How will Indigenous people be compensated for lost native title rights? The High Court will soon decide


William Isdale, The University of Queensland and Jonathan Fulcher, The University of Queensland

Today, the High Court of Australia will begin hearing the most significant case concerning Indigenous land rights since the Mabo and Wik native title cases in the 1990s.

For the first time, the High Court will consider how to approach the question of compensation for the loss of traditional land rights. The decision will have huge implications for Indigenous peoples who have lost their land rights and for the state and territory governments responsible for that loss.

For Queensland and Western Australia in particular, the outcome will likely provide clarity on the significant amounts of compensation they may be liable for in the future.

Western Australia, for example, has areas of determined native title that are collectively larger than the entire state of South Australia. Within those boundaries, there are a number of potential native title claims that could be compensable in the future.

In 2011, the state’s attorney-general, Christian Porter, reportedly described potential compensation claims as a “one billion dollar plus issue”.

Background on native title

The Mabo decision first recognised, and the Wik decision later clarified, how Australia’s common law acknowledges and protects the traditional land rights of Indigenous peoples. Following some uncertainty and political clamour caused by both of those decisions, the Native Title Act 1993 provided a legislative structure for the future recognition, protection and compensation of native title.




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The act provides a right of compensation for the “impairment and extinguishment” of native title rights in a range of circumstances. However, it provides little guidance on what compensation means in practice. Parliament decided to leave the details to the courts.

Surprisingly, it was not until the end of 2016 that the first-ever compensation claim wound its way to the point of judicial determination – in the Timber Creek decision.

The Timber Creek decisions

The case coming before the High Court today is an appeal following two earlier decisions by the Federal Court.

In Griffiths v Northern Territory (the first Timber Creek decision), Federal Court Justice John Mansfield made the first-ever award of compensation for loss of native title rights.

Mansfield awarded the Ngaliwurru and Nungali peoples AU$3.3m in August 2016 for various acts of the NT government going back to the 1980s. These acts included grants of land and public works affecting areas totalling 1.27 square kilometres near the remote township of Timber Creek.

Mansfield approached the compensation award in three steps:

  • Firstly, he worked out the value of the land rights in plain economic terms. He did this by looking to the freehold market value of the land, but discounting it by 20% to reflect the lower economic value of the native title. This is due to the fact its use is limited to rights under traditional law and custom, such hunting and conducting ceremonies, but does not include a right to lease the land, for example.

  • Secondly, he considered how to compensate for the loss of the non-economic aspects of native title, such as cultural and spiritual harm. This involved having to:

…quantify the essentially spiritual relationship which Aboriginal people … have with country and to translate the spiritual or religious hurt into compensation.

  • Thirdly, he gave an award of interest to reflect the passage of time since the acts of the NT government occurred.

The decision was quickly appealed to the Full Court of the Federal Court, which corrected a few errors and reduced the award to just over AU$2.8m. But in broad terms, it approved the three-step approach Mansfield used to calculate the award.

Whether the High Court will follow the same path remains to be seen. A number of new parties, including various state governments, have now become involved in the proceedings, each with their own barrow to push.

The challenge of valuing native title

The challenge is that conventional methods for valuing land may not be suitable to reflect the unique nature of native title rights and the significance of those rights to Indigenous peoples. New principles, or adapted versions of old ones, may be needed.

For example, in most cases where a piece of land is resumed by a government for an infrastructure project or some other purpose, the principal measure of compensation is the market value of the land.

But in the case of native title rights, there is no market to value the land. Native title cannot be sold, mortgaged or leased. Further, native title is different in every case, with no uniform content. Native title rights can include everything from a right to exclusive possession of land to a very limited right to conduct traditional ceremonies on a piece of land.




Read more:
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Whether the Federal Court has taken the right approach – or whether a new approach should be adopted – will be the subject of debate in the High Court.

The Ngaliwurru and Nungali people contend the correct approach would have seen them awarded roughly AU$4.6m. The NT government is arguing, however, that the amount should be no more than about AU$1.3m.

The politics of Timber Creek

Just as Mabo and Wik resulted in political furore, so, too, may Timber Creek.

One sore point is between the federal government and the states and territories over who will pay any compensation. Under both the Keating and Howard governments, the Commonwealth undertook to pay 75% of the compensation a state or territory may be required to pay in future claims (with some exceptions).




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But in 2011, Porter tabled in the WA parliament a letter from Prime Minister Julia Gillard renouncing any Commonwealth obligation “for the cost of native title compensation settlements”.

Porter may now find himself on the opposite side of the table, having shifted from state supplicant to his new position as a Commonwealth purse holder.

Just how much political friction there will be will depend on the High Court’s approach to determining compensation and the potential cost if hundreds of other native title groups pursue compensation claims in the future.The Conversation

William Isdale, Postgraduate Research Student, T.C. Beirne School of Law, The University of Queensland and Jonathan Fulcher, Program Director, Energy & Resource TC Beirne School of Law, The University of Queensland

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

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Four MPs resign as citizenship crisis causes more havoc


Michelle Grattan, University of Canberra

Update

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

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

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

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

Earlier story

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sharkie said she would now take urgent legal advice.

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

Porter rejected her argument that her circumstances were different.

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

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

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

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

Michelle Grattan, Professorial Fellow, University of Canberra

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

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



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

Lorraine Finlay, Murdoch University

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

What is the case about?

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




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

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

What will the court decide?

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

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

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

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

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

What happens next?

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




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


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

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

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

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

Parliamentary committee report

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

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

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

Lorraine Finlay, Lecturer in Law, Murdoch University

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

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.

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.

https://www.podbean.com/media/player/g8gar-796795?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 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’


File 20171027 13355 8drbd7.png?ixlib=rb 1.1
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.