Party leaders need to address federal parliament’s intolerable workplace culture: Phelps


Michelle Grattan, University of Canberra

High-profile activist Kerryn Phelps, who is considering whether to join the battle in the Wentworth byelection, has condemned federal parliament’s toxic political culture and called on all major party leaders to address it.

As the fallout from Liberal MP Julia Banks’ condemnation of bullying continues, Phelps told The Conversation: “Some of the behaviour in the Australian parliament of late would not be tolerated in any other workplace”, saying it seemed to have gotten worse. This made for an unhealthy workplace which was ill-suited to getting the best performances from MPs.

Phelps, a City of Sydney councillor who was very active in the same-sex marriage debate, practices as a GP in the Wentworth electorate, and could be expected to attract a substantial vote if she ran as an independent.

The seat, formerly held by Malcolm Turnbull, who had a strong personal vote, is on a 17.7% margin but the Liberals are worried about a big protest vote.

The fallout from the leadership coup is already being felt there with Turnbull’s son Alex encouraging people to donate to the campaign of Labor candidate Tim Murray.

The younger Turnbull tweeted: “Best bang for the buck you’ll get in political donations in your life. Tight race, tight margin for government, big incremental effect whatever happens. If you want a federal election now this is the means by which to achieve it.”

While the focus in the bullying debate last week was on women, Phelps said some men suffered equally and “don’t perhaps get recognised in terms of the emotional cost [to them].”

She said the “toxic nature of parliament as a workplace” needed to be addressed, and she rejected the message sent by some Liberal players that people should toughen up or, in the words of backbencher Craig Kelly, “roll with the punches”.

If any business leader said “just toughen up”, they wouldn’t be there for long, Phelps said.

She said that a quantitative improvement in the political culture had to be generated by the leaders of the large parties. “You have to have the leaders of the major parties draw a line in the sand,” and say that bad behaviour would not advance people’s careers. At present, the opposite seemed to be the case, she said.

Earlier on Sunday, Labor frontbencher Clare O’Neil said “there’s a level of aggression, of conflict, of egocentrism that dominate parliament house and I think that that is quite hard to handle”, in particular for women.

O’Neil, spokeswoman on financial services, told the ABC her experience as an MP was “that there’s increasingly a culture in Canberra and in parliament house that feels really toxic”.

Attention is coming on the Minister for Women Kelly O’Dwyer, who issued a general statement last week condemning bullying, to take a stronger stand. O’Dwyer is expected to say more this week.

Some current and even former Liberal MPs women are reluctant to speak out for fear of blowback.

Labor has had its own controversy centred on one of its female MPs: Emma Husar has said she will not run again, after allegations of her bullying staff and other misbehaviour. A Labor inquiry upheld some allegations but not others.

Labor’s spokesperson on women, Tanya Plibersek, said that while the way parliament worked was adversarial, debates should be conducted with decency and respect.

“A positive culture is critical, and each one of us has the duty to help foster that both within parties and across the parliament.

“I believe the closer the parliament reflects our community – a more equal representation of women and men, and a greater diversity of backgrounds – the better that culture will be.

“I actually think something that really helps is more people working on issues in a bipartisan way, for example on committees,” Plibersek said.

Meanwhile, Christine Forster, Tony Abbott’s sister, has dropped out of the race for Liberal pre-selection for the Wentworth byelection.

She said in a statement the commentary about her candidacy “has focused on the suggestion that it was a proxy for division within the Liberal party. That is not the case, but to avoid any such perception, I will be standing aside and giving my full support to the successful candidate.”

Forster had not been regarded a frontrunner in the contest, which is considered to be between a former ambassador to Israel, Dave Sharma, and Andrew Bragg, who was briefly acting Liberal federal director.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

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

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


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Tony Abbott is now the prime minister’s Special Envoy for Indigenous Affairs, while Barnaby Joyce is Special Envoy for Drought Assistance and Recovery.
AAP/Mick Tsikas

Luke Beck, Monash University

Tony Abbott and Barnaby Joyce have each accepted job offers from new Prime Minister Scott Morrison to serve as his special envoys.

