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.

join The Conversation in Melbourne

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.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

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

Advertisements

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


H. K. Colebatch, UNSW

Among the many lessons the recent Liberal leadership spill has taught us is that the problems arising from section 44 of the constitution, which already has quite a hit list, have not gone away, and there may be more to come.

The section deals with disqualifications from parliament. The problems with it have not gone away, but have become part of the political struggle. They are also not only about citizenship, nor are they simply a matter of doing the paperwork.

It is not clear what the disqualification provisions are, or how they are enforced. And, finally, the problem is not going to be resolved if politicians continue to ignore it.

When section 44 issues were first raised, then Prime Minister Malcolm Turnbull tried to use them as a way of attacking his parliamentary opponents. The ALP is now repaying the favour. Both sides have been more interested in using the issue as a weapon than reaching a solution.




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


More than dual citizenship

The original disqualification questions were about holding foreign citizenship. But it is now being asked if the special jobs created for Tony Abbott and Barnaby Joyce breach the “office of profit” provisions, while Peter Dutton’s business dealings have come under scrutiny for a potential s44 breach.

Meanwhile, the question of disqualification on the basis of an entitlement to foreign citizenship, or to its “rights and privileges”, remains unaddressed. If the High Court were to look into the cases of the MPs with such entitlements, and to rule consistently with its earlier decisions, up to a third of the parliament could be disqualified.

But the whole issue is clouded in uncertainty. The section is very badly drafted; partisan conflict has meant that few cases have made it to the High Court and, when they have, the court’s judgments have been, in Jeremy Gans’s words, “too rare, sparse and cryptic for anyone to confidently rule most Australians in or out” of eligibility.

Different judges have reached different conclusions on the same cases. Even those who have agreed with the other judges have done so for different reasons, so no consistent rule can be derived from the case.

Judges are more interested in reaching a decision on the case in front of them than articulating a general rule that can guide future action. So while QCs may make declarations about how the High Court would rule in any case put to them, as the Commonwealth Solicitor-General said on the Dutton case, “it is impossible to predict” how the High Court will rule on a particular case.

The fact that no one is responsible for applying and enforcing these provisions exacerbates the uncertainty. While section 34 on qualifications is amplified by the Electoral Act and administered by the Australian Electoral Commission, there is no comparable authority for determining disqualifications.

The constitution provided three avenues: the ancient right of parliament to determine if members were qualified to sit; some ways in which the High Court could determine disputes as a Court of Disputed Returns; and the possibility of lawsuits by citizens against members whose eligibility was challenged.

This has meant there is no consistent enforcement. The AEC has refused to involve itself in judging disqualifications. The parliamentary power to determine is completely discredited by the partisan motivation of the politicians. The High Court will only hear cases brought within 40 days of the election unless these are referred by parliament. And the first time anyone used the Common Informers Act, the High Court sniffily declared the act was not properly drafted and was in breach of the constitution. The court threw out the case, nullifying the provision specifically inserted in the constitution to give ordinary citizens the right to enforce the disqualification rules through the courts.

Turnbull announced that all MPs would be asked for a declaration that they were not disqualified by reason of holding a foreign citizenship. These declarations were recorded in a citizenship register, but no action was taken as a result. The register appeared to be an empty gesture.

So we have rules on disqualification that are applied only to those who are honest enough to resign or unlucky enough to find a parliamentary majority organised to refer their case to the High Court.

The multiparty parliamentary committee investigating the problem (the third one to do so) concluded (like its predecessors) that section 44 is not fit for purpose. It proposed a constitutional amendment to put the determination of disqualifications back into the hands of parliament. But Turnbull rejected this proposal before the committee had even proposed it.

Where do we go from here?

Probably everyone in Canberra is too shell-shocked right now to think of more than surviving the upcoming election. But, after the election, the best starting point would be the parliamentary committee’s recommendation to put responsibility back into parliamentary hands. This would enable work to begin on how best to deal with the tensions arising from citizenship, public employment, business dealings and so on, and what sort of regulatory structure would be most appropriate.

