To the High Court we go: six MPs under clouds in decisions that could undermine the government



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Deputy Prime Minister Barnaby Joyce is one of five MPs caught out in the ban in dual citizens holding seats.
AAP/Lukas Coch

Graeme Orr, The University of Queensland

Two green bottles and up to four blue ones. Falling from the parliamentary wall, unless the High Court saves them from the rules about MP qualifications. The six are now-resigned Greens senators Scott Ludlam and Larissa Waters, fellow upper house members Matt Canavan (LNP) and Malcolm Roberts (One Nation), and two government members of the lower house, Barnaby Joyce and David Gillespie (both Nationals).

At least that’s the latest count, as of Monday’s referral of Joyce to the court. I hesitate to file this piece lest the number rise again today.

What happens now?

First, a word on process. Gillespie’s case is different from the others, in two ways. He is not a dual citizen but faces claims about his “pecuniary interest” in a shop sub-leased to Australia Post. This is the constitutional rule that knocked out Family First senator Bob Day in April.

Also, Gillespie is being sued by his former Labor Party rival, acting as a “common informer” – a fancy term for an officious bystander who sues to enforce the law.

This avenue to challenge an MP has not been used before. It’s not entirely clear the court has power to declare Gillespie “not duly elected”. (As opposed to exacting a penalty from an MP, in the princely sum of A$200, for any day they sat while under a disqualification.)

The other five – facing dual citizenship claims – are not being sued at all. Rather, parliament has referred their positions to the court. A few things flow from that, aside from the Commonwealth almost certainly having to cover their legal costs.

One is that there is no belligerent plaintiff to argue against, say, Joyce. There will just be the solicitor-general, putting legal arguments for the Commonwealth, plus lawyers for whichever of the other four MPs or their parties choose to be represented.

Yet Joyce, Canavan and Roberts share a desire to convince the High Court that they are legitimate, arguing on related grounds that it might be unfair to unseat them.

Another is that while the election is long over, the High Court says it can undo an election on a reference from parliament. This is due to a quirky, 30-year-old ruling. I say quirky because, for more than a century, there’s been an absolutely strict time limit for challenging elections.

With electoral fraud, unlawful campaigning, or electoral commission stuff-up, a court case must begin within 40 days of the election. Yet the High Court says it can undo election results, long afterwards, over qualifications issues.

What will the MPs argue?

We must await the arguments, but it seems that Joyce, Canavan and Roberts will argue that they either took reasonable steps to renounce (Roberts) or that it was unreasonable to expect them to have known of their dual citizenship (Joyce and Canavan). In a 1992 case, the High Court softened the law against dual citizenship to allow a defence of “reasonable steps” of renunciation.

Roberts was born in India (after partition) to a Welsh father. He took some steps – three emails in one day on the eve of nominating, apparently – to renounce his UK inheritance. Was that enough, given the UK has a set application form and fee for renunciation? Roberts, some time after the election, received notice that his UK citizenship was expunged.

Canavan, Australian-born, asserts that his mother took out Italian citizenship on his behalf, without his knowledge.

Similarly, Joyce, also Australian-born, says he was blindsided to learn he had New Zealand citizenship via his NZ-born father. They want the court to inject a subjective element – actual or constructive knowledge of dual nationality – to avoid a finding that taking no steps to renounce does not meet the idea of “reasonable steps”.

It’s possible Joyce will also argue the details of NZ law. For example, whether it automatically bestowed citizenship on him, or whether he was merely guaranteed it if he applied to activate it.

The Greens pair, by resigning, seemed to admit they were disqualified. But MPs cannot declare themselves improperly elected. Only the court can do that.

Ludlam (New Zealand) and Waters (Canada) were each born overseas, but to Australian parents. They left their birth countries at the tender ages of three years and 11 months respectively.

At least in Waters’ case, her family lore (not law) was that her nationalisation as an Australian toddler terminated any Canadian status. In some countries, you lose your birth citizenship when you take out another nationality. This was the law in Australia until recently.

The logic of the Greens’ political position is to have their two Senate seats filled ASAP. Yet, in substance, their pair are hardly more blameworthy than the other MPs, who seek to fight on. They have hemmed themselves in, however, by resigning.

If the court found their disqualifications were OK, the Greens could reappoint them or any other Greens member, under the old rule for filling a “casual vacancy”.

