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.

The ConversationNevertheless, 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.

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


Michelle Grattan, University of Canberra

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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


Michelle Grattan, University of Canberra

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

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

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

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

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

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

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

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

The ConversationThe High Court will publish its reasons later.

https://www.podbean.com/media/player/k3zus-7afe23?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

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



File 20171109 27169 1oeueva.jpg?ixlib=rb 1.1
Rebekha Sharkie was registered as renouncing her UK citizenship after she nominated for election.
Mick Tsikas/AAP

Michelle Grattan, University of Canberra

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

https://www.podbean.com/media/player/k3zus-7afe23?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

Joyce will be safe in New England but the High Court disrupts the government


Michelle Grattan, University of Canberra

In more than an understatement, Malcolm Turnbull opened his news conference after the High Court’s swingeing blow to the government by saying this was “clearly not the outcome we were hoping for”.

And indeed, not the outcome Turnbull had so unequivocally predicted when, in August, he told parliament that Deputy Prime Minister Barnaby Joyce “is qualified to sit in the house and the High Court will so hold”.

As the weeks have gone by the government has become less and less confident that the position of Joyce and his deputy, senator Fiona Nash, would be upheld. At the same time, the betting on the survival of the third National, Matt Canavan, firmed, as the complexities of Italian law were examined.

Joyce himself says he wasn’t surprised he was disqualified. “In my gut I thought this is the way it was going to go,” he told reporters on Friday. As things have turned out, Joyce’s gut was a better predictor than Turnbull’s barrister background.

In a not-so-subtle dig, Joyce told the ABC’s 7.30 that tactically, it would have been better to have gone to a byelection immediately when he became aware he was a New Zealand citizen by descent, but he had deferred to the solicitor-general’s advice – which played up the prospect of a court victory.

Of the seven current and ex-MPs before the court in the dual citizenship cases, only Canavan and Nick Xenophon have had their eligibility upheld. Not that Xenophon is staying around in federal politics – he made his farewells on Friday and after clearing some odds and ends he will be off to create a storm in South Australian politics.

As well as kiboshing the two Nationals, the court knocked out One Nation’s Malcolm Roberts, who is now pitching for Queensland politics; it also rejected the eligibility of the two Greens, Larissa Waters and Scott Ludlam, who’d already resigned from the Senate.

The December 2 New England byelection that Joyce will now contest is a huge distraction for the government. As it battles with the states to get its energy policy in place, and deals with other issues in coming weeks, a mini judgement day is the last thing it needs.

The government has moved to get the byelection over as quickly as possible, with writs issued immediately.

In the only good news Joyce received on Friday, Tony Windsor, the one-time independent member for New England, announced he won’t contest the byelection.

Windsor had tormented Joyce by a submission to the High Court arguing against his eligibility, and by keeping open the option of entering the race if there was a vote.

But, apart from any other considerations, he probably judges that his chances of taking the seat would be poor. Even though he is not a candidate, the Nationals expect he will be running interference in the campaign.

It is nearly unthinkable that Joyce won’t win, whomever he now faces. Labor polls poorly in the seat. A protest vote could go to the Shooters, Fishers and Farmers Party, One Nation, and independents. But recent polling, which was done assuming Windsor ran, has shown Joyce in a comfortable position.

The court decision leaves the cabinet something of a mess. A temporary patch-up has had to be done until after the byelection, with Turnbull taking Joyce’s ministerial duties – he was sworn into agriculture and water resources on Friday – and other ministers acting in Nash’s roles. This obviously means there will be some limbo in the affected portfolios.

A permanent reshuffle has to wait. When it comes the Nationals are expected to lose a frontbench position, because in a recount for Nash’s seat a Liberal is set to replace her.

After the dust settles the Nationals will also have to elect a new deputy.

With Joyce and Nash out, the Nationals’ voice will be more muted in cabinet for a time, although at least Canavan is back, returned on Friday to his resources ministry.

The Nationals have been preparing for this court outcome (if only they had been as diligent in checking their MPs’ constitutional eligibility). Joyce has been paying a noticeable amount of attention to his seat in recent weeks. On Friday night the Nationals were setting up their Tamworth campaign office, and people were appearing in Barney Army t-shirts.