The prime minister’s offers may have been a clever way to keep these two former leaders busy and put their abilities to use. But these jobs may have inadvertently rendered both Abbott and Joyce disqualified from parliament under section 44 of the Constitution. That section disqualifies any MP who accepts a paid job in government that is not a ministerial position.

The special envoy jobs

Tony Abbott is now the prime minister’s Special Envoy for Indigenous Affairs, whereas Barnaby Joyce is Special Envoy for Drought Assistance and Recovery.

Special envoys are not ministerial positions. Neither Abbott nor Joyce is part of the Morrison ministry. Their roles are to work with the relevant ministers and the prime minister to advance policy in these respective areas. The precise details of what they will be doing are not yet clear.




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


Section 44 of the Constitution sets out several grounds on which a politician will be disqualified from membership of parliament. Being a dual citizen is only one of them.

Another ground for disqualification is set out in section 44(iv). That provision disqualifies anyone holding an “office of profit under the Crown”, unless the position is that of a minister.

The special envoy roles look suspiciously like offices of profit under the Crown.

What is an office under the Crown?

There is no doubt the special envoys hold offices under the Crown.

In Re Lambie (No 2) from March this year, the High Court decided that Jacquie Lambie’s successor, who was the Mayor of Devonport in Tasmania, was not disqualified under section 44(iv).

The High Court held that a position is under the Crown if hiring or firing decisions are made by the executive government. Mayors are voted in and out by the people, rather than hired and fired by governments.

The prime minister, who is the effective head of the executive government, appointed Abbott and Joyce to their special envoy roles. The prime minister can also sack Abbott and Joyce as special envoys if he wants.

Positions like Speaker of the House of Representatives, Leader of the Opposition, and Chairperson of a Parliamentary Committee are not “under the Crown”. They are parliamentary positions.

The key issue is whether the special envoy positions are “of profit”.

Is the position of special envoy “of profit”?

It has been reported that Abbott and Joyce were offered remuneration for their special envoy roles.

ABC Radio National Presenter Patricia Karvelas tweeted:

Access to staff does not make a position “of profit”. Nor does covering of work expenses. But a salary, however small, definitely makes a position “of profit”.

On the same day, having already accepted the special envoy job, Tony Abbott told 2GB radio host Ray Hadley that he would not be receiving any pay for his role as Special Envoy. Abbott said: “The other thing I want to say, Ray, is that I certainly don’t expect any extra pay”.

Hadley had not asked Abbott about payment. Abbott simply made the comment off his own bat.

This all suggests that Abbott may have been offered remuneration for the special envoy job, but decided to decline that offer.

The High Court has said that to fall foul of section 44(iv) it does not matter whether a person is actually paid. What matters is “the character of the office”.

In the 1992 case of Sykes v Cleary, the High Court held that Philip Cleary, who had won the federal seat of Wills, was disqualified under section 44(iv). Cleary was a teacher who was on leave without pay at the time of the election.

The High Court decided that it doesn’t matter whether a person is actually receiving payment. What matters is whether payment attaches to the position. Cleary held an office of profit under the Crown even though he was not receiving any payment.




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


Chief Justice Anthony Mason and Justices John Toohey and Michael McHugh said:

The taking of leave without pay by a person who holds an office of profit under the Crown does not alter the character of the office which he or she holds. The person remains the holder of an office, notwithstanding that he or she is not in receipt of pay during the period of leave.

Logically, the same reasoning applies to an office-holder who waives their right to payment or declines to take a salary. A person is not saved from disqualification because they are not currently receiving payment.

Abbott and Joyce will be disqualified if, and this is the crux of the issue, remuneration was originally part of the special envoy job offers.

It doesn’t matter if Abbott and Joyce never asked for payment. It doesn’t matter that they declined an offer of payment. And it doesn’t matter that they aren’t actually being paid now.

If a non-ministerial position answers the description of an “office of profit under the Crown” then the holder of that position is disqualified.

Could Abbott and Joyce really be disqualified?