The question is how to overcome the inertia and partisan opportunism that have impeded the search for a resolution of the problem up to now. The most promising course would be the development of a cross-party advocacy network, building on the work of the Joint Standing Committee on Electoral Matters. It would help if members of the public were to write to or ring their MPs and senators to express their concerns.




Read more:
Explainer: is Peter Dutton ineligible to sit in parliament?


If this sounds too unambitious, those with the energy to do so could organise to challenge, within the 40-day window, the election of all those members and senators who are entitled to another citizenship or to its rights and privileges.

How many were caught in this net would depend on how many of the present representatives were re-elected, but it would probably not be less than 20-25% of the parliament. For them, the exclusion would be permanent, because while a foreign citizenship can be renounced, an entitlement cannot be: it remains in the law of the foreign country, and the High Court recognises foreign law as the determinant of citizenship status.

The possibility of having a quarter of the parliament thrown out in this way might just be enough to induce the parliamentarians to support a move to a better system.The Conversation

H. K. Colebatch, Visiting Professorial Fellow, UNSW

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

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



File 20180716 44094 3gak57.jpg?ixlib=rb 1.1
It has been widely assumed that any dual citizenship problems are confined to the federal parliament. But that may need a rethink.
Shutterstock

Lorraine Finlay

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

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




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


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

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

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

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

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

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

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

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

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

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

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

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

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

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




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


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

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

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

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

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

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

The ConversationThe same principle must also apply to our state parliaments.

Lorraine Finlay, Lecturer in Law

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

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


File 20180517 155623 1n8q8hg.jpg?ixlib=rb 1.1
The dual citizenship saga that has rocked the parliament in recent months is unlikely to end any time soon.
Shutterstock

Lorraine Finlay, Murdoch University

The release of the report by the Joint Standing Committee on Electoral Matters (JSCEM) into section 44 of the Australian Constitution is the latest chapter in the long-running dual citizenship saga. The committee was asked to consider the impact of section 44 and options for reform.

While the report emphasises it is for the Australian people to decide on the appropriate qualifications of their elected representatives, its very title – Excluded: The impact of section 44 on Australian democracy – is a clue to the final view adopted by the majority of JSCEM.

Is a referendum the answer?

The key recommendation of JSCEM is that there should be a referendum proposing either that sections 44 and 45 of the Constitution are repealed, or that the words “until the Parliament otherwise provides” be inserted into those sections.




Read more:
Explainer: what the High Court decision on Katy Gallagher is about and why it matters


The majority report states that the problems caused by section 44 are “wide-ranging” and “have significant and detrimental implications” for Australia’s democracy.

If either of the recommended referendum questions were passed, the effect would be to remove the disqualification criteria from the Constitution and instead leave it to the parliament to enact laws governing this area. This would supposedly allow for disqualification laws that better reflect modern community standards.

There are several practical problems with this, and that is without considering the underlying substantive question of whether section 44 should actually be changed.

The first problem is that it is highly unlikely a referendum would succeed, a point acknowledged by JSCEM. To succeed, a referendum question must be approved by not only a majority of voters across the country, but also a majority of voters in a majority of states. That means a referendum can be defeated with only 19.8% of Australians (being a majority of voters in each of the four smallest states) voting no.

It is highly unlikely that the Australian people would vote “yes” in a referendum that simply asks them to repeal section 44 – which is precisely what JSCEM has recommended. That would not only mean voting “yes” to allowing dual citizens to be elected (itself a controversial proposition), but would also allow individuals to be elected where they have been convicted of treason, are under sentence for a serious crime, or have a financial conflict of interest.

To be fair, JSCEM goes on to recommend that if the referendum passes, the parliament should enact laws to address matters of qualification and disqualification. Any such laws would most likely ensure that many of the circumstances described above would still result in disqualification.