Leadership arrangements were also smoothly put in place, by the Nationals’ parliamentary party and the party’s organisation. Joyce is staying overall party leader while the party’s Senate leader, Nigel Scullion, becomes the interim leader of the parliamentary party.

But, in a sign of the immediate disruption the High Court fallout is causing the government, Turnbull has delayed his trip to Israel – he was due to leave Saturday to join the commemoration of the 100-year anniversary of the Battle of Beersheba.

And late Friday, the government couldn’t say who will be acting prime minister when Turnbull undertakes the Israel trip or goes to APEC soon. While Nationals might accept that Julie Bishop would be more obvious than Scullion for that role, they were not pleased to see the Bishop name in the media. They will be wanting Turnbull to observe the niceties of proper consultation.

The opposition will use the coming weeks to cause what mischief it can. Joyce being disqualified means the government has lost its majority on the floor of the house, although Turnbull told the media “we have a majority of members in the House of Representatives, even in the absence of Barnaby Joyce”. This is, if you count in the casting vote of Speaker Tony Smith.

The government has a buffer, thanks to the crossbench and the Speaker, against any no confidence vote. But prepare for coming Labor shenanigans in parliament. It won’t try a no-confidence motion that would look bad and be lost. But it could, for example, join with crossbenchers to push for a motion for a royal commission on banking, and something on penalty rates, trying to lure Queensland National George Christensen across.

Labor is also questioning the ministerial decisions Joyce and Nash made. Labor deputy leader Tanya Plibersek said: “Every decision made by both Barnaby Joyce and Fiona Nash since October last year is under a legal cloud. Labor will now take some time to work carefully through the implications of the [High Court] decision.”

Just to complicate the situation further, there is a general anticipation of an imminent announcement of a Queensland state election, with neither side of politics confident in predicting the likely outcome but both anticipating that One Nation could hold the balance of power.

How the Liberal National Party polls in Queensland will have Canberra fallout, because it will be read as a pointer to the general mood there – and Queensland will be critical to the federal Coalition at the next election.

The ConversationAs for New England, while no-one anticipates Joyce will fail to retain the seat, the sort of result he gets will be important to how the government ends a difficult year.

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Michelle Grattan, Professorial Fellow, University of Canberra

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

High Court rules Joyce and Roberts ineligible. SSM plebiscite turnout high


Adrian Beaumont, University of Melbourne

In July and August, six Senators and Deputy PM Barnaby Joyce were referred to the High Court as they may have been ineligible to stand for election or sit in Parliament. These cases were all considered under Section 44(i) of the Constitution, relating to having a foreign citizenship.

Greens Senators Larissa Waters and Scott Ludlam had resigned from the Senate once their dual citizenship was discovered, but the High Court still had to determine if they were validly elected. Nationals Senators Fiona Nash and Matt Canavan, One Nation Senator Malcolm Roberts and Senator Nick Xenophon did not resign.

Today, the High Court ruled that Waters, Ludlam, Nash, Roberts and Joyce were all ineligible to have been elected at the 2016 election, while Canavan and Xenophon were eligible. The four Senators found ineligible will be replaced after a special recount by the next on their party’s ticket.

As Joyce sits in the lower house, a by-election in his seat of New England is required, and will be held on 2 December. Joyce has divested himself of his NZ citizenship, and will run for this by-election. Independent Tony Windsor, who Joyce defeated 58.5-41.5 at the 2016 election, will not contest the by-election, so Joyce should win easily.

With New England vacant, the Coalition still holds 75 of the 149 current House seats, a bare majority. Unless Joyce loses the by-election, the Coalition retains its majority.

There are often big swings at by-elections, but in most by-elections, the government’s majority is not at risk. The stakes are higher in this by-election, which should help Joyce to mitigate the swing against him. It is very likely that Joyce will retain New England, and return to Parliament.