A clear answer is needed to the question of whether Abbott and Joyce were offered payment as part of their special envoy roles. Morrison, Abbott or Joyce could each easily answer that question.

If payment was indeed offered as part of the roles, the only way the issue of disqualification could be decided authoritatively is for the House of Representatives, where the government has a slim majority, to refer Abbott and Joyce to the High Court.

It is unlikely the government will refer Abbott and Joyce to the High Court, and quite likely that the opposition will pursue the issue – and also Peter Dutton’s potential section 44 problem – when parliament resumes in September.

The section 44 saga continues.The Conversation

Luke Beck, Associate Professor of Constitutional Law, Monash University

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

Explainer: is Peter Dutton ineligible to sit in parliament?



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There is enough in the Dutton case to raise questions about whether disqualification has occurred.
AAP/Lukas Coch

Anne Twomey, University of Sydney

Section 44 of the Constitution has struck down many a politician in the past year – but is it powerful enough to take down the Minister for Home Affairs, Peter Dutton? This time it is not dual citizenship under s44(i) that is at issue. Instead, it is the more obscure s44(v) in the spotlight.

What is section 44(v) about?

Section 44(v) says that any person who “has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth” is disqualified from sitting as a member of parliament.

Dutton, as recorded in the parliamentary register of interests, is the beneficiary of a discretionary family trust. This trust, through its trustee, apparently owns two childcare centres in Queensland. The allegation is that since July 2, 2018, the trust, through its childcare centres, has agreements with the public service to provide childcare services in exchange for childcare subsidies.

Dutton may argue the childcare centres merely receive the subsidy on behalf of the parents and do not have an agreement with the public service. But if it is found there is such an agreement, it would appear Dutton has a beneficial interest in a trust that has an agreement with the public service, potentially triggering the application of s 44(v).

Last year, in a case concerning Family First senator Bob Day, a majority of the High Court held that the beneficiary of a trust which, via its trustee, is party to an agreement to which section 44(v) refers, has an indirect pecuniary interest in the agreement, and is therefore disqualified from sitting in parliament. If the facts set out above are correct, this would place Dutton into the realm of potential disqualification.

Exceptions for certain types of agreements

The key qualification is the reference to “an agreement to which section 44(v) refers”. Not every agreement with the public service will trigger the application of section 44(v). This is because otherwise ordinary agreements that everyone engages in, such as paying for a passport or a stamp, could cause disqualification from parliament.

In the Day case, Chief Justice Kiefel and Justices Bell and Edelman said there can be “no relevant interest if the agreement in question is one ordinarily made between government and a citizen”. But does an agreement between a childcare centre and the public service fall into that category? It is less ordinary than the purchase of a passport or a stamp.

Justices Gageler and Keane took the view that section 44(v) has no application to agreements entered into by the Commonwealth in the execution of a law of general application enacted by the parliament. As the provision of the childcare subsidy comes under a law of general application, which applies equally to all childcare centres, Dutton would not, on this basis, be disqualified from parliament. But two judges do not make a majority of the Court.




Read more:
Explainer: what is the challenge to Bob Day’s Senate seat all about?


Two other judges, Justices Nettle and Gordon, rejected the attempt to exclude agreements authorised by statutes of general application. In their view, the issue was whether the direct or indirect pecuniary interest in an agreement could conceivably influence a parliamentarian to prefer their private interests over their public duty.

A similar view was taken by the other three judges, Chief Justice Kiefel and Justices Bell and Edelman, who considered that one of the purposes of s44(v) was to ensure that parliamentarians do not seek to benefit from agreements with the public service or “put themselves in a position where their duty to the people they represent and their personal interests may conflict”.

In the case of Dutton, there is no suggestion of any attempt to use political influence or that the arrangements with the two childcare centres are any different from those applying elsewhere. It is therefore different from the Day case, where Day had asked the government to move his electorate office to a particular building, giving rise to an indirect pecuniary interest in the rent.