But the difficulty with this is two-fold. The first is that – rightly or wrongly – many Australians blame our politicians for the problems with section 44. The idea they should put those same politicians in charge of deciding what disqualifications should apply to politicians in the future is unlikely to be met with great enthusiasm.

The second difficulty is that JSCEM is asking us to consider constitutional change in a vacuum. How can the Australian people judge whether or not to vote for repealing section 44 without knowing what, if anything, will replace it?

The committee suggests the removal or amendment of section 44 is a “necessary prerequisite” to a public debate on what constitutes appropriate parliamentary disqualifications.

I would suggest the opposite is true. A public debate on what constitutes appropriate parliamentary disqualifications is a necessary prerequisite to any referendum suggesting the removal or amendment of section 44.

In any event, the question of a referendum appears to be academic, with the government ruling out this option almost as soon as the JSCEM report was released.

The minority report

It is somewhat surprising that with recent polls suggesting a majority of Australians support the dual citizenship disqualification, only one committee member reflected this view and concluded constitutional change was not required.




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


In his minority report, Liberal Ben Morton stated “there has been no compelling argument” to remove the dual citizenship disqualification. He also confirmed he would campaign against any constitutional change attempting to remove this requirement.

This provides further insight into why a referendum will not occur. A government holding a one-seat majority simply cannot risk the distraction and destabilisation of a constitutional referendum that would divide its own members.

Other reform options?

Despite this, majority report did go on to recommend a number of practical strategies to “mitigate the impact of section 44” if constitutional change is not pursued.

These include the development of online self-assessment tools, additional education and support for candidates, formalising the parliamentary referral process, and working with foreign governments to streamline citizenship renunciations.

These are mostly sensible recommendations that will encourage greater compliance with the existing constitutional provisions. Given it is highly unlikely a referendum will happen, they are also the most important in practical terms.

The JSCEM report provides a number of practical recommendations to improve compliance with section 44. But it also confirms there is no easy fix.

The ConversationInstead, it looks as though the dual citizenship saga still has a long way to go.

Lorraine Finlay, Lecturer in Law, Murdoch University

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

Centre Alliance’s Rebekha Sharkie most vulnerable at byelections forced by dual citizenship saga



File 20180510 185500 18viidv.jpg?ixlib=rb 1.1
Rebekha Sharkie’s seat of Mayo is the most likely to change hands at the byelection, after she resigned in the light of the dual citizenship saga.
AAP/Lukas Coch

Adrian Beaumont, University of Melbourne

On Wednesday morning, the High Court disqualified Labor’s ACT Senator, Katy Gallagher. As a senator, Gallagher’s disqualification will not require a byelection; she will be replaced by Labor’s second candidate on its ACT ticket, David Smith.

However, Gallagher’s case was seen as a test case for four House members: Susan Lamb (Labor, electorate of Longman), Josh Wilson (Labor, Fremantle), Justine Keay (Labor, Braddon) and Rebekha Sharkie (Centre Alliance, Mayo).

By Wednesday afternoon, all four of these members had announced they would resign from Parliament and recontest their seats at subsequent byelections. With the Perth byelection that was required last week, there are likely to be five federal byelections on the same date.




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


All byelections will be held on 2016 boundaries, even if there has been a redistribution in the state in which the byelection takes place. As the incumbent will be recontesting, the byelections caused by section 44 are different from most byelections.

At the 2016 election, Labor gained both Braddon and Longman by defeating Coalition incumbents. Labor’s 0.8% margin in Longman, and 2.2% margin in Braddon do not reflect the “sophomore surge” effect.

If Longman and Braddon were held at a general election, Labor would expect to do better in those seats than nationally, as their new incumbents should receive a personal vote bonus, while the Coalition loses the personal votes of their previous members.

A negative for Labor in Longman is One Nation preferences. In 2016, One Nation won 9.4%, and their how-to-vote cards put Labor ahead of the LNP; Labor won 56.5% of One Nation preferences. One Nation is now more pro-Coalition than in 2016, and is likely to recommend preferences to the LNP at the byelection. However, One Nation’s primary votes are likely to come more from the LNP than Labor, mitigating damage from One Nation’s preferences.

