Government unmoved by Labor MP Susan Lamb’s emotional story

Michelle Grattan, University of Canberra

Embattled Labor MP Susan Lamb has hit back at government pressure for her to quit parliament over her dual citizenship, in an emotional speech laying the blame for her failure to produce a vital document on an estrangement from her mother.

But the government was unmoved by Lamb’s tearful explanation, saying it changed nothing – although there was no sign of imminent action to refer her to the High Court.

Lamb, who holds the marginal Queensland seat of Longman, took steps to renounce her British citizenship but the UK authorities required her parents’ marriage certificate, which she did not produce.

The government has threatened to refer her to the court, despite Labor’s opposition.

Some in the government had hoped that if Lamb could be forced to quit quickly without a court case, a byelection could be held in Longman on the same day as the Batman byelection, thus putting maximum heat on Bill Shorten.

But with Wednesday’s announcement of March 17 as the date for the Batman contest and Lamb refusing to resign, that is not going to happen.

Lamb told parliament she had been advised she did not have a legal right to access the marriage document.

Recounting how her mother had abandoned her as a young child, she said: “One day when I was around six years old my mum dropped me off at school, and she never came back to pick me up.

“I don’t remember every detail of what happened afterwards. I remember lots of tears. I remember lots of confusion. I remember my dad trying to explain. I remember sometime later, dad taking me to the train station, late one evening, to collect my mother.

“I thought she was going to come home. The train came, the train went, no sign of her, so we went home. Then one day, I remember going outside the front of the mill gates. We lived on the mill grounds in Mackay in north Queensland …

“A car turned up … my mother got out, words were exchanged and then my mother drove away. My dad was now a single parent – an amazing man whose example I try to live up to every day of my life.”

Her father died nearly 20 years ago.

Lamb said many years ago she and her mother attempted to build a relationship, but that failed.

“The fact is, my mum is not around to grant me access to her marriage certificate.”

Lamb said she was not telling the story to gain sympathy, but to explain that she did not have the legal entitlement to obtain the document. “So I would simply ask those opposite, take a moment and think about the circumstances.”

But government sources said that in her situation she could have applied to the registrar of births, deaths and marriages, or have got a lawyer to be an intermediary.

The sources said Lamb’s circumstances were similar to those of former senator Fiona Nash, also British through her father, who sought referral to the High Court and was declared ineligible to sit. Nash’s parents, now both dead, had divorced, and she had had little contact with her father.

Previously The Australian quoted Lamb’s mother saying she would have “definitely helped her if she had been contacted”.

The ConversationThe ABC’s Jane Norman tweeted “Re. Susan Lamb: QLD’s Registry of Births, Deaths and Marriages says requests are considered on a case-by-case basis where parental consent isn’t obtainable”.

Michelle Grattan, Professorial Fellow, University of Canberra

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


Lambie’s Senate replacement Steve Martin flags that he won’t stand aside

Michelle Grattan, University of Canberra

The High Court has ruled that Steve Martin, from the Jacqui Lambie Network (JLN), is eligible to enter the Senate, dismissing the argument that his mayoral position disqualified him under the Constitution’s Section 44.

After the decision Martin quickly rejected any suggestion he might stand aside to allow Lambie to return to the Senate, despite her clear wish that he do so.

Lambie resigned from parliament last year because she had dual citizenship, inherited via a Scottish father.

Martin said he was excited at the case’s outcome and the prospect of taking up the opportunity to work for Tasmania in the Senate.

Asked whether he might defect to become an independent, as did a One Nation replacement senator, Fraser Anning, Martin said he was entering the Senate as a JLN candidate and there were still a few steps to be gone through. He would not be drawn on anything “hypothetical”.

The issue in the case of Martin, who was number two on the JLN ticket at the election, was whether, as mayor of Devonport, he held an office of profit under the crown.

Former One Nation candidate Kate McCulloch maintained that he did. The full bench decision, which was unanimous, has now clarified the constitutional position in relation to local councillors generally.

Lambie said at the weekend: “My heart is set on coming back to the Senate”.

Martin was “entitled to that second seat. If he wants to run through with it, well he’s entitled to do that. Unfortunately I broke the rules, whether it was intentional or not, and I have to sit on the sidelines and pay the price for that,” she told Sky.

“I’ll be brutally honest, if it was me in his position I would be extremely loyal and I would step down. That’s what I would do, but that is not up to me – that is up to him.”

Next week the court will hear the case concerning the successor to former Nick Xenophon Team senator Skye Kakoschke-Moore, who also resigned in the dual citizenship crisis.

Kakoschke-Moore is arguing the vacancy should not go to the next candidate on the ticket, Tim Storer, who, after a falling out with the party, is no longer a member of it. She maintains the seat should go back to her; she has now freed herself of her British citizenship.

The court also has before it the status of ACT Labor senator Katy Gallagher, who did not receive confirmation of her renunciation of British citizenship until after her nomination.

Meanwhile, the Coalition is awaiting the court’s judgment in the case of David Gillespie, an assistant minister.

At issue there is another part of Section 44, which prohibits anyone being chosen for, or sitting in, parliament if they hold a pecuniary interest in an agreement with the Commonwealth.

The ConversationA tenant in a Port Macquarie shopping centre owned by Gillespie’s family company has an Australia Post franchise. Australia Post is a government business.

Michelle Grattan, Professorial Fellow, University of Canberra

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

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

Michelle Grattan, University of Canberra

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Michelle Grattan, Professorial Fellow, University of Canberra

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

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

File 20171205 22982 6wy1dh.jpg?ixlib=rb 1.1
Labor senator Katy Gallagher has been referred to the High Court over her possible dual citizenship status.
AAP/Lukas Coch

Lorraine Finlay, Murdoch University

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

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

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

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

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

All reasonable steps?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Previous ineligibility

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

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

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

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

Lorraine Finlay, Lecturer in Law, Murdoch University

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

New blow for Labor as David Feeney hits citizenship hurdle

Michelle Grattan, University of Canberra

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dreyfus’ list included:

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

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

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

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

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

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


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

Michelle Grattan, Professorial Fellow, University of Canberra

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

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.

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.

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.


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.

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.

Michelle Grattan, Professorial Fellow, University of Canberra

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