Finally, to legal consequences. If a senator is declared “unduly elected”, the Australian Electoral Commission conducts a recount. Invariably, the next candidate in the party’s original electoral ticket inherits the seat.

That windfall beneficiary can keep it, or the party could cajole them to resign in favour of … the unelected MP. Because all of these MPs, with sufficient paperwork and knowledge, can fix up their qualifications.

Roberts and Waters say they’ve done that. Joyce and doubtless Canavan have that in train.

In a lower house seat, however, a recount would be crazy. The seat would go to the rival major party, robbing the electorate. Instead, the court effectively triggers a byelection.

In a worst-case scenario for Joyce (or Gillespie), he would recontest that fresh election. A lot would be at stake in New England (or Port Macquarie). But it’s hard to see the electors there treating now-ex-Kiwi Joyce as a fifth columnist.

The law is an unnecessary mess

All this is a law professor’s picnic.

Section 44, as it applies to elections, detracts from, rather than adds to, democracy. Its technicalities are a thicket, catching many a candidate. It sits oddly in a Constitution that never guaranteed a right to vote, leaving that small matter to the national parliament.

It’s time for reform. We inherited the dual citizenship rule, an old rule about fealty to one Crown, from our English forebears.

The ConversationThe founders struck it in stone in the Constitution. Yet state parliaments are fine with dual citizens being elected. So too is New Zealand. And, funnily enough, so nowadays is the UK.

Graeme Orr, Professor of Law, The University of Queensland

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

Hanson set to refer Malcolm Roberts to the High Court over dual citizenship questions



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Pauline Hanson said Malcolm Roberts has her full backing.
Lukas Coch/AAP

Michelle Grattan, University of Canberra

Pauline Hanson is set to move that the High Court consider the eligibility of One Nation senator Malcolm Roberts. There is a question mark over whether Roberts was a dual British citizen when he nominated for parliament.

Hanson’s announcement came after it was obvious a Greens move for a referral would be successful. This followed BuzzFeed News on Tuesday posting online Roberts’ signed application for Australian citizenship, in which he declared he was a British citizen at age 19 in 1974.

Whether Roberts was a dual national has been a long-running issue, with Roberts changing his story, from saying he was never a British citizen to most recently claiming he had renounced his British citizenship but refusing to make public the documentation. Under Section 44 of the Constitution a dual citizen is ineligible to stand for federal parliament.

Hanson and Roberts appeared at an often heated joint news conference, at which she declared he had been “eligible to stand at the time of nomination”.

In a statement, Hanson said that One Nation would be supporting Roberts “in his plan to refer himself to the High Court”. Later the statement was revised to say Hanson would move the referral.

She said it had always been Roberts’ “intention to submit his citizenship documents for public scrutiny”.

“In light of the major parties’ decision not to hold a full inquiry into the citizenships of senators, it was deemed that the High Court would provide senator Roberts the best opportunity to prove he has complied with the Australian Constitution and is lawfully elected,” she said.

“Senator Roberts has my full backing and total support from his fellow One Nation senators.”

Hanson told reporters Roberts’ case was “not straightforward” but “very complex”. “You don’t understand the full situation.”

Asked about what he had said on his application form, Roberts said: “I was a citizen of the UK and colonies … We all know that back then we were very strong members of the Commonwealth, we still are, we sang God Save The Queen until not long before then, I always thought that I was Australian, always thought I was Australian.”

The referral will have general agreement in the Senate. Earlier the government had resisted action against Roberts, with its Senate leader, George Brandis, saying on Tuesday that: “A person lodges an apparently regular nomination for an election, and they are declared to have been elected, then the onus of proof … lies on those who seek to prove that they weren’t validly elected to demonstrate that that is the case”.

The referral of Roberts is the latest in a dramatic series of events that has thrown the Senate’s membership into turmoil and given the High Court an extraordinary number of cases to deal with.

Apart from Roberts’ future, these include ruling on the filling of the places of two Greens senators, Larissa Waters and Scott Ludlam, who resigned because they discovered they were dual nationals, and considering the eligibility of the Nationals’ Matt Canavan, whose mother signed him up as an Italian citizen.

The Senate is also awaiting the arrival of the replacement for former Western Australian Liberal senator Chris Back, who recently retired. As well, Special Minister of State Scott Ryan is on extended medical leave.

The ConversationBut arrangements between the parties are in place to ensure the various court cases and gaps do not affect the voting numbers.

Michelle Grattan, Professorial Fellow, University of Canberra

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