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Issue #1791      August 23, 2017

Citizen Turnbull on thin ice

The Turnbull government is skating on very thin ice indeed. This week the High Court of Australia will begin hearing the cases of several parliamentarians, including three members of the government, who may be guilty of having violated Section 44 of the Australian constitution, which prohibits certain persons from taking parliamentary office, in particular Subsection (i), which bans them from being MPs if they hold dual citizenship.

The government is faced with the strong possibility that it will lose power because of the Constitution’s dual nationality anachronism.

The current cases were sparked on July 14 when former Greens Senator Scott Ludlum announced he had discovered he had New Zealand as well as Australian citizenship. Four days later Greens Senator Larissa Waters disclosed she had Canadian citizenship. Both senators resigned immediately from the Senate and apologised publicly for their oversight.

A recent opinion poll found that only 16 percent of respondents considered most MP’s to be honest and ethical. The two Greens Senators acted with impeccable ethics, but Prime Minister Turnbull sneered at their “carelessness” and Deputy leader Barnaby Joyce declared triumphantly that resignation was the only option because in the Constitution “It’s black and white.”

A week later federal resources Minister Matt Canavan discovered he had Italian citizenship. He resigned from cabinet, but not from parliament as the Greens had done. The legal issues had suddenly become not nearly so black and white as Joyce had claimed.

On August 9, One Nation Senator Malcolm Roberts denied he has ever been a British citizen, even though documents indicated he had. Five days later Barnaby Joyce himself admitted that he had New Zealand citizenship because his father had been born there.

This was a potential catastrophe for the government. If Canavan had resigned from parliament he could at least have been replaced as a Senator by another coalition nominee. But if the High Court finds that Joyce is not entitled to be a member of the Lower House, the government would be immediately stripped of its one-seat majority in that chamber and a by-election would be required for Joyce’s vacant seat.

If the government lost the by-election, it would be forced to hold a general election, which it would almost certainly lose. The government is now insisting that Joyce doesn’t have to resign from the cabinet because it has received an optimistic prediction from the Solicitor-General about the High Court’s decision.

The government had absolutely supported the legitimacy of the decision by Ludlum and Waters to resign, but last week Attorney-General George Brandis contradicted this, sneering that they appear to have made “a serious error of judgment.”

On August 17, Fiona Nash, National Party deputy leader, admitted she had British citizenship because her father was Scottish.

By this time the government was panicking. Foreign Affairs Minister Julie Bishop declared in near hysteria that the Labor Party had betrayed the nation by conspiring with its New Zealand counterpart to determine whether Joyce enjoyed dual citizenship, with a view to bringing down the Turnbull government.

This was incorrect in point of fact, but also irrelevant because Joyce’s nationality is a matter of public interest and because it’s the opposition’s job to bring down the government.

Senator Nick Xenophon was the next Constitutional victim. His father was born in Cyprus in 1957 prior to its achieving independence from Britain. Because he then moved to Australia he and his family were granted British “overseas citizenship”.

Ironically, Xenophon’s father left Cyprus because he opposed British colonial rule. And “overseas citizenship” is a really dubious honour. Under Australian law it denies Xenophon the right to act as an MP, but under British law it denies him the right to live in Britain!

The government may refer the nationality of four Labor MPs to the High Court. However, the Labor Party claims it meticulously checks the nationality of all its election candidates and that nine coalition MPs have dual citizenship.

A dangerous anachronism

Subsection (i) assumes that the loyalty of Australian citizens with dual nationalities is inherently suspect. It’s a xenophobic anachronism because all Australian parliamentarians have to take an oath of loyalty before assuming office. New Zealand and Canada manage very well with no constitutional equivalent to Subsection (i).

As columnist Mungo MacCallum observed, the authors of the Constitution were primarily concerned with “loyalty to the mother country and keeping potential intruders – French, Russians, Americans, and of course all the lesser breeds – as far from harm’s way as possible”.

However, the xenophobia reflected in the Constitution also arose from the fact that when it was written Australia comprised a huge, sparsely-inhabited resource-rich but largely indefensible land mass on the edge of Asia, which Britain had taken by force from its original inhabitants.

Indeed, the Constitution denied Aboriginal people the rights of citizenship (until the 1967 referendum), including the right to vote, and the earliest legislation of the newly-installed Australian federal government enshrined the white Australia policy.

In 1901, 97 percent of Australians were born within the British empire, but now approximately 50 percent were born outside Australia or have one foreign-born parent. According to one estimate, approximately 4 million Australians have dual citizenship and would be ineligible to act as a federal MP unless they renounced their other nationality.

The Court may deal leniently with MPs who can provide evidence they took reasonable steps to revoke their other