SSM turnout data and polling

As at last Friday 20 October, the ABS estimated it had received 11.9 million forms for the same sex marriage plebiscite (74.5% of the electorate). The ABS’s estimate is now based on forms scanned, rather than on the weight of containers with forms. On 13 October, an estimated 10.8 million forms had been returned under the old method. Only 300,000 forms were returned in the following week, so the ABS believes the old method was an underestimate.

In this week’s Essential, 75% said they had already voted, and a further 8% said they would definitely vote, implying a turnout of 83%. Those who had already voted favoured Yes by 60-34, while the remaining 25% favoured Yes 39-33.

High turnout could help Yes win an absolute majority of the whole electorate, not just of those who vote. Such a victory would give Yes more legitimacy, making it harder for conservative politicians to excuse delaying parliamentary action.

Today is the nominal deadline to post the envelope, but envelopes will be accepted until 6pm on 7 November. The result will be declared on 15 November.

ReachTEL 53-47 to Labor

A Sky News ReachTEL poll, conducted 25 October from a sample of 2400, gave Labor a 53-47 lead, unchanged since late September. ReachTEL is using respondent allocated preferences. At this stage, media reports do not include the forced choice that would have been asked of the 9% “undecided”. From the limited information that has been released, Kevin Bonham estimates the two party vote by last election preferences was 53.7-46.3 to Labor.

Turnbull’s better PM lead over Shorten narrowed to 51-49 (52-48 in September). ReachTEL uses a forced choice question for better PM, which tends to favour opposition leaders more than polls with a don’t know option. Shorten is much more likely to win a ReachTEL better PM poll than Newspoll.

39% of respondents had an NBN connection, and by 44-35, these people were dissatisfied with their connection. 92% are concerned about electricity prices increasing in the next year, including 68.5% very concerned. 52% selected cutting power prices as the most important priority, with 27% for reducing emissions and 20% reliability. Just 28% had heard a lot about the National Energy Guarantee.

This poll was taken Wednesday night, before most of the public were aware that the AWU investigation had backfired on Michaelia Cash. While the Cash affair is embarrassing for the Coalition, it may not move the polls as the public is cynical about all politicians, and expects some bad behaviour.

Essential 52-48 to Labor

This week’s Essential, from a sample of 1860, is unchanged on last week, with primary votes of 37% Coalition, 36% Labor, 9% Greens, 8% One Nation and 3% Nick Xenophon Team. Last week’s sample appeared bad for Labor, and that sample is still in the two-week aggregate. Labor’s lead may increase when that sample washes out next week.

By 35-18, voters approved of the NEG, with 47% unsure. By 35-32, they approved of not having a Clean Energy Target. By 41-32, voters disapproved of phasing out renewable energy subsidies by 2020. 31% thought power prices would increase as a result of the NEG, 16% decrease and 31% thought it would make no difference.

Voters would trust Labor by zero to 12 points over the Liberals on a range of energy issues. On all issues, at least 50% thought there was no difference between the major parties or didn’t know.

ReachTEL seat polls: Kooyong, Warringah and Wentworth

ReachTEL conducted three seat polls on 19 October for the left-wing Australia Institute. In Josh Frydenberg’s Kooyong, the Liberals led by 57-43, a 6 point swing to Labor since the 2016 election. In Turnbull’s Wentworth, the Liberals led by 57-43, an 11 point swing to Labor. In Abbott’s Warringah, the Liberals led by 60-40, a mere one point swing to Labor. Samples were 850-920 for each seat.

I think the low swing in Warringah is because ReachTEL asked for parties, not candidate names; this is reasonable as the identities of Labor’s candidates are unknown. Abbott is likely to be a significant drag on the Liberal vote in Warringah should he re-contest at the next election.

Japan election: landslide for governing coalition

The conservative LDP, with its Komeito ally, has governed Japan since its foundation in 1955, with only two brief periods in opposition. An election for Japan’s lower house was held on 22 October.

In Japan, electors receive two votes, one for a single member electorate and one for a proportional block. Unlike NZ and Germany, there is no attempt to compensate parties that do badly in electorates using the proportional allocation; these seats are simply added to electorate seats. At this election, there were 465 seats (down 10 from 2014), with 289 electorate seats and 176 proportional block seats.

