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.

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

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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.

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

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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.

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

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

Lorraine Finlay

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The same principle must also apply to our state parliaments.

Lorraine Finlay, Lecturer in Law

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

Grattan on Friday: Bill Shorten faces a summer of uncertainty

Michelle Grattan, University of Canberra

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

https://www.podbean.com/media/player/xac9s-7e77c6?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.

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

Michelle Grattan, University of Canberra

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

https://www.podbean.com/media/player/hdjfk-7dce11?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

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

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

Lorraine Finlay, Murdoch University

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

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

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

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

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

All reasonable steps?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Previous ineligibility

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

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

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

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

Lorraine Finlay, Lecturer in Law, Murdoch University

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

New blow for Labor as David Feeney hits citizenship hurdle

Michelle Grattan, University of Canberra

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dreyfus’ list included:

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

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

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

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

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

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

Update

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

https://www.podbean.com/media/player/hdjfk-7dce11?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

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

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Michelle Grattan, Professorial Fellow, University of Canberra

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

Citizenship crisis claims Nick Xenophon Team’s Kakoschke-Moore

Michelle Grattan, University of Canberra

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Michelle Grattan, Professorial Fellow, University of Canberra

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

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

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

Joe McIntyre, University of South Australia

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

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

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

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

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This issue will continue to dog all future parliaments.

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

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

Current version of Section 44.

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

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

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

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

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

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

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

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

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

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

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

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

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

Proposed version of Section 44.

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

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

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

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

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

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

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

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 High Court will publish its reasons later.

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Michelle Grattan, Professorial Fellow, University of Canberra

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