With prizes, food, housing and cash, Putin rigged Russia’s most recent vote

Russian President Vladimir Putin at a polling station to cast his ballot in a nationwide vote on constitutional reforms in Moscow on July 1, 2020.
Alexey Druzhinin/SPUTNIK/AFP via Getty Images)

Regina Smyth, Indiana University

When Russians voted in early July on 200 constitutional amendments, officials rigged the election to create the illusion that President Vladimir Putin remains a popular and powerful leader after 20 years in office.

In reality, he increasingly relies on manipulation and state repression to maintain his presidency. Most Russians know that, and the world is catching up.

At the center of the changes were new rules to allow Putin to evade term limits and serve two additional terms, extending his tenure until 2036. According to official results, Putin’s regime secured an astounding victory, winning 78% support for the constitutional reform, with 64% turnout. The Kremlin hailed the national vote as confirmation of popular trust in Putin.

The vote was purely symbolic. The law governing constitutional change does not require a popular vote. By March 2020, the national legislature, Constitutional Court and Russia’s 85 regional legislatures had voted to enact the proposed amendments.

Yet, the president insisted on a show of popular support and national unity to endorse the legal process.

The Kremlin’s goal was to make Putin’s 2024 reelection appear inevitable. Given the stakes, the outcome was never in doubt – but it did little to resolve uncertainty over Russia’s future.

Declining social support

Why hold a vote if a vote isn’t needed?

As a scholar of Russian electoral competition, I see the constitutional vote as a first step in an effort to prolong Putin’s 20-year tenure as the national leader. The Kremlin’s success defined the legal path to reelection and the strategy for securing an electoral majority in the face of popular opposition.

Protesters in line at the presidential administration in Moscow, waiting to deliver statements that they don’t accept the results of the constitutional amendment vote, July 4, 2020.
Sefa Karacan/Anadolu Agency via Getty Images

Its effect on societal attitudes is less clear. A recent poll by the independent polling organization the Levada Center showed that while 52% of respondents supported Putin’s reelection, 44% opposed. At the same time, 59% want to introduce a 70-year-old age cap for presidential candidates. This change would bar the 68-year-old president from running again.

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The government’s disorganized and weak response to COVID-19 highlighted the inefficient and corrupt system and produced an unprecedented drop in Putin’s public approval ratings.

Growing signs of popular discontent in Russia suggest this polling data underestimates demand for change. Local protest against pollution, trash incineration and state reforms continue to grow across the Federation. Focus group data reveals that ordinary Russians are concerned about state repression and civil rights violations.

In the leadup to the constitutional vote, internet influencers read the public mood and refused payments for their endorsement, fearing a backlash from followers and advertisers.

A new Putin majority

Declining popular support highlights the difficulty of building a new voting coalition. Manufacturing a demonstration of national unity was the first step in reinventing Putin’s links to core supporters in the runup to the next national election cycle.

By 2012, Putin’s first coalition, forged in the economic recovery of the early 2000s, was eroded by chronic economic stagnation punctuated by crisis.

In the mid-2010s, Putin’s new majority was based on aggressive foreign policy actions. That coalition declined, as conflicts in Ukraine and Syria dragged on, and public support for expensive foreign policy adventures decreased.

The constitutional vote marks Putin’s third attempt to reconstruct electoral support rooted in patriotism, conservative values and state paternalism that echoes the Soviet era.

Fixing the vote

The constitutional reform campaign focused on state benefits rather than the Putin presidency.

Putin offered something for everyone in the 200 amendments.

As an antidote to unpopular pension reforms, a new provision guarantees pensioners annual adjustments linked to inflation. Other amendments codified existing policies guaranteeing housing and a minimum wage. New clauses codify Putin’s version of conservative values, with measures that add a reference to God, a prohibition against same-sex marriage and support for patriotic education. Other provisions take aim at corruption, by prohibiting state officials from holding offshore accounts.