In the electorates, the LDP steamrolled the opposition, winning 218 of the 289 electorates, with a further 8 electorates for its Komeito ally. In the proportional blocks, the governing coalition won 87 of the 176 seats, with 49 for the centre-left coalition and 40 for the populist right Hope Party and its ally. The LDP benefited from a divided opposition in the electorates, winning 48.2%, with 20.6% for their nearest opponent, the Hope Party.

The ConversationOverall, the governing coalition won 313 of the 465 seats, down 11 from 2014, but still more than a 2/3 majority, with the LDP alone winning 284 seats. The centre left won 69 seats, the populist right 61 and Independents 22.

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

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

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


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The High Court has ruled Scott Ludlam, Larissa Waters, Fiona Nash, Barnaby Joyce and Malcolm Roberts ineligible to have stood for parliament at the 2016 election.
AAP/Shutterstock/The Conversation, CC BY-ND

Gabrielle Appleby, UNSW

Today, the High Court announced the fate of the “citizenship seven”, with only senators Nick Xenophon and Matt Canavan surviving the legal ordeal. (Although the victory will be of limited relevance to Xenophon, who has in the meantime announced his resignation from the Senate to return to state politics in South Australia).

In the case, the High Court, acting as the Court of Disputed Returns, found that four of the six senators referred to it, and the only member of the House of Representatives (Barnaby Joyce), were disqualified under Section 44 of the Constitution. With the exception of Xenophon and Canavan, it was found that the MPs had never been validly elected.

The court has declared all five seats vacant. The senators will be replaced through a recount from the 2016 election. The House of Representative seat of New England will go to a byelection on December 2, which Joyce will contest.

In the meantime, Labor has refused to offer the Coalition a pair for Joyce’s absence, and the Coalition will maintain government on a knife-edge, with 74 seats plus the support of the crossbench, and, if necessary, the Speaker’s casting vote.

Leaving to one side the immediate political consequences of the decision, what did the High Court say about the interpretation of the restriction on foreign citizens running for parliament in Section 44? And is this the last time we will have to think about the matter?

The possible interpretations of Section 44

The crux of the constitutional case was the interpretation of Section 44 of the Constitution – specifically sub-section (i). That, relevantly, provides:

Any person who … is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Importantly, if a person is found to be in breach of Section 44 at the time they nominated for election, they will never have been validly elected.

The High Court has held that if a person has never been validly elected, their parliamentary votes during the time they purported to sit would still be valid.

However, questions have been raised as to the validity of the decisions of ministers who were not validly elected. This means there are possibly further unresolved issues around the validity of decisions made by Joyce and Fiona Nash, who, unlike Canavan, did not step down from their ministerial posts while the High Court made its determination.

Another important point that the court has previously clarified is that foreign citizenship is determined according to the law of the foreign state concerned.

None of the interpretations that were urged by the parties on the High Court were strictly literal readings of the words “citizen of a foreign power”. All the parties accepted that there had to be some level of flexibility, allowing a person who was technically a foreign citizen to nonetheless be able to run for parliament.

The real argument in the case, then, was how much flexibility could be read into the section.

The reason all the parties accepted that there had to be some flexibility in the words, was that the High Court had held as much in a 1992 decision of Sykes v Cleary. Relevantly, this case did not concern people who were unaware of their foreign citizenship, and so did not directly address the main point that was in issue for the citizenship seven.

Rather, the case stood for the proposition that a person may be a dual citizen and not disqualified under Section 44 if that person has taken “reasonable steps to renounce” their foreign nationality.

In the course of his dissenting judgment, however, Justice Deane made a comment that the provision should really only apply to cases “where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned”. In this way, Deane suggested there was a mental element to being in breach of the provision.

Many of the interpretations urged on the court drew on this idea. They ranged from requiring voluntary retention or acquisition of citizenship or requiring actual knowledge of foreign citizenship, to a test of whether a person was on sufficient “notice” to check their citizenship status, to a need for the person to have real allegiance to the foreign power.

The High Court opts for certainty

The High Court opted for an interpretation of the Constitution that promotes certainty for future cases.