Labor has a 7.5% margin in Fremantle, and the Liberals are more likely to focus on Perth (Labor by 3.3%), where the incumbent Labor member is not recontesting.

In Mayo, the Centre Alliance’s Rebekha Sharkie (formerly Nick Xenophon Team) holds a 5.0% margin against the Liberals. However, Xenophon’s attempt to win the balance of power in the South Australian election failed dismally, as his party won zero lower house seats.




Read more:
Liberals win South Australian election as Xenophon crushed, while Labor stuns the Greens in Batman


It is likely Xenophon’s failure will affect Sharkie, although her profile as a sitting member will help her. Sharkie’s interest would be best served by running as an independent, not endorsing Centre Alliance policies. The former Liberal MP Jamie Briggs was negatively perceived, explaining some of the swing to Sharkie in 2016.

On a two party basis, the Liberals hold a 5.4% margin against Labor, a 7.2% swing to Labor since the 2013 election. However, some of this swing is explained by Briggs, and Labor is unlikely to be competitive with a better Liberal candidate.

In summary, I think it is likely that Labor will hold all four of its seats, and that Sharkie is the most vulnerable at these byelections.

Essential: 53-47 to Labor

This week’s Essential, conducted May 3-6 from a sample of 1,033, gave Labor a 53-47 lead, unchanged since last fortnight. Primary votes were 38% Coalition (up one), 37% Labor (up one), 10% Greens (down one) and 6% One Nation (down two). This will be the last poll conducted before the budget.

Malcolm Turnbull’s net approval was -2, up one point since April. Bill Shorten’s net approval was -4, up four points. Turnbull led Shorten 40-26 as better PM (41-26 in April).

39% (up six since November 2017) thought the Australian economy was good, 32% (down six) thought it was neither good nor bad, and 24% (steady) thought it was poor.

Since May 2017, there was an 11-point increase in those thinking the budget should increase assistance to the unemployed, and eight-point increases for aged pensions, affordable housing and assistance to the needy. The only large decrease was for public transport infrastructure (down six).

28% thought more funding for schools and hospitals most important for the budget, followed by 22% for supporting industries that create jobs, 17% for personal tax cuts, 12% for building infrastructure and 8% for fully funding the NDIS.

Status quo result likely in Tasmanian upper house elections

Every May, two or three of Tasmania’s 15 upper house seats hold elections for a six-year term. Currently the left has control with eight seats (four Labor and four left-wing independents). On Saturday, elections were held in Hobart and Prosser.




Read more:
Dems easily win Virginia and New Jersey governors. Left gains control of Tas upper house


Tasmanian analyst Kevin Bonham has more details. In Hobart, left-wing incumbent independent Rob Valentine defeated another left-wing independent challenger, 61-39, with the Liberals a distant third.

In Prosser, in a field of 13, Liberal Jane Howlett had 26.1%, Labor’s Janet Lambert 22.0% and independent Steve Mav 19.8%. Bonham thinks Howlett is most likely to win when preferences are distributed next Tuesday, the final day for receipt of postals.

If either Howlett or Mav wins in Prosser, the right and left will retain their seats, with no change to the overall balance of power.

In brief: UK local elections, Malaysian election, Australian vs US employment

I wrote for The Poll Bludger about the May 3 UK local government elections. According to the BBC’s projected national vote share, Labour and the Conservatives tied on 35% each. This was the first major UK electoral test since Labour surged back at the June 2017 general election to deny the Conservatives a Commons majority.




Read more:
Conservatives suffer shock loss of majority at UK general election


In Wednesday’s Malaysian election, the party that had governed Malaysia since independence in 1957 was defeated. Former PM, and current opposition leader, Mahathir Mohamad, will become the new PM, the oldest head of government in the world at the age of 92. The opposition parties gained 54 seats from the government.