But it is still possible to argue that Dutton may benefit financially from these agreements with the public service. Is this enough to establish the kind of potential conflict of interest – where a person might prefer their private interests over their public duty – that concerned the High Court in the Day case?




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


This is a matter of judgment for the High Court. It would depend on how strictly it chose to apply the provision. But we do know from recent experience that the High Court has been particularly strict in applying section 44. So even though this case falls within the grey border-area of section 44, it is enough to raise a substantial concern that disqualification has occurred.

What are the consequences of disqualification?

Disqualification is not just an issue prior to election. It can arise at any time within a member’s term in parliament. Section 45 of the Constitution says that upon a senator or member of the House of Representatives becoming subject to a disqualifying disability in section 44, “his place shall thereupon become vacant”. This means that disqualification is automatic at the moment that a disqualifying agreement with the public service is made.

Let’s assume for a moment that an agreement that triggered the application of section 44(v) came into effect from July 2, 2018. That would mean Dutton’s seat was automatically vacated at that time (although to be sure this had happened, a Court judgment would be needed).

Section 64 of the Constitution also states that no minister shall hold office for longer than three months unless he or she becomes a senator or a member of the House of Representatives. That means Dutton could remain validly a minister for three months from July 2. After that, if he was still not a valid member of parliament, he would cease to be a minister.

This would have consequences for the validity of any decision he made as a minister from that point on. It also raises another difficult question in whether or not the “de facto officer” doctrine would apply to support the effectiveness of those decisions.

Given that as Minister for Home Affairs and Minister for Immigration and Border Protection, Dutton makes many decisions that affect the lives of many people, his possible disqualification from parliament opens up a Pandora’s Box of litigation possibilities.

How to fix the problem?

First, the matter could be referred by the House of Representatives to the High Court, as the Court of Disputed Returns, to determine, as occurred in relation to Barnaby Joyce. The benefit of doing so would be to clarify whether such interests give rise to disqualification. But the disadvantage is that it would take some time to get a judgment, leading to ongoing uncertainty.

Second, Dutton could terminate his indirect pecuniary interest in the agreement, resign his seat and be re-elected in a byelection. This would resolve the matter more quickly, but it is unlikely that the government would wish to hold such a by-election at this time.

Third, Dutton could terminate his indirect pecuniary interest, and an election could be called later this year. This would avoid or reduce any period in which he was performing the duties of a minister while possibly invalidly holding that office.

Fourth, Dutton could resign as a minister once the three months expires, so that there are no issues of validity concerning his ministerial decisions, but remain in parliament as long as the House decided not to refer him.




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


Finally, the government could ignore the problem and tough it out, by not acting until an election was held next year, but risk a tsunami of litigation challenging the minister’s decisions.

None of these options is likely to be particularly palatable to the government, but nothing about section 44 has given the government great joy. However, it is another salient reminder of the importance of taking care to obey the terms of the Constitution.

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The Conversation

All MPs with family trusts need to be as vigilant about the agreements entered into by the trustee on behalf of those trusts as they should be about their citizenship status.

Anne Twomey, Professor of Constitutional Law, University of Sydney

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

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



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

Lorraine Finlay

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

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




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


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

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

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

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

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

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

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

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

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

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

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

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

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

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




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


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

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

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

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

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

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

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

Lorraine Finlay, Lecturer in Law

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

View from The Hill: Parliament should care about its reputation even if Leyonhjelm doesn’t value his


Michelle Grattan, University of Canberra

If David Leyonhjelm hasn’t apologised to Sarah Hanson-Young by the time parliament resumes next month, the Senate should tell him to do so.

The recalcitrant Liberal Democrat senator might tell his upper house colleagues to go jump, but the Senate needs to take a stand for the sake of its own reputation.

The outraged Greens have already flagged they’ll move a censure over Leyonhjelm’s smearing of their senator.

This matter goes beyond the actual stoush between the two. It raises the issue of when parliament should call out unacceptable behaviour by its members. It has also triggered questions about the media’s role.

Let’s go back to the start. Last Thursday Hanson-Young told the Senate that during a motion relating to violence against women, “senator Leyonhjelm yelled an offensive and sexist slur at me from across the chamber.