A massive PR campaign framed starkly different appeals to different voter groups. For those concerned with international security, ads depicted apocalyptic visions of Russia’s future after a NATO invasion. For younger voters, appeals depicted happy families voting to support a bright future.

State television featured supportive cultural icons and artists, including Patriarch Kirill, who is the head of the Russian Orthodox Church. Putin himself argued that participation was a patriotic duty. No one mentioned the controversial loophole that would allow Putin to run again.

The campaign foretold the outcome: The regime would stop at nothing to secure success. Officials coerced employees of government agencies and large businesses to turn out. Voters were offered prizes, food and chances to win new housing and cash for participating.

Ostensibly in response to COVID-19, the Electoral Commission altered voting procedures to evade observation, developing a flawed online voting system and creating mobile polling stations in parks, airports and outside apartment blocks. There is overwhelming evidence that the Kremlin resorted to falsification to produce the desired outcome.

Most Russians understand that the manufactured outcome does not accurately reflect attitudes about Putin’s reelection.

Limits of disinformation

There is growing evidence that the public is no longer persuaded by disinformation and political theater such as the rigged constitutional vote. Trust in state media, the president and the government are declining precipitously.

Members of a local electoral commission empty a ballot box at a polling station, July 1, 2020.
Alexander Nemenov/AFP via Getty Images

The realities of sustained economic stagnation and the Kremlin’s anemic response to COVID-19 stand in sharp contrast to its all-out approach to the symbolic national vote. It can rig a vote, but it can’t control a virus.

The Kremlin’s pandemic response raises doubts about its ability to fulfill new constitutional mandates. Widely publicized efforts to reform the Soviet-era health care system still left hospitals unprepared to manage the pandemic. The state proved incapable of delivering bonuses to first responders and medical workers. The Kremlin refused to use its substantial emergency fund to support entrepreneurs, families with children and the unemployed.

Given these realities, upcoming elections will test the illusion of a new pro-Putin majority defined by this rigged vote. And if the voters abandon Putin, the new Constitution provides a final path to remain in office: the unelected chairmanship of the powerful new State Council.

Regina Smyth, Professor, Indiana University

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

When Trump attacks the press, he attacks the American people and their Constitution

AAP/Twitter/supplied

Peter Greste, The University of Queensland

Here is a line from the latest safety advisory for reporters issued by the US-based Committee for the Protection of Journalists (CPJ):

Taking into account the increased levels of violence and tactics used by both police and protesters, ballistic glasses, helmets, and stab vests should be worn. If there is a threat of live ammunition being used, then body armour should be considered.

It is the kind of advice I used to be given before going on assignment to places like Baghdad, Kabul or Mogadishu. But the CPJ is aiming its latest note at US-based reporters more used to covering city hall than documenting running battles between police and demonstrators. It is deeply troubling that an organisation usually advocating for reporters in violent autocratic regimes decides it now has to support those in its own backyard.

One organisation, Bellingcat, has been tracking assaults on journalists since the riots broke out over the death of George Floyd in Minneapolis last week. In the first four days of protests, its chief investigator counted more than 100 incidents. (The CPJ counts closer to 200.)

The 101st involved an Australian news crew from Channel Seven. They were beaten while filming outside the White House, as riot police used tear gas and batons to clear the peaceful protesters so President Donald Trump could walk across the street and hold a Bible in front of St John’s Church. (In a speech moments before, Trump had – without irony – declared, “I am your president of law and order”, and “an ally of all peaceful protesters”.)

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The startling number of attacks on journalists does not appear to be an accident. Inevitably, anyone reporting in violent places risks being caught in crossfire. But the numbers suggest something more troubling.

Bellingcat’s investigator Nick Waters, wrote

although in some incidents it is possible the journalists were hit or affected accidentally, in the majority of the cases we have recorded the journalists are clearly identifiable as press, and it is clear that they are being deliberately targeted.

The police actions against journalists might seem futile in our social media age when everyone with a mobile phone has the power to act as a reporter, but that doesn’t stop individual cops from lashing out at those they see as actively monitoring them.