The ConversationI have written about the Australian and US employment figures on my personal website. The current US unemployment rate is 3.9%, while Australia’s is 5.5%, but Australia’s participation rate is 2.7% higher than in the US. As a result, in my opinion, Australia’s employment situation is better than in the US.

Adrian Beaumont, Honorary Associate, School of Mathematics and Statistics, University of Melbourne

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

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


Anne Twomey, University of Sydney

In one fell swoop, the High Court’s judgment about the eligibility of Katy Gallagher as a Senator disposed of five members of Parliament.

Not only was Gallagher disqualified, but the consequence was that Susan Lamb, Justine Keay, Josh Wilson and Rebekha Sharkie had no legal ground left to stand on. They had to resign, and they did.

In each case, although they had initiated the procedure to renounce their foreign citizenship before the nomination date at the last election, that procedure had not been completed in the United Kingdom and they were still formally British citizens on nomination day. That was enough to see them disqualified.

A change in the law or a clarification?

The ALP had previously boasted of its rigorous vetting of its candidates, and expressed certainty they were all validly elected.

What went wrong? Has the High Court changed its interpretation of the Constitution or has it been consistent, as the Liberal Party claims?

The answer is that the previous position, as set out by the High Court, was ambiguous and could legitimately have been interpreted in two different ways. What the High Court did was to clarify the law by removing the ambiguity.




Read more:
Explainer: what the High Court decision on Katy Gallagher is about and why it matters


When the issue was first dealt with in the 1992 case of Sykes v Cleary, Chief Justice Mason and Justices Toohey and McHugh rejected a strict reading of section 44(i) of the Constitution on the ground that it would:

result in the disqualification of Australian citizens on whom there was imposed involuntarily by operation of foreign law a continuing foreign nationality, notwithstanding that they had taken reasonable steps to renounce that foreign nationality.

They considered that it would

be wrong to interpret the constitutional provision in such a way as to disbar an Australian citizen who had taken all reasonable steps to divest himself or herself of any conflicting allegiance.

Their Honours pointed out that even at federation, Australia was a nation of migrants, and that:

it could scarcely have been intended to disqualify an Australian citizen for election to Parliament on account of his or her continuing to possess a foreign nationality, notwithstanding that he or she had taken reasonable steps to renounce that nationality.

The ambiguity was whether the “reasonable steps test”: (a) only applies where the person would otherwise be disbarred from parliament because he or she was unable to renounce the foreign citizenship by any reasonable means; or (b) applies to all categories of dual citizenship, including those that can readily be renounced by following a reasonable procedure. This would mean that a candidate need only take all the reasonable steps within his or her power to renounce the foreign nationality prior to the nomination date, even if the formal renunciation did not happen until after that date.

Either view about what the court meant could have been fairly taken, but on balance most scholars favoured interpretation (b) because their Honours went on to apply the test of “reasonable steps” to two candidates who had dual citizenship with countries that permitted renunciation.

It was therefore unsurprising that the ALP, in its legal advice to candidates, took interpretation (b), with the consequence that some of its candidates undertook the renunciation process before the nomination date, but not sufficiently early for the renunciation to be completed prior to nomination.

While this approach was legitimate, it was not the most cautious one, as it involved a risk of invalidity if the High Court later decided that (a) was the correct approach.

Doubts arose about this interpretation when the High Court handed down its judgment last year in relation to Barnaby Joyce and the other “citizenship seven” in the Re Canavan case.

There, when discussing the “reasonable steps test”, the High Court did so solely in the context of the “constitutional imperative” to avoid the “irremediable exclusion” of citizens from being capable of election to parliament.

This left lawyers wondering whether the reasonable steps test applied more broadly, and the court had simply not mentioned it in that context, or whether the Court was confining its application to circumstances where the foreign citizenship could not be renounced at all.

What the High Court decided in the Katy Gallagher case

We now have an answer – the court took interpretation (a) above. It held that the “reasonable steps test” only applies where it is impossible or not reasonably possible to renounce the foreign citizenship.