“After the vote on the motion was complete, I walked over to the senator and confronted him directly. I asked whether I had heard him correctly. He confirmed that he had yelled, ‘You should stop shagging men, Sarah.’

“Shocked, I told him that he was a creep. His reply was to tell me to ‘f… off’,” she said.

Earlier, Greens leader Richard Di Natale had approached Senate president Scott Ryan about the incident. Ryan spoke to Leyonhjelm. Leyonhjelm wouldn’t apologise.

Subsequently, Leyonhjelm gave his version in a media statement, saying during the debate Hanson-Young had interjected “something along the lines of all men being rapists. [She says her interjection was ‘putting more tasers on the streets would not make women more safe from men’].

“I responded by suggesting that if this were the case she should stop shagging men.”

Adding more provocation, Leyonhjelm said in his statement that while not prepared to apologise “I am prepared to rephrase my comments. I strongly urge senator Hanson-Young to continue shagging men as she pleases.”

The incident has blown up especially because of what followed at the weekend. Leyonhjelm was interviewed on Sky and on 3AW on Sunday morning. On each program he cast a particular slur on Hanson-Young’s reputation.

On 3AW he was challenged by the presenters. On Sky’s Outsiders it was a different story. He fitted the vibe of a program, that stretches to breaking point the limits of the permissible. A strap line was put up of his words, “SARAH HANSON-YOUNG IS KNOWN FOR LIKING MEN THE RUMOURS ABOUT HER IN PARLIAMENT ARE WELL KNOWN”.

Then, all hell broke loose.

Within hours Sky apologised to Hanson-Young for “broadcasting appalling comments … and for highlighting them in an on-screen strap”. It said a producer had been suspended, ahead of an internal investigation.

Multiple Sky presenters distanced themselves in tweets. Hanson-Young announced on Monday that she was seeking legal advice. Letters have been sent to Sky, 3AW and Leyonhjelm. She could only sue in relation to what happened outside parliament.

Ryan – who did his best on the day – has explained that he doesn’t have power to force an apology.

He said on twitter on Friday: “As the comments were not part of the formal proceedings of the Senate, they are not recorded in Hansard and therefore I have no authority to require a withdrawal, nor do I have the power to demand an apology from any senator or apply a sanction such as suspension.”

Leyonhjelm, who is railing against misandry (hatred of men) told Fairfax Media it would be easier to apologise but that would be “insincere… because I don’t think I have anything to apologise for”.

If Leyonhjelm really believes that, he is totally out of touch with reasonable standards of behaviour, let alone how ordinary people think their representatives should conduct themselves, whatever their disagreements.

His conduct is at the extreme end of the discourteous, sometimes boorish, discourse that too often is characterising political exchanges. And politicians then wonder why so many people are angry at them.

As for Sky, its response has been less than convincing – some might say it is hiding behind a petticoat.

Di Natale opined that Sky’s “apology rings hollow when the man who made the offensive comments goes unpunished, the male producers who booked him go unpunished, the male executives who set the tone and pay their salaries go unpunished and the only one held accountable is a junior producer who also happens to be a female member of staff.”

Suspending a producer, over the strap line, is tokenism. The fact the strap line “highlighted” what was said is hardly the point. Leyonhjelm himself said on Monday “the producer was not responsible for my comments” and pointed to Sky fears about losing sponsorship.

Forget the producer – wasn’t it for the the hosts, Rowan Dean and Ross Cameron, to challenge, or stop, Leyonhjelm? Yet Cameron wound up the segment with the words, “senator David Leyonhjelm, we appreciate your advocacy of the individual to be defended against the sludge of the collective”. (Later in the program – presumably after someone twigged – Dean started the damage control, saying Leyonhjelm’s views “are not the views of Sky News”.)

There was not a word about the presenters in the Sky apology – which was not issued in anyone’s name.

As for an internal investigation, is that needed? Aren’t things pretty obvious? Leyonhjelm was invited on to be controversial. He did exactly what was wanted but when it didn’t work out too well, Sky failed to confront the real issue for the network – a low rent program.