In a (rare) unanimous decision, it adopted a reading that, as far as possible, adhered to the ordinary and natural meaning of the words. It accepted that the literal meaning would be adopted, with the only exceptions those that had been established in Sykes v Cleary.

The court refused to read further exceptions into the provision based on knowledge, notice or actual allegiance. It said to do so would import a worrying element of uncertainty into the provision, which would be “apt to undermine stable representative government”.

The application to the ‘citizenship seven’

Once the High Court resolved the interpretation of Section 44, it had to apply this interpretation to each of the citizenship seven. The only two MPs who they found not to have fallen foul of this strict reading were Xenophon and Canavan.

Xenophon had what was referred to as “British overseas citizenship”. This had been inherited through his father, who migrated from Cyprus while it was still a British territory. The court accepted that Xenophon, while technically a type of British “citizen”, held no right of entry or right of abode, and thus he did not have “citizenship” for the purposes of Section 44.

Canavan’s facts were more complicated. His alleged citizenship turned on a change in Italian citizenship law that occurred because of a decision of the Italian Constitutional Court when he was two. The court received expert evidence on the Italian legal position, and it ultimately accepted that they could not be satisfied that Canavan was, in fact, a citizen of Italy.

Each of the other senators and Joyce accepted that there were, technically, citizens of a foreign country at the time of their nomination. But they argued they had not known of this when they nominated for parliament. The court’s strict interpretation of Section 44 offered them no comfort.

Is this the end of the parliament’s Section 44 dramas?

In the immediate aftermath of the High Court’s decision, the government has announced it will refer the decision to the Joint Standing Committee on Electoral Matters to discuss, among other things, possible amendments to Section 44.

The issue, it would seem, is no longer the uncertainty around whether a person is or is not disqualified. Because of the strictness of the High Court’s interpretation, all potential parliamentarians are on notice to check thoroughly their citizenship status. Part of the referral to the committee is to investigate ways to “minimise the risk of candidates being in breach of Section 44”.

Rather, the more fundamental issue is now whether this is a desirable state of affairs given the large numbers of Australian citizens who are dual nationals, and who may not wish to renounce their citizenship to run for parliament. Thus, we as a nation stand to lose potential parliamentarians by excluding a pool of people that is likely to grow, not diminish.

Further, there is another question as to whether Section 44, when interpreted in this way, is apt to achieve its purpose. The High Court accepted that the purpose of Section 44 was to ensure that MPs do not have a split allegiance or loyalty.

The ConversationMany might argue that this purpose is still an important one. Even if that is accepted, it would seem that denial of eligibility to a dual national is a particularly blunt instrument to achieve it. On the one hand, it captures many people who do not even know they are dual citizens. On the other hand, the relatively easy step (in most cases) of renouncement means that those people who do have a split allegiance, but who want to run for parliament, have only to fulfil these formalities to do so.

Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW

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

High Court knocks Barnaby Joyce out in dual citizenship case as byelection looms in New England



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The High Court declared Barnaby Joyce ineligible to sit in parliament.
AAP/Mick Tsikas

Michelle Grattan, University of Canberra

The government has been forced to a December 2 byelection and lost its majority in the lower house after the High Court declared Deputy Prime Minister and Nationals leader Barnaby Joyce ineligible to sit in parliament.

The court also struck down the eligibility of deputy Nationals leader Fiona Nash, who is set to be replaced by the next candidate on the Coalition election ticket – Liberal Hollie Hughes.

But the third Nationals MP before the court, Matt Canavan, who quit the ministry after advice he was an Italian citizen, has been ruled eligible. He will return to cabinet immediately, and was sworn in late Friday. “On the evidence before the court, one cannot be satisfied that senator Canavan was a citizen of Italy,” the court said.

Seven current and former MPs were before the court, which was judging whether they were eligible under Section 44 of the Constitution – which prohibits dual citizens standing for parliament. The court was unanimous on its decision in all the cases, with the eligibility of five rejected and two upheld.