There does not appear to be a coordinated strategy. In the United States, policing is generally a state and city affair, so collusion seems unlikely. The CPJ’s Courtney Radsh said the organisation’s experience of tracking violence towards journalists in some of the world’s most hostile regimes shows that the police step up their attacks when they believe they can get away with it.

In the US, the president himself has frequently derided journalists as “the enemy of the people”, who peddle “fake news”, and on Sunday he issued a tweet describing them as “truly bad people with a sick agenda”.

There is no doubt some journalists have behaved unethically or been loose with the facts, and the news business more broadly has not always covered itself in glory.

But as imperfect as it may be, it remains a vital part of the way a free and open democracy works. It acts as a watchdog on behalf of voters, monitoring the behaviour of institutions like the police and government who are supposed to be acting in the interests of the public.

In so many cases in the protests, journalists have clearly identified themselves verbally, with accreditation, with vests labelled “press”, carrying professional-standard cameras, and by their actions, observing rather than participating in the protests. That observation is rarely comfortable for those in authority, but it is a necessary part of the system.

As a recovering journalist and press freedom advocate, I am of course concerned about assaults of my colleagues. But to be clear, this is not about them. What we are seeing in the United States is an attempt to make the public blind to heavy-handed police tactics.

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The founding fathers of the United States understood that when they wrote the First Amendment into its Constitution, guaranteeing “congress shall pass no law […] abridging the freedom of speech, or of the press”. (The First Amendment also guarantees freedom of religion, the right of the people peaceably to assemble, and to petition the government for a redress of grievances.) Attack the press, and you attack the very system that has made places like the US and Australia among the safest and most prosperous in the world.

The reason autocrats in Turkey, the Philippines and Egypt throw journalists in prison with such enthusiasm is because they know a free media empowers the public, and threatens their survival.

If Trump is the patriot he claims to be, he will honour the Constitution and defend the press rather than accuse reporters of “doing everything within their power to foment hatred and anarchy”.

Peter Greste, Professor of Journalism and Communications, The University of Queensland

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

States are shutting their borders to stop coronavirus. Is that actually allowed?

AAP/Mick Tsikas

Anne Twomey, University of Sydney

Movement of people and goods across state borders in Australia is guaranteed by the Constitution. Section 92 of the Constitution says

trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

“Intercourse among the States” in this context, means the movement of people, goods and communications across state boundaries.

If movement of people across state borders must be absolutely free, can the states hinder or even prevent such movement during the coronavirus pandemic? The short answer is “yes”.

“Absolutely free” does not mean what it says. The High Court has accepted that there can be limits if they are reasonable and imposed for a legitimate end, such as protecting the public from a dangerous disease.

What limits does the Constitution impose on the states?

A state cannot exclude people from entering it because it has some objection to them, such as their character or behaviour. For example, shortly after federation, NSW enacted the Influx of Criminals Prevention Act 1903 to prevent convicted criminals from other states entering New South Wales. It tried to use the act to prevent John Benson, a convicted vagrant, of entering the state.

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But the High Court struck down the law because it prevented freedom of interstate movement in breach of section 92 of the Constitution. While some judges recognised that a state may have power to act where it is necessary to protect “public order, safety or morals”, they did not consider that the exclusion of vagrants could be justified as such a necessity.

Since then, the High Court has accepted that a state law may impede the entry into the state of persons, animals or goods that are likely to injure its citizens. These include risks of the transmission of animal and plant diseases and the entry of noxious drugs.

Justice Brennan stated in the case of Nationwide News that where the true character of a law

is to protect the State or its residents from injury, a law which expressly prohibits or impedes movement of the apprehended source of injury across the border into the State may yet be valid.

A court would need to consider the severity of the restriction and the need for the measure.

If the law is enacted for a purpose other than simply impeding movement across state boundaries, such as to protect public health, and the measures imposed are appropriate and adapted to fulfilling that purpose, then the law is likely to be held to be valid. It will depend on the factual circumstances in any particular case.

What about current proposals to restrict movement across state borders?