The ConversationCameron and Dean on Monday night admitted that a line had been crossed and they disassociated “ourselves from the use of unverified rumour and innuendo”. Pity they didn’t see the line when Leyonhjelm crossed it in their plain sight.

Michelle Grattan, Professorial Fellow, University of Canberra

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

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


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The dual citizenship saga that has rocked the parliament in recent months is unlikely to end any time soon.
Shutterstock

Lorraine Finlay, Murdoch University

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

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

Is a referendum the answer?

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




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

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

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

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

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

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

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

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

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

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

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

The minority report

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




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

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

Other reform options?

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

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

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

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

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

Lorraine Finlay, Lecturer in Law, Murdoch University

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

Early byelection test for Shorten after David Feeney quits parliament


Michelle Grattan, University of Canberra

Labor MP David Feeney has pre-empted a High Court decision on his citizenship, quitting parliament and triggering a byelection in the Victorian seat of Batman.

Labor fears it will lose the seat to the Greens in a contest that will be a major distraction for Opposition Leader Bill Shorten in the early part of the year. In 2016, Feeney held Batman against the Greens only 51-49% in two-candidate terms after a big swing against him.

Feeney, whose position was referred to the High Court late last year, confirmed on Thursday that he still could not produce the paperwork to demonstrate he had renounced British citizenship, which he claimed to have done in 2007, ahead of entering the Senate. He won his house seat in 2013.

“I have taken legal advice indicating that the material that has been located to date is insufficient to satisfy the High Court that I did, indeed, renounce my rights ten years ago. I am unable to disprove that I am a dual citizen,” he said in a statement to a news conference in Melbourne, at which he did not take questions.

The court’s deadline for Feeney to produce documents was 4pm Thursday – just an hour after he announced his resignation.

Feeney is not recontesting the seat. “The Labor Party I love deserve a candidate that is able to give the months and the years ahead 150% of their effort, their commitment and their passion. … I don’t believe I’m able to offer this. That tells me that it’s time for me to stand aside for a Labor candidate that can and will,” he said.

Labor sources have said for weeks that he would not be the candidate in a by-election, believing he would further reduce the chance of holding the seat.

It is speculated that ACTU president Ged Kearney will be Labor’s candidate in the byelection. She had no comment on Thursday. Kearney is already preselected for the seat of Brunswick for the Victorian election later this year.

Kearney is left-aligned, and under Victorian factional arrangements Batman goes to the right. But to maximise its chances in the seat, the party needs to put up someone who will appeal to voters inclined to go to the Greens.

The Greens candidate in the byelection, which is likely to be held in March, is Alex Bhathal, a social worker, who has contested the seat several times before.

Greens leader Richard Di Natale told a news conference: “It stinks that [Feeney] has decided to resign right now. What has changed between the parliamentary year last year and his decision to resign at this time?

“Here we have David Feeney, who has known all along he hasn’t got the paperwork to demonstrate he did the right thing to make sure he’s not a dual citizen, sit on that, receive a salary. And now at a minute to midnight as he’s about to have to argue his case in court, he resigns.”

Di Natale said issues in the byelection would include the proposed Adani coal mine in Queensland, refugees, electoral and donation reform, and climate change.

He predicted a Labor shift on the Adani mine. “Expect to see a backflip coming soon because they know the electors of Batman don’t want to see that mine being built.” This week Shorten was cool on Adani when questioned at the National Press Club.

The Liberals are not planning to run in the seat.

Shorten said in a statement that Feeney’s “decision is the right one and spares the valuable time and resources of the High Court”.

“Labor will put forward a strong candidate at the upcoming Batman byelection, who’ll stand up for the things that matter to Australians: protecting penalty rates and local jobs, protecting Medicare and schools, keeping taxes lower for ordinary people, and building a strong economy that delivers for all,” Shorten said.

*Update: *
Late on Thursday afternoon, Shorten was having talks with Kearney in his office.