Senate crossbencher Nick Xenophon’s eligibility has been upheld – but he is resigning from federal parliament in the next week or so to contest the South Australian election. His party, the Nick Xenophon Team, will choose his replacement. Xenophon had an unusual form of British citizenship through his father, who came from Cyprus when it was a British territory.

One Nation’s Malcolm Roberts, who had British citizenship, is out. Pauline Hanson announced Roberts would stand for the seat of Ipswich in the coming Queensland election.

Former Greens senators Scott Ludlam and Larissa Waters, who had resigned from parliament, were found to have been ineligible to stand. Ludlam was born in New Zealand, and Waters in Canada.

Malcolm Turnbull told a news conference in Canberra the decision was “not the outcome we were hoping for”.

Some of the decisions contradict the legal advice the government had – in particular about Joyce, who inherited New Zealand citizenship via his father. Turnbull told parliament in August: “The leader of the National Party, the deputy prime minister, is qualified to sit in the house and the High Court will so hold”.

Turnbull will take Joyce’s portfolio of agriculture and water resources on an interim arrangement, and was sworn in late Friday.

Joyce heard the news while he was in his electorate. He goes into the byelection virtually certain to be returned – especially after the former independent MP for the seat, Tony Windsor, announced he would not stand.

Joyce apologised for the “inconvenience” of the byelection. “I respect the verdict of the court.”

He said he was always apprehensive. “I don’t actually stand here totally surprised,” he said. “In my gut I thought this is the way it was going to go.”

The Nationals’ Senate leader, Nigel Scullion becomes the interim party leader during the byelection. But Joyce remains leader of the party.

There will be a week of parliament before the byelection, which could be difficult for the government – but it will not be under threat, because it would have crossbench support against any no-confidence motion.

Independent MP Cathy McGowan said: “I will continue to supply confidence and support to the government”.

While Labor will seek to make some mischief, Speaker Tony Smith has a casting vote if there is a tied result on votes.

Turnbull, at a very brief news conference, insisted the government still had a majority in the house (on the basis of the Speaker’s casting vote).

Opposition Leader Bill Shorten tweeted:

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Deputy Labor leader Tanya Plibersek said: “Australia now has a hung parliament with a minority government”.

“We are deeply concerned Australia is facing a period of uncertainty”, because Turnbull had kept Joyce and Nash on his frontbench. She said Labor would be looking at the decisions made by the two ministers in the preceding weeks.

The ConversationTurnbull said the government would refer Section 44 of the Constitution to the parliamentary committee on electoral matters to consider whether it should be changed – which would require a referendum.

Michelle Grattan, Professorial Fellow, University of Canberra

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

High stakes for Turnbull government as High Court hears MPs’ citizenship cases


Michelle Grattan, University of Canberra

Barnaby Joyce is on tenterhooks. Despite Malcolm Turnbull’s confidence that the High Court will find for him, Joyce’s parliamentary eligibility is a key to how the government finishes the year.

From Tuesday to Thursday, the court will consider what is surely one of the most extraordinary set of cases to come before it – the constitutional position of seven current and former MPs who were dual citizens.

All but Joyce are or were senators, which means that the only potential byelection that could be caused is for Joyce’s seat of New England. Three are Nationals: Joyce, Fiona Nash and Matt Canavan. Canavan quit the ministry (but not the parliament) when his issue arose; Joyce and Nash remain on the frontbench.

The two Greens, Scott Ludlam and Larissa Waters, resigned from parliament when they discovered their dual nationality. It was Ludlam’s departure that started the dominoes falling, as others checked their positions. Both Greens argue they were ineligible to sit – although the Commonwealth is actually saying Waters was eligible.

The remaining two are One Nation’s Malcolm Roberts, and Nick Xenophon.

Roberts, Ludlam and Waters were born overseas. The rest had foreign citizenship by descent. Joyce and Ludlam were New Zealanders; Nash, Xenophon and Roberts had British citizenship; Waters found herself a Canadian because she was born there during her parents’ brief stay; Canavan was Italian.

There have been some bizarre twists. Canavan said initially his mother had signed him up to Italian citizenship without his knowledge; later it was found she hadn’t had to – he already had it.