Current proposals to restrict the movement of people across state borders are clearly for the legitimate purpose of protecting public health. No one could argue that the reason is “protectionist” or simply an objection to residents from other states entering the state.

So far, actions and proposals by various states have not been directed at preventing people from crossing state borders. Instead, they have involved health checks and requirements to self-isolate for 14 days if they do enter the state.

While this may impose a “burden” on interstate movement of people, it does not prevent it, and the self-isolation requirement seems to be appropriate and adapted to the public health need.

The states have also made appropriate exceptions, such as in relation to emergency service workers and people transporting goods in and out of the state. An exception may also need to be made to ensure that federal members of parliament can travel to and from Canberra to fulfil their representative functions.

If more extreme measures were taken, which could be regarded as not being appropriate and adapted to achieving the protection of public health, then they would be more vulnerable to legal challenge.

But in any case, the High Court would take into account the evidence that the state was relying on and its efforts to calibrate the restrictions appropriately in the circumstances. More extreme risks may justify more extreme measures in limiting interstate intercourse.

Are there any other constraints on states ‘going it alone’?

First, any state action must fall within its existing legal powers. These include those under its public health legislation, or it first may need to enact new legislation or make appropriation regulations under existing statutes. If a state is restricting the liberty of its residents, then it needs lawful power to do so.

Secondly, while states have extremely broad legislative powers (subject to section 92 of the Constitution), if the law of a state conflicts with a law of the Commonwealth, then section 109 of the Constitution provides that the Commonwealth law prevails and the state law is inoperative to the extent of the inconsistency.

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So if a Commonwealth law gives a person the right to enter the state, and the state law is inconsistent with it, the Commonwealth law would override state law. So states should be careful to not make any laws that might conflict with Commonwealth laws.

Thirdly, if the federal parliament wished to override particular state laws, and it had a source of constitutional power to legislate (such as its power with respect to quarantine), then it could legislate in such a way as caused an inconsistency, rendering the state law inoperative to the extent of the inconsistency.

The states can close borders to protect their citizens

Overall, despite the constitutional guarantee that intercourse among the states shall be absolutely free, the states retain a degree of latitude to limit border-crossing as long as it is appropriate and to protect public health.

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Anne Twomey, Professor of Constitutional Law, University of Sydney

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

Albanese says Voice must be in the Constitution

Michelle Grattan, University of Canberra

Opposition leader Anthony Albanese says an Indigenous “Voice” to parliament must be enshrined in the Constitution.

His position, spelled out in a speech to be given on Saturday to the Garma Festival, makes it difficult to see how he and Prime Minister Scott Morrison will be able to agree on a referendum question.

Albanese says in his address, released ahead of delivery:

With a Voice in place, there can be truth-telling, and there can be Makaratta. […] It is clear to me that enshrining that Voice in the Constitution is what must come first.

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Morrison has been adamant there should be no reference to a Voice in what is inserted in the Constitution to recognise Australia’s First Peoples.

Without bipartisan support, a referendum would not have a chance of success and, indeed, would not be put.

Indigenous leaders in the Uluru Statement from the Heart called for “the establishment of a First Nations Voice enshrined in the Constitution”.

Albanese says:

I want a Voice and Truth then Treaty to be part of our nation’s journey, part of our national life. It’s not just about respect and redress. It’s about progress and change. It’s about moving out of the darkness

Although there is a gulf between Albanese and Morrison over what should go into the constitution, Albanese says he still hopes for bipartisanship.

“We have not yet had true reconciliation, and a country that is not truly reconciled is not truly whole. And until we are whole, we will never reach our truest potential as a nation – and we have so very much potential,” he says.

But how can we have reconciliation when one side has no voice?

The Voice is the bedrock upon which we must build.

I will take the fight to the government on so many things; never have any doubt about that. But on this we must work together. We must be together. My hope we can have bipartisanship on this remains alive.

