liberal backbencher John Alexander is waiting for Home Office advice as to whether he is a British citizen by descent. Labor’s Justine Keay and Susan Lamb are in similar circumstances to Sharkie.

Meanwhile, Bill Shorten and Turnbull escalated their fight over the disclosure resolution the government plans to put to parliament and related issues – although Turnbull also signalled he expects to reach agreement with Shorten about the disclosure requirements.

Labor wants to toughen the terms of the disclosures MPs have to make and to put a December 1 deadline on them.

In a wide-ranging letter to Turnbull, Shorten sought a commitment the government would not use its numbers to make “partisan referrals” to the High Court; Labor also wanted a commitment that any ministers referred would stand aside from the ministry.

As well, he asked that Communications Minister Mitch Fifield, who knew of former Senate president Stephen Parry’s likely British citizenship before it was revealed and then confirmed, should be referred to the privileges committee.

Shorten rejected a Turnbull proposition that only non-controversial legislation be considered for the rest of this year. While the New England byelection is on, the government does not have a working majority in the lower house.

Turnbull has compromised on his original longer timetable, now saying December 7 is an appropriate deadline for the declarations. The lower house could then consider the declarations, take legal advice and “resume the following week to determine the matter of referrals”, he said in a letter to Shorten, composed on the VIP aircraft on the way to Vietnam.

Turnbull made it clear that the government would refer Labor members to the court.

“You appear to be asking me to not refer to the High Court Labor members who were UK citizens at the time of nomination but claim that lodging a renunciation declaration prior to that nomination protects them from disqualification,” he wrote.

“I cannot give you that assurance. The government will vote to refer any individual to the High Court if there are substantial grounds for believing they are in breach of the Constitution.”

He said the proposition that Fifield was in breach of privilege was “absurd”.

But despite earlier fiercely attacking Shorten for playing politics, Turnbull wrote that “nonetheless we are not far apart in terms of the nature of the disclosures sought. As you know in the course of our meeting when your anxiety about your dual citizen MPs became apparent, I offered to include a section of the disclosures for them to foreshadow the arguments they would put to the High Court if referred.”

The ConversationTurnbull said the government would consider Shorten’s revised wording of the disclosure overnight “and hope to resolve this tomorrow”.

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Michelle Grattan, Professorial Fellow, University of Canberra

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

Grattan on Friday: Voters just want citizenship crisis fixed – but it isn’t that easy



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There was much cynicism about Malcolm Turnbull resisting a full audit.
James Ross/AAP

Michelle Grattan, University of Canberra

The citizenship crisis is politics at its worst, has been unresolved far too long, and is a distraction from much more important issues. That’s the view from the real world, reflected by voters in focus groups this week.

As Malcolm Turnbull and Bill Shorten play politics over a disclosure motion to be put to parliament, these ordinary people are baffled and impatient with the whole affair.

While the four groups of “soft” voters (two each in Brisbane and Townsville) were part of a Queensland election study for the Institute for Governance’s research at the University of Canberra, the dual citizenship imbroglio was raised unprompted and the comments give an insight into ordinary Australians’ thinking about the fiasco engulfing the parliament in general and the Turnbull government in particular.

People are mystified by the fallout from the High Court decision, especially when citizenship of Britain, Canada or New Zealand is involved. As one participant put it: “It’s not like they’re aligned with some enemy”.

For many, the Constitution is out of date, failing to reflect modern Australia, and should be changed. “Australia is a young country so we’re going to have a mixed bag,” said a female flight attendant from Brisbane.

There’s also concern about money. “This business of saying you’re going to have to quit parliament – it’s going to cost a bomb,” a retired Brisbane woman complained.

People do differ, however, about the substance of the issue. Some think the consequences have been too severe, or invite ridicule. “It’s making Australia the laughing stock of the world,” said one.

A few were judgemental, taking the attitude the law is the law and candidates should have checked they met the rules. A retired Brisbane man was blunt: “We wouldn’t even be in this situation if they weren’t negligent”.

In terms of MPs rectifying their status, some voters thought the inadvertent dual citizens should be allowed to correct their situation without having to resign – “just renounce their citizenship and go on with it”, as one put it. If only it were so easy – unfortunately, that path is no answer constitutionally. The test is a person’s eligibility when nominating.

Some people favoured definitive action, such as a comprehensive audit or a fresh election. A Townsville retiree believed “they should have a full, complete audit of all federal politicians, of current and future ones, to make sure you comply with Section 44”.