The Conversation

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Michelle Grattan, Professorial Fellow, University of Canberra

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

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



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

Lorraine Finlay, Murdoch University

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

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


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


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

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

All reasonable steps?

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

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

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

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

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

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

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

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

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


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


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

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

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


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


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

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

Previous ineligibility

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

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

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

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

Lorraine Finlay, Lecturer in Law, Murdoch University

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

Should Colin Barnett leave the WA parliament? Definitely, maybe, not at all


Narelle Miragliotta, Monash University

Party leaders are critical to their party’s performance, and arguably have become even more so in an age in which voter loyalties have frayed and partisanship is on the wane.

It is for these reasons that a government’s electoral defeat is often the catalyst for vanquished premiers and prime ministers to stand aside from the leadership of their party and to quit the parliament.

This is not a legal or constitutional requirement, nor is it necessarily an expectation held by voters. Rather, it is more akin to an informal rule that is invoked following a government’s defeat so as to clear the path for the incoming leadership team.

The reasons why such a practice exist was recently brought into sharp focus when the former Western Australian premier, Colin Barnett, found himself at the centre of calls from the Liberals’ new leader, Mike Nahan, and some media commentators, to quit the parliament. Barnett rejected these suggestions.


Read more: Labor wins WA in a landslide as One Nation fails to land a blow


The question of whether a former premier has an obligation to resign depends in part on what one thinks the role of a political representative is, and to whom they owe their allegiance. For those who have sympathy for the partisan model of representation, former leaders should generally quit the parliament if this is what their party asks of them.

However, for those who subscribe to the view that elected representatives have obligations to the wider community (trustee model) or to the constituency that directly elected them (delegate model), then there is a much stronger case to be made for them serving out their full term, regardless of their former status within parliament.

The partisan model

The partisan model of representation would suggest that Barnett should quit the parliament, if this is desired by his party, in order to bring renewal within their ranks or help refocus the team following defeat.

This model positions the elected member as agents of the party, who owe a duty to their party because of the support they received and the opportunities that their party provided for them. Elected members are expected to place the party interest ahead of personal interests.

On these grounds, the Liberals have a strong case against Barnett remaining in parliament.

Barnett has not gone quietly into the night. Rather, he has caused the new leadership team embarrassment by arguing that his premiership was hamstrung by an under-performing second-term cabinet, some of whom remain in parliament.

Moreover, with the Liberals reduced to 13 members in a 59-seat chamber, and Barnett holding a safe seat, his exit would allow the party to refresh their ranks at a time when they are trying to rebuild.

Barnett the trustee?

If we treat Barnett as a trustee, then the logic favours that he should stay in parliament until such time as his conscience moves him to quit.

Under the trustee model, elected members are expected to be guided by their concern for the broader interests of the state. Once elected, the decision about how that member should serve these interests falls to the discretion of the member.

On this basis, Barnett can reasonably argue that he is an experienced legislator who still has much to contribute to the parliament and to the state.

Moreover, the high financial costs and general disruption associated with holding a byelection without proper cause is not advantageous to the people of the Western Australia.

An elected delegate

The delegate model requires the elected member to act according to the wishes of those who elected them. Unlike the trustee model, such assessments are not for the MP to make, but only after careful consideration of the views of the electorate.

Based on this model, only the voters in Barnett’s seat of Cottesloe are fit to make any such decision about his future and, arguably, they have already done so when they re-elected him in 2017.


Read more: It’s unrealistic to expect MPs to follow the view of the people who elected them every time


Barnett’s claims in this regard are strengthened because he was elected on first preference votes (56.67%), and because he made clear his intention to remain in parliament regardless of the outcome of the election. This would suggest that Barnett’s electorate supported his reelection full in the knowledge of his future intentions.

Thus, in the absence of any actions that would render Barnett unfit or unable to serve under the WA Constitution, the logic of the delegate model supports his remaining in parliament.

The ultimate decision-maker

In the end, the decision about Barnett’s future in parliament is for him to make.