In such a case, the person must still take all reasonable steps within his or her power to renounce that citizenship (but not the “unreasonable” ones). Once this is done, the person can stand for Parliament even though the foreign citizenship continues.

But if the impediment is simply slow processing, or that renunciation is a matter of discretion, this is not enough to trigger the exception. The process of renunciation has to be completed in accordance with the law and procedures of the foreign country before the person nominates as a candidate in a Commonwealth election.

Has this now resolved all the problems?

We now have more certainty than we did a year ago. We know that a person can be disqualified for holding dual citizenship, even when it was inherited through parents and the person holding it did not know of its existence. Ignorance is no excuse. We also now know that a person has to complete the process of renunciation of that foreign citizenship before he or she nominates to stand for parliament, even if it takes a long time to complete it.

The only exemption will be if it is impossible to renounce the foreign citizenship or the steps for doing so are unreasonable, such as a requirement that would involve a risk to the person, such as residency in a dangerous country.

It is in this area that there may yet be litigation. Some countries make it very difficult to renounce foreign citizenship, and the court may have to decide in the future about the point at which that difficulty becomes unreasonable. So this may not necessarily be the last of these cases.

What are the ramifications?

In practice, it will mean that political parties need to complete their pre-selection processes well before an election to allow sufficient time for any renunciation. If there is a snap election, or where casual vacancies or byelections occur and a candidate is needed quickly, those with dual citizenship may have to be passed over if there is not enough time to renounce the foreign citizenship.




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


It is also likely that arrangements will be made with some countries, such as the United Kingdom, to fast-track processing of renunciation to deal with this problem.

But in other countries, this will not be feasible, so some potential candidates will have to renounce a long time in advance in order to be ready to nominate if the opportunity arises. The message to every aspiring politician is to check your family tree, identify any foreign citizenship you may have and renounce now.

Can this be fixed?

Realistically, the only way of removing this problem is by way of a constitutional amendment approved by a referendum. There have been many past proposals to repeal this disqualification, or to replace it with a requirement that all candidates be Australian citizens, or instead to give parliament the power to deal with the issue by legislation.

It would not be necessary to abandon the principle that members of parliament have sole allegiance to Australia. Instead, this could be achieved by legislation that puts control over renunciation of foreign citizenship into Australian hands.

The biggest problem with the current provision is that both the law as to who is a foreign citizen and the procedure to renounce it are outside Australian control.

Would such a referendum be successful? I have my doubts. It is likely to be perceived as something to help politicians, not the people.

The ConversationBut this High Court judgment will make it more difficult for people from some countries to become members of parliament, and that unfairness may provide a stronger argument to support a referendum to change the system.

Anne Twomey, Professor of Constitutional Law, University of Sydney

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

Four MPs resign as citizenship crisis causes more havoc


Michelle Grattan, University of Canberra

Update

Voters in four states will face byelections after three Labor MPs and a crossbencher announced they were resigning from parliament in the wake of a landmark High Court decision disqualifying ACT Labor senator Katy Gallagher on the grounds that she was a dual British citizen when she nominated for the 2016 election.

Labor’s Josh Wilson (WA), Justine Keay (TAS), and Susan Lamb (QLD) and the Centre Alliance’s Rebekha Sharkie (SA) quit within hours of the judgement.

Another byelection will also come from the proposed resignation of the ALP’s Tim Hammond (WA) who is stepping down for family reasons.

Lamb, who holds the highly marginal Queensland seat of Longman will have to renounce her British citizenship before she can recontest her seat. Bill Shorten said he was confident she could do so in time for a byelection.

Earlier story

The High Court has disqualified ACT Labor senator Katy Gallagher from sitting in parliament, in a decision opening the way for four byelections, three of them in Labor seats.

The decision, reigniting the citizenship crisis, has transformed the immediate political landscape, overshadowing Tuesday’s budget and putting immense pressure on Opposition Leader Bill Shorten, who delivers his budget reply on Thursday, to have three ALP MPs immediately quit.