This latter fact is important for the Commonwealth’s legal argument. It is contending the constitutional provision about citizenship was only intended to exclude those who acted positively to obtain foreign citizenship or knowingly kept it. If Canavan’s Italian citizenship was gained by positive action, he wouldn’t be protected by that argument, as he would be if he were Italian by descent.

Xenophon had a very weak form of British citizenship, via his father, who had emigrated from Cyprus, which was a British territory.

The court has already declared that Roberts, who sent questions about his status to defunct email addresses, was a British citizen when elected, although it has not yet ruled on his eligibility.

Section 44 (i) of the Constitution reads clearly enough, on the face of it.

A person cannot be chosen for or sit in federal parliament if he or she:

… 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.

To clear themselves of this potential problem, an aspiring parliamentarian has to take proper steps to renounce a foreign citizenship.

It’s notable the major parties, which have good vetting, aren’t caught up in this case, although there have been allegations against some of their MPs.

The government is arguing that if the MP was Australian at birth (whether born here, or abroad to Australian parents) and wasn’t aware of their dual citizenship, they should not be found ineligible – in other words, that ignorance is a defence.

But if the MP was born overseas and later naturalised, the government argues, they were on notice about potentially being a foreign citizen, regardless of what they thought was the case. In this instance, according to the government’s argument, ignorance is not a defence.

If the court clears most of the MPs, it would be an effective rewrite, through interpretation, of the literal wording of this section.

The potential implications of the court’s decisions are wide and varied.

With Ludlam and Waters already out of parliament, the issue is just how they are replaced. If the court agrees with their own assessments that they were ineligible, their replacements will be the next candidates on the Greens 2016 tickets in Western Australia and Queensland, respectively Jordon Steele-John and Andrew Bartlett (a one-time Australian Democrats senator and leader).

If the court upheld the eligibility of one or both, the replacement or replacements would be chosen by the party. Ludlam has indicated he would not seek nomination; Waters, anxious to return to parliament, would be expected to do so.

It’s always possible, incidentally, for someone elected via a countback to then resign, leaving the way for the party to choose the replacement.

If Roberts is knocked out, the next on the One Nation ticket is Fraser Anning, who recently avoided another constitutional impediment: bankruptcy.

Disqualification of Xenophon would see Tim Storer of the Nick Xenophon Team (NXT) installed. But if Xenophon’s eligibility is upheld, he will leave the Senate anyway, to contest the South Australian election. In that circumstance, his party would choose who followed him.

The disqualification of Nash and Canavan would lead to candidates down their respective 2016 New South Wales and Queensland tickets replacing them. That would create some internal complications regarding the numbers between the Coalition parties.

Professor Anne Twomey, from the University of Sydney Law School, noted that if Nash were disqualified and a recount held, she would most likely by replaced by the Liberal who was next on the joint ticket. She said:

Even if that Liberal then resigned in an effort to pass the seat back to the Nationals, the constitution requires that the person who fills the seat is a member of the same party as the senator who was ‘chosen by the people’.

This would not have been Nash, as she was disqualified, and therefore never validly chosen. It would be the Liberal who won the seat on the recount. This would mean that she would have to be replaced by a Liberal, upsetting the balance in the Coalition.

The loss of one or both National senators would also mean a reshuffle of portfolios. This would fit with Turnbull’s desire for an end-of-year reshuffle, but test the Nationals’ talent pool. (Canavan is out of the ministry but Joyce is acting in his roles.)

But it is the finding on Joyce that has the big implications. If he were forced to a byelection, it would rock the government – even though he would almost certainly retain his seat.

The first issue would be whether he stood down from the ministry.

Twomey noted that while the constitution allows a person to be a minister for three months without holding a seat, the problem would be that Joyce had not validly held a seat since July last year – “which suggests that his three-month grace period is well and truly over. On that basis he would have to stop acting as a minister immediately.”

With Joyce out of parliament, the government would lose its majority on the floor of the House of Representatives. The result of particular votes would depend on the issue, the crossbenchers and – if it came to that – the Speaker’s casting vote.

Fighting a byelection would be distracting and disruptive for a government struggling in the polls.