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Albanese says he is encouraged by “the tentative moves towards constitutional change” by the Minister for Indigenous Australians, Ken Wyatt. “I hope he gets the support he needs and deserves from his colleagues.”

He says he is also encouraged by “the epiphany experienced by Barnaby Joyce.

“After being part of the chorus pushing the myth that a Voice would amount to a third chamber in parliament, Mr Joyce did something unusual. He stopped. He listened. He asked questions from people with knowledge. […]

“Mr Joyce then went on television to own up to his mistake, and to explain why he’d been wrong. And he encouraged others who’d made the same mistake to follow his example.”

At Tuesday’s caucus meeting Pat Dodson, the opposition spokesman on Indigenous recognition, said constitutional recognition had now been decoupled from everything that was in the Uluru statement. Uluru had now shifted to “co-design with select individuals”, he said.

Dodson said there was no structure for formal consultations with First Nations. “Apparently the minister has a plan for consultation with the Coalition backbench and apparently with Pauline Hanson”, he said.

The challenge now was to “assist the minister without walking away with all the fleas and ticks that would undermine a principled position”, Dodson said.

Michelle Grattan, Professorial Fellow, University of Canberra

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

Changing the Australian Constitution was always meant to be difficult – here’s why

Anne Twomey, University of Sydney

Debates about constitutional change in Australia inevitably raise the poor success rate of referendums. Only eight out of 44 attempts have ever succeeded and there has not been a successful constitutional change since 1977.

So why was the referendum chosen as the means of amending our federal constitution, and was it really intended to be so hard to succeed?

In the 1890s, adopting a referendum as the means of amending the constitution was quite radical. None of the countries from which the framers of the constitution drew precedents and inspiration – the United Kingdom, Canada and the United States – used a referendum.

Why then did Australia take a different path and entrust the people with the final decision on constitutional change?

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The UK supported flexible constitutions and easy change

In the United Kingdom, the view was taken that every generation had the right to change the constitution to suit its own needs. Accordingly, it did not have a formal constitution with restrictions on how it could be amended. Instead, the UK had a range of legislation dealing with constitutional matters that could be changed by the vote of an ordinary majority in parliament.

In the 1850s, when the New South Wales Constitution was being enacted, NSW politicians wanted to:

frame a Constitution in perpetuity for the colony – not a Constitution which could be set aside, altered and shattered to pieces by every blast of popular opinion.

But the British government inserted an overriding provision in the statute that approved the NSW Constitution, which allowed the constitution to be amended by ordinary legislation passed by the NSW parliament. They sought to ensure that the people, through their parliamentary representatives, were free to change their constitution as and when it suited them.

Federal systems need rigid constitutions and more difficult change

When it came to making a constitution for an Australian federation, such flexibility was not possible.

A federal constitution confers different powers at the federal and state level. If the federal parliament had the power to change it by passing ordinary legislation, then all powers and protections of the states could be easily removed, destroying the federal system. That meant that a “rigid” or “entrenched” constitution was needed – one that could not be amended simply at the behest of one level of government.

The two obvious federal examples to draw on were Canada and the United States. The Constitution of Canada was set out in a British statute of 1867. Because it did not contain an internal mechanism to amend the constitution, only the British parliament could amend it.

The framers of the Australian Constitution did not want to go begging to Westminster whenever they wanted to amend their constitution. They wanted control over the constitution to rest in Australian hands. So they rejected the Canadian approach.

The other well-known federal example was the United States. Despite all the constitutional rhetoric of “we, the people”, the US Constitution has never been amended by a direct vote of the people. Instead, it requires a constitutional amendment to be initiated and ratified by a combination of special majorities of votes in Congress, the state legislatures or especially established conventions. The people do not get a direct say.

How the referendum was seen in the 1890s

In the 1890s, the referendum became the subject of much study and interest outside its existing use in Switzerland and in parts of the United States at state and local level.