Neither the people of Cottesloe nor his own party can force him to resign. The Liberals can expel him from the party, but this does not solve the problem because what Barnett has said cannot be unsaid, and he may prove more of a distraction if freed from his partisan bonds.

The ConversationYet what this incident, and others similar to it underline, is that any such disagreement over whether former leaders should remain in parliament often boils down to different views about to whom they are ultimately beholden.

Narelle Miragliotta, Senior Lecturer in Australian Politics, Monash University

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

Dastyari demoted again – but government demands he leave parliament


Michelle Grattan, University of Canberra

Bill Shorten has forced Labor senator Sam Dastyari to quit as opposition deputy whip in the Senate – but the government is demanding he quits parliament over his dealings with a Chinese national of interest to Australian security agencies.

Prime Minister Malcolm Turnbull accused Dastyari of a “failure of loyalty” to Australia and said he “should get out of the Senate, full stop”.

“Dastyari has shown he does not put Australia first and he does not owe his first loyalty to Australia,” Turnbull said.

Shorten’s move against Dastyari followed the media on Wednesday revealing audio of his 2016 remarks to a local Chinese media news conference supporting China’s position in relation to the South China Sea and contradicting Labor policy.

The audio made it clear his comments were deliberate; previously he had downplayed them when a fragment was reported.

On Wednesday, it was revealed Dastyari had told business figure and political donor Huang Xiangmo that his phone was likely tapped, and they should go outside Huang’s house to have their conversation.

Dastyari has said he went to the house of Huang – who had been at his side at the news conference – to say they should not have further contact, after the controversy over money Huang provided Dastyari and the policy comments. The controversy had cost Dastyari his frontbench position.

In a statement to the Senate on Thursday morning Dastyari, who also loses his position as chairman of a Senate committee, said he had been called by Shorten on Wednesday night and “asked to resign from my position in the Labor Senate organisational leadership”.

He insisted that he had “never had a briefing by any Australian security agency ever. I’ve never passed on classified information and I’ve never been in the possession of any. As I’ve repeatedly said, if I was ever given any security advice from any agency, I would follow it to the letter.”

Dastyari said he found “the inferences that I’m anything but a patriotic Australian deeply hurtful”.

Shorten shows no sign of seeking to have Dastyari leave parliament. He could not force him to do so – all Labor could do would be to expel him from the party.

Shorten said he had not taken the decision to demote Dastyari lightly. “I told senator Dastyari that his mischaracterisation of how he came to make comments contradicting Labor policy made his position untenable.

“I also told him that while I accept his word that he never had, nor disclosed, any classified information, his handling of these matters showed a lack of judgement.

“I know that senator Dastyari will learn from this experience.”

The government is homing in particularly on Dastyari’s advice to Huang about his phone being likely tapped, and how to avoid surveillance of their conversation.

Turnbull also contrasted his behaviour with the situation of those who have had to resign because of their dual citizenship.

Senators had resigned who had no allegiance to any country other than Australia but because of a foreign law of which they weren’t aware, he said. “This is a senator who has made it abundantly clear that his first allegiance is not to Australia.”

He had taken money to pay his personal debts “from a foreign national who is very, very close indeed to a foreign government.

“Now we learn – and he has not denied it – that he has been providing counter-surveillance advice to that foreign national in order, presumably, so that what he assumed were the operations of Australia’s security agencies could be frustrated.

“Sam Dastyari has shown that he is not on Australia’s side and it’s time he got out of Australia’s parliament,” Turnbull said.

Attorney-General George Brandis told the Senate: “It is not good enough for Mr Shorten to think that he can overcome this latest embarrassment merely by, once again, temporarily benching senator Sam Dastyari.

“It is not good enough because senator Dastyari has not only compromised himself – he has compromised his office and he can no longer remain.”

The ConversationShadow Foreign Minister Penny Wong said Dastyari had done the wrong thing, but questioned how information from national security agencies had become public. She said she hoped Brandis would be “as persistent and determined to find out how that has occurred as he has to point the finger at senator Dastyari”.

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Michelle Grattan, Professorial Fellow, University of Canberra

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