There was much cynicism about Turnbull resisting a full audit. A young Brisbane voter opined that it was “probably because he’s hiding people”; another said the prime minister had not got a big enough parliamentary margin “to be sure that he’s going to keep the power”. More generally, a Townsville health worker condemned “a lame-duck federal government not achieving anything”.

The bottom line is that voters want the matter fixed quickly. “We don’t want this distraction to stretch for another two months. It’s just dumb,” declared a Brisbane engineer, while a young female occupational therapist from Townsville said: “I’d like them to get it finished and done with so they can look at other issues. … Let’s just finish it”.

Given the paralysing effect of the crisis, with multiple names now being tossed into a cauldron of uncertainty, tactical skirmishing can only become increasingly unacceptable to the public. Yet even if the games were put aside, this nightmare can’t be resolved fast, despite the voters’ frustration.

It demands both short-term and permanent solutions.

Most immediately, bipartisan agreement is required on the disclosure regime, with parliamentary decisions before Christmas on whatever High Court referrals are to be made. The leaders have been fighting and posturing over the detail but agree on pre-Christmas action.

Any MPs in obvious breach should resign at once – the recent cases have set benchmarks with brutal clarity. If that happened with lower house members, court referrals wouldn’t be needed. If senators quit, the court would formalise their disqualifications and order recounts to fill their seats.

But when cases are arguably more murky – MPs who have renounced their foreign citizenship but only received their confirmation after nomination, such as Labor’s Justine Keay and the Nick Xenophon Team’s Rebekha Sharkie – High Court clarification surely would be needed. In light of the potential extent of the debacle, it’s just possible the court might decide their efforts were sufficient.

Assuming there are some dual citizens in the lower house, the timing of byelections will depend on when resignations and/or court decisions come.

There is no way of knowing whether the process will be catastrophic for the government, or something less. It would all depend on the ownership and margins of the seats hit with byelections, and what attitude the voters took in them.

What about the long term?

Despite all the difficulties involved, it’s increasingly looking like the best course would be a referendum to attempt to change the Constitution’s Section 44 (i), which prohibits dual citizens sitting in parliament.

The objective should be to capture the broad intent of the provision, and facilitate candidates meeting that intent.

Turnbull is right when he says that, despite our multicultural makeup, people would not vote for a change that permitted dual citizens to sit.

But if there was bipartisan support, there surely would be a reasonable chance – perhaps no more than that – of passing new wording saying that a candidate must have only Australian citizenship and that a sworn declaration was sufficient to renounce any other citizenship.

The High Court judgement in effect makes federal MPs – and so the federal parliament – hostage to changes in other countries’ laws. This is unacceptable. New constitutional wording would stop that.

I must admit to altering my view on this matter. I’ve previously thought voters are so angry at politicians they wouldn’t want to make things easier for them. But in view of the chaos, it may be that people would be persuaded by the need to instil clarity.

Anyway, it would be worth a go, because while a defeat would be bad, it wouldn’t have the sort of negative consequences of, say, the loss of a referendum on Indigenous recognition.

If this course were taken, the commitment to a referendum could be made soon, but the vote could then be held with the election, to prevent an argument about cost.

There has been speculation that perhaps the situation could be sorted by a change to citizenship legislation. But constitutional expert Anne Twomey, from Sydney University, doubts this – given the court’s indication that determining issues of dual citizenship involves the laws of other countries over which Australia has no control.

Twomey – who doesn’t advocate constitutional change – also points out that if the citizenship part of Section 44 were to be tackled, it would only be prudent to also clarify the parts of the same section that disqualify from parliament anyone who holds an office of profit under the crown or has any direct or indirect pecuniary interest in any agreement with the public service of the Commonwealth.

This makes sense, although admittedly it could complicate the task of selling a referendum.

The ConversationBut let’s stand back. If our politicians, and we as voters, can’t update a troublesome section of this more-than–century-old document, what does it say about all of us?

https://www.podbean.com/media/player/k3zus-7afe23?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.

Turnbull and Shorten haggle over detail of citizenship disclosure system


Michelle Grattan, University of Canberra

Malcolm Turnbull and Bill Shorten are inching toward an agreement on the form of a citizenship declaration that each MP would have to make within weeks.