Gallagher was ineligible to sit because she had not completed the renunciation of her dual British citizenship when she nominated for the 2016 election.

The four MPs in the firing line are Susan Lamb in the Queensland seat of Longman (0.8% margin), Justine Keay from Braddon in Tasmania (2.2%), Josh Wilson who holds Fremantle in Western Australia (7.5%) and crossbencher Rebekha Sharkie from the South Australian seat of Mayo (5.4%).

Labor already faces a byelection for the seat of Perth, with Tim Hammond announcing last week he would resign for family reasons.

Attorney-General Christian Porter declared the court had provided a “crisp and crystal-clear clarification” of the law. He called for the resignations of the Labor MPs by the end of the day.

Porter flatly rejected Shorten’s earlier statement that the court had set a new precedent. Shorten said Labor would now consider the implications of the decision.

Porter said for Shorten to claim it was a reinterpretation was “talking absolute rubbish”.

“We all knew what the circumstance was last October”, when the court ruled on the case of the Nationals’ Matt Canavan, Porter said.

“Bill Shorten must require the resignation of those three Labor members today, and that must occur before close of business today,” he said.

Neither side looks forward to a plethora of byelections, which are expensive and with unpredictable fallout, so close to a general election.

The contest in Longman would be testing for Labor. The Liberals would have a prospect of picking up Mayo. Sharkie is from the Centre Alliance, formerly the Nick Xenophon Team, the fortunes of which have collapsed.

University of Sydney constitutional expert Anne Twomey said the crux of the court’s decision was that the test of someone having taken reasonable steps to renounce their foreign citizenship – the argument on which Gallagher relied – applied only when the country actually or effectively would not let the person renounce. This did not apply with UK citizenship.

Twomey said the four MPs in question, who were all British citizens when they nominated, were in similar circumstances to Gallagher’s.

She added that “the real problem will be for those people from countries where it is difficult to renounce or it takes a very long time.

“Parties will have to complete pre-selection at least a year before an election to allow sufficient time for renunciation, and even this might not be enough for people from some countries.

“It will also narrow the field for filling casual vacancies to those who have no foreign citizenship, so that renunciation problems can be avoided. The big message here for anyone who might want to be a member of parliament in the future is to renounce now.”

George Williams, from the University of New South Wales, said there could be more MPs caught by the decision.

As a senator, Gallagher’s disqualification does not trigger a byelection – she is set to be replaced on a recount by the next person on the ALP ticket, David Smith.

Sharkie said she would now take urgent legal advice.

“It is my belief that the particulars of my circumstances are materially different to Senator Gallagher’s case. My paperwork was lodged and received by the UK Home Office before the election was called. My paperwork was returned before the election was held.”

Porter rejected her argument that her circumstances were different.

Gallagher said she had always acted on legal advice which indicated she satisfied the eligibility requirements. But she respected court’s decision.

“I believe that I have more to contribute to public life and I will take the time to talk with Labor Party members on how I can do this over the months ahead,” she said.

The citizenship crisis has claimed nine federal parliamentarians since the election. Another two, Barnaby Joyce and John Alexander, were either ruled ineligible or resigned but are still in parliament after being returned at byelections.

The ConversationIn the earlier stages of the citizenship crisis Shorten had been adamant that all Labor MPs had fulfilled the constitutional requirement on citizenship.

Michelle Grattan, Professorial Fellow, University of Canberra

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

Explainer: what the High Court decision on Katy Gallagher is about and why it matters



File 20180508 46359 4wmp1x.jpg?ixlib=rb 1.1
Senator Katy Gallagher knew she was a British citizen at the last election, but maintains she took “all reasonable steps” to renounce it.
AAP/Lukas Coch

Lorraine Finlay, Murdoch University

Over the past two months, things have been uncharacteristically quiet on the dual citizenship front. That is all about to change when the High Court (sitting as the Court of Disputed Returns) hands down its long-awaited decision on the eligibility of Senator Katy Gallagher. Whatever the result, this decision has implications beyond the immediate fate of the Labor senator.