One strong and influential supporter of the referendum in the United Kingdom was A. V. Dicey. This was surprising, as he is best known for his support of parliamentary sovereignty. But Dicey saw the referendum as both democratic and conservative. In 1890 he said:

It is democratic, for it appeals to and protects the sovereignty of the people; it is conservative, for it balances the weight of the nation’s common sense or inertia against the violence of partisanship and the fanaticism of reformers.

Dicey was opposed to Home Rule for Ireland and saw the referendum as a means of allowing the people to veto constitutional change that would otherwise be imposed on the country due to party-political considerations.

In 1894, he described the referendum as “the People’s Veto”. In words that might well resonate today, he expressed concern that

the art of Party warfare is turning into the art of bribing and confusing voters.

To him, the referendum was a means of defeating change by relying on the general reluctance of people to risk the unknown. It is as if he had foreseen the history of federal referendums in Australia.

Why Australia chose the referendum

The idea of adopting the referendum, both as a means of approving a federal constitution and later amending it, was raised by Alfred Deakin in 1890 and Charles Kingston in 1891. They approached the issue as one of democracy, rather than conservatism.

Nonetheless, the 1891 Constitutional Convention rejected the proposal for a referendum. Sir Samuel Griffith argued that constitutional change was complex and it was not practicable for voters to be familiar with every detail. He considered an elected convention of political experts was better suited to dealing with such issues.

The convention ultimately approved a model similar to that in the United States, involving passage of an amendment by an absolute majority of both houses of the federal parliament, then approval by special conventions in a majority of states.

By the time of the 1897 Constitutional Convention, however, Griffith was gone and those supporting a form of more direct democracy prevailed. The referendum was chosen, but it was still to be subject to several hurdles.

There was no intention that the constitution be easy to change. Tasmanian Premier Sir Edward Braddon observed that the feeling of the convention was:

… that it should be made as difficult as possible to amend the Constitution.

While it was not to be made “absolutely impossible”, the constitution should not be easily capable of change upon “any fluctuation of public opinion” or in response to a crisis of a temporary character.

What is needed for a referendum to pass?

So what hurdles must be overcome for the Australian Constitution to be amended?

First, the amendment must be approved by an absolute majority of each house of parliament, or it must be passed twice by an absolute majority of one house, with an interval of three months in between. This effectively gives the federal government control over what goes to a referendum, because even if the Senate alone approves a referendum, it still requires the governor-general to put it to the referendum. On the only occasion this occurred, in 1914, the governor-general acted on the advice of the government not to hold the referendum.

Secondly, once a constitutional amendment is put to a referendum, it has to be passed by a majority of all the electors who vote. Since 1977, this has included electors in the territories.

Thirdly, a referendum must also be approved by a majority of voters in a majority of the states. That means that there has to be majority “yes” vote in four of the six states.

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There are also special requirements if the constitutional change would diminish the proportionate or minimum parliamentary representation of a state or affect the borders of a state, in which case the approval of a majority of electors in the affected state is required.

The political hurdles to referendum success

These are the legal and constitutional hurdles. But as Dicey noted in the 1890s, and many others have since, there are numerous political reasons why referendums fail. These include poor proposals, fear of change, political opportunism by governments or oppositions, a low level of public understanding of constitutional matters, poor campaigning and sheer inertia or public disinterest.

Constitutional change in Australia is always an uphill battle, but that is no reason to shirk it. Instead, it should be a spur to produce better proposals for constitutional change, develop strong and clear arguments for reform, cultivate widespread public support and undertake vigorous, but honest, campaigns.

Anne Twomey, Professor of Constitutional Law, University of Sydney

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

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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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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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.

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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Read more:
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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Read more:
Government’s own ‘freedom commissioner’ Tim Wilson questions citizenship plan

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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.

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

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.

This 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.

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

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

Helen Irving, University of Sydney

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

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

Section 44(i) of the Constitution states “any person who is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power” is ineligible to stand for, or sit in, federal parliament.

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

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

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

The AEC also says:

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

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

What the High Court has previously found

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

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

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

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

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

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

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

Two principal questions were considered:

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

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

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

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

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

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

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

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

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

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

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

What now?

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

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

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

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