The two met in Melbourne on Wednesday, with Turnbull hoping they would finalise the declaration. But Shorten, who was accompanied by Labor Senate leader Penny Wong, had two objections to the proposal outlined by Turnbull earlier this week.

Shorten told a news conference later that Labor believed the declaration should outline what steps a person whose parents or grandparents had been born overseas had taken to investigate whether they were a dual citizen. Also, Labor wanted a shorter timeframe for MPs submitting the declaration.

Under Turnbull’s plan, an MP would state the details of where they were born and where their parents were born, and their belief that they were not a dual citizen. The declarations would have to be submitted 21 days after the Senate and the House of Representatives respectively passed a motion approving the new decoration system.

The government plans to move motions for the declaration in the Senate next week and when the House of Representatives meets on November 27.

It emerged on Wednesday that the government was proposing to bring the parliament back in late December to consider the declarations, which would open the way for any MPs who were thought to be dual citizens to be referred to the High Court. But Shorten seized on the point that a special sitting of parliament would be very costly for the taxpayer.

Shorten said the statements should be in by December 1, five days after the lower house resumes, and a week before parliament rises for Christmas.

“This would allow the disclosures to be checked out and then if there are any problems requiring referral to the High Court, that could be done in the last week of parliament,” Shorten said.

On Labor’s proposed tougher test, Shorten said: “Mr Turnbull’s resolution only goes to what the actual individual MP might believe, but I think that we require, and the High Court set, a higher test of us. Labor is not going to support watering down the High Court decisions to help a few MPs scrape back into parliament.”

Late on Wednesday the government and opposition were exchanging proposals for changes to the wording of the motion.

Both Turnbull and Shorten described the talks as “constructive”.

“We are certainly agreed on the need for disclosure of the kind that I’ve set out in the resolution,” Turnbull told a separate news conference.

“We’ve also agreed that the matter must be dealt with before the end of the year.

“By that, I mean that the disclosures should be made before the end of the year and the House and the Senate should have the opportunity, having considered those disclosures, whether any members or senators should be referred to the High Court … of course it may be that nobody needs to be referred to the High Court.”

Meanwhile, Liberal backbencher John Alexander, the member for Bennelong, is waiting for British Home Office advice on whether he is a dual British citizen. The issue revolves around whether Alexander’s father, who was born in Britain, renounced his citizenship – as Alexander believed.

If Alexander turns out to be ineligible to sit in parliament the government would face a byelection in a seat it would be vulnerable to losing.

The government is homing in on Labor MP Justine Keay, from Tasmania, who moved to renounce her UK citizenship before she nominated but did not receive confirmation until after the election. Labor insists that Keay met the requirement to make every reasonable effort to renounce a foreign citizenship.

Issues are being raised about several other MPs. The crisis has already claimed half-a-dozen victims.

Postscript

Four Liberal senators including a minister have nominated for Senate president – but the Nationals New South Wales senator John “Wacka” Williams has said he will not contest. Special Minister of State Scott Ryan has nominated to be the government’s candidate, as have David Fawcett, Dean Smith and Ian Macdonald. If Ryan were successful that would open up a vacancy in the outer ministry.

The government’s candidate will be chosen before the Senate meets on Monday.

Tasmanian Greens senator Peter Whish-Wilson will contest the position against the government candidate but has no hope of success.

The ConversationThe Nationals have never held the position. Williams’ bid was seen as part of the tensions between the Coalition partners in the wake of the citizenship crisis which has claimed two Nationals ministers, forcing Deputy Prime Minister Barnaby Joyce to a byelection and ending – at least for the foreseeable future – the political career of Fiona Nash.

https://www.podbean.com/media/player/k3zus-7afe23?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.

Turnbull proposes all MPs make declarations on citizenship


Michelle Grattan, University of Canberra

The Turnbull government is trying to limit the damage from the citizenship crisis with a plan to have all MPs make declarations about their circumstances.

The motion, agreed to by cabinet on Monday, will be moved in the Senate next week and in the House of Representatives when it resumes late this month.

The move came as questions continued about the status of Energy Minister Josh Frydenberg, whose mother was born in Budapest but arrived in Australia stateless, and assistant minister Alex Hawke, born of a Greek mother.

Fairfax Media late Monday reported that Liberal backbencher John Alexander, who holds the New South Wales seat of Bennelong, might be a dual British citizen by descent because his father was born in the UK. It quoted a spokesman saying that Alexander “believes” his father renounced his British citizenship before Alexander was born.

Last week Senate President Stephen Parry quit parliament when he found he was a dual British citizen by descent.

Opposition Leader Bill Shorten – who proposed on Friday a universal disclosure by MPs which was dismissed by Turnbull – said he would meet with Turnbull on Wednesday to discuss the move. But Shorten said this was “a rather dramatic about-face” and questioned what was behind Turnbull’s change of heart.

Section 44 of the Constitution prohibits a dual citizen being eligible to sit in parliament.

Under the government’s plan, MPs will have to state within 21 days of the resolutions being passed in their respective houses:

  • that when they nominated they were not, to the best of their “knowledge and belief”, a citizen of any other country, and that they are not currently a dual citizen;

  • the place and date of their birth, and their citizenship at that time;

  • the places and dates of their parents’ births; and

  • whether the MP has ever been a citizen of another country, and if so, the details and evidence of the time and manner of the renunciation of that citizenship or how otherwise it ended.

Turnbull said the move was about transparency, confidence and standing up for the Constitution.

He stressed this would not be an “audit” – for which there have been widespread calls – because an audit would involve bringing in an outsider.

“The obligation to comply with the Constitution, in terms of being qualified to sit in the House or the Senate, is on the shoulders of each and every member and senator,” he told a news conference after the cabinet discussion. “That’s why this will be their declarations and their disclosures.”

The disclosure would be similar to those made by MPs about their pecuniary interests and they would be provided to the registrar of members’ interests. If anyone made a false statement they would be in contempt of parliament, with parliament able to impose penalties – although in practice penalties are not imposed for inaccuracies in statements of pecuniary interests.

Turnbull stressed that it is only the High Court that can adjudicate on citizenship status. If the declaration process threw up instances of dual citizenship, the House of Representatives or the Senate could refer the cases to the court.

“Members and senators have been put squarely on notice now, and so they will be turning their mind to their own affairs and the issues of … foreign citizenship,” Turnbull said.

He said in recent instances foreign citizenship had come about in two ways – citizenship by descent, as with Barnaby Joyce and Fiona Nash, and where somebody had been a citizen of another country and had not properly renounced that citizenship, as with Malcolm Roberts.

Turnbull said the Liberal federal director Andrew Hirst “has told me that all of the Liberal Party members believe that they are in compliance with the Constitution”.

Details about grandparents are not being required, although they are relevant to citizenship by descent.

Asked about their omission, Turnbull said it was a question of “remoteness and knowledge”.

“I think we may find that some members will have to do quite a bit of research to determine the place and date of birth of their parents, let alone their grandparents or potentially great-grandparents. It’s simply trying to get a balance between what is reasonably accessible and remote.”

He said some people “when they do due diligence might come to the conclusion that they are not eligible and they choose to resign”.

“On the other hand, the circumstances that are published may be of a nature that other members say, well, you may be believe you are eligible but I do not.” And then the latter member could move the case be referred to the court.

The declarations would also be made after an election.

Turnbull said there were many aspects of the recent decision by the court – which ruled five of the seven current or former MPs before it were ineligible when elected – that needed to be worked on for future elections.

“For example we have to consider whether people who nominate for parliament should not be obliged to provide information like this as part of the nomination process, even if only to make sure they turn their minds to it,” Turnbull said.

Turnbull foreshadowed that there could be further cases. “The court made its decision in the terms it did. It may give rise to more cases.”

“The High Court decision does create some real challenges because they have said that knowledge is not material. The fact is that very often people do not know.

“It may be that they do not know because it is very hard to know. Maybe they do not know because they have not thought about it,” Turnbull said.

Liberal backbencher Eric Abetz, who last week called for an audit, welcomed the “prime minister’s strong and decisive action to restore the integrity of the parliament”.

“I am confident that it will go a long way to ensure the parliament is seen to have integrity not only in the short term but well into the future,” Abetz said. “I am appreciative that the prime minister has taken on board the views of the backbench on this issue.”

Greens leader Richard Di Natale said Turnbull’s plan was “full of holes” and did “nothing to end the uncertainty”. The Greens would continue to press for an audit. There needed to be a “forensic look at the documentation” when there were questions about a person’s potential dual citizenship.

Australian Conservatives leader Cory Bernardi tweeted:

The Conversation

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Michelle Grattan, Professorial Fellow, University of Canberra

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