What is the case about?

After ten months of controversy and numerous parliamentary disqualifications, resignations and byelections, every Australian knows that section 44 of the Australian Constitution disqualifies dual citizens from sitting in the Australian parliament. Gallagher was referred to the High Court after the Parliamentary Citizenship Register revealed she was a dual British citizen when she nominated for the 2016 federal election She had gained citizenship by descent through her British-born father.




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


Unlike the previous cases, Gallagher admits she knew of her dual citizenship, but maintains she was still eligible because she had taken “all necessary steps” to renounce it.

Before nominating, Gallagher had submitted the prescribed renunciation form and the renunciation fee had been debited from her credit card. However, the UK Home Office subsequently requested further documents and did not formally register her renunciation until after the 2016 federal election.

What will the court decide?

The question before the High Court is whether somebody who has begun the renunciation process but is technically still a dual citizen at the time of nomination is eligible to be elected to parliament.

In one of the earliest cases considering dual citizenship in 1992, the High Court raised the possibility of an “all reasonable steps” exception to the dual citizenship disqualification. In the recent “Citizenship Seven” case the court confirmed there were limits to section 44. It found that if a foreign law made it impossible (or not reasonably possible) for a person to renounce their foreign citizenship, they would not be disqualified provided they had taken “all reasonable steps” within their power to renounce.

The present case turns on just how wide the “all reasonable steps” exception is held to be. Does section 44 just require a person to take all reasonable steps within their power to renounce, regardless of whether that renunciation is actually effective? Or is the exception limited only to circumstances where a foreign law makes renunciation practically impossible?

As the prime minister has learnt, it is never easy to predict with any certainty what the High Court will decide. If Senator Gallagher is to remain in parliament, she needs the court to take an expansive approach to the section 44 exception.

However, in both the Citizenship Seven and Hollie Hughes cases, the High Court has adopted a stricter interpretation of section 44, which would likely lead to disqualification if it approaches this case in the same way.

What happens next?

Obviously the High Court decision will have an immediate impact on Gallagher. If she is found to be ineligible, then a recount will likely mean that her replacement in the Senate is David Smith. He was the second ALP Senate candidate for the ACT at the 2016 election.




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


Importantly, this is a decision that has potential impacts on at least four other parliamentarians. The citizenship declarations of Susan Lamb, Justine Keay and Josh Wilson from the ALP, and Rebekah Sharkie from the Centre Alliance, all show they were technically British dual citizens at the time of nominating for the last federal election.

All four have made similar claims to Gallagher in terms of having taken “all reasonable steps” to renounce their dual citizenship. If Gallagher is held to be ineligible, the status of these members will undoubtedly also be in question.

Importantly, there are factual differences between all of these cases. This means much will turn on the precise reasoning contained within the High Court decision on Gallagher. If the court adopts the same strict approach as in recent section 44 cases, there would be a strong case for arguing that these other four parliamentarians should resign immediately.

Conversely, if the court finds Gallagher is eligible, much of the heat will be taken out of the dual citizenship controversy. It may even mean that we have seen the last of the dual citizenship referrals.

Parliamentary committee report

In all the speculation about the pending High Court decision, it should not be forgotten that the Joint Standing Committee on Electoral Matters is expected soon to hand down its final report following its inquiry into section 44.

The committee is widely expected to recommend that certain aspects of section 44 be removed through a constitutional referendum. Any such referendum could be held at the same time as the next federal election, although the prime minister has previously ruled this option out.

The ConversationWhile today’s High Court decision will have an immediate impact on the composition of the current parliament, the committee report is perhaps even more significant in terms of its potential effect on the broader conversation about section 44 and constitutional reform.

Lorraine Finlay, Lecturer in Law, Murdoch University

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

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.

https://www.podbean.com/media/player/99z29-862eb3?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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