The former independent member for New England, Tony Windsor, who is maintaining in the High Court that Joyce should be disqualified, has not ruled out running in a byelection. One Nation could be in the field, as could the Shooters, Fishers and Farmers Party, whose support will be tested in the NSW byelections this weekend.

The Newspoll quarterly breakdown, published this week, has found the government under pressure in regional areas. But a ReachTEL poll done last month for the Australia Institute found the Nationals polling 44.6% in New England, Windsor 26.5% and One Nation 9.8%, Labor 8.4%, and the Greens 2.4%.

The Queensland election, expected to be announced very soon, would be another dynamic in a byelection situation.

If, on the other hand, Joyce’s eligibility is upheld, Turnbull’s end-of-year reshuffle becomes much easier, especially with a strong win for the “yes” case now expected in the marriage ballot.

That still leaves the challenge of energy policy. Energy Minister Josh Frydenberg on Monday signalled the government was turning its back on a clean energy target, a reflection of the strength of the conservative voices within Coalition ranks – a combination of right-wing Liberals and the Nationals.

On the present timetable, the government is likely to take the broad outlines of its energy policy to the Coalition partyroom when parliament resumes next week.

The ConversationBut the situation is fluid, with the outcome in the High Court the known unknown. While the timing isn’t precise, the court is expected to be quick with its decision. It is obviously not driven by politics, but it is alert to the need to provide political certainly as soon as possible.

Michelle Grattan, Professorial Fellow, University of Canberra

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

High Court sets dual citizenship hearings for October



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Malcolm Roberts is one of several MPs currently before the High Court.
AAP/Mick Tsikas

Michelle Grattan, University of Canberra

The High Court has rejected the government’s request to have MPs’ dual citizenship cases heard in mid-September, instead setting hearing dates of October 10, 11 and 12.

This prolongs the uncertainty for the government, which has the eligibility of two Nationals ministers – Barnaby Joyce and Fiona Nash – and former minister Matt Canavan under consideration.

Labor has made it clear it will continue to challenge the presence on the frontbench of Joyce and Nash. Opposition Leader Bill Shorten on Thursday repeated his call for the two to stand down from the ministry.

“It is an untenable, unsustainable situation for government ministers with a cloud over their eligibility to sit in their portfolios, making decisions.” Shorten said if it were “subsequently found out they weren’t eligible to sit in the parliament, the decisions they made can be appealed”.

The court currently has five current and former MPs before it – apart from Joyce and Canavan, they are two former Greens senators, Scott Ludlam and Larissa Waters, and One Nation’s Malcolm Roberts. Nash and crossbench senator Nick Xenophon will be referred to it when parliament resumes early next month.

Canavan’s lawyer revealed Canavan was an Italian citizen by descent since he was two years old, due to a change in Italian law at that time that enabled citizenship to be passed down through a person’s mother, not just their father.

This means that Canavan already had citizenship when his mother – of Italian descent but born in Australia – obtained it for him when he was an adult. He has said he only became aware she had signed him up after the citizenship issue blew up.

Solicitor-General Stephen Donaghue told the court the eligibility of Canavan, Joyce and Waters should be upheld, because they had not known they were dual citizens.

In contrast, Ludlam and Roberts had in the past filled out forms acknowledging they were citizens of other countries. Ludlam should be disqualified, Donaghue said, while Roberts’ situation turns on the timing of his renunciation form.

Roberts’ barrister said he needed more time before the case was heard.

The court has given standing in the case to Tony Windsor, who ran unsuccessfully against Joyce in New England at the last election.

Windsor held the seat as an independent until retiring at the 2013 election. He has not ruled out contesting if Joyce were declared ineligible and there was a byelection.

Windsor’s lawyer argued in court that Section 44 (i) of the Constitution was clear, and it was the candidate’s responsibility to check whether they were a dual citizen.

The ConversationPrime Minister Malcolm Turnbull repeated on Thursday that: “We are very, very confident that our members who have been caught up in this will be held by the court to be eligible to sit in the parliament”.

Michelle Grattan, Professorial Fellow, University of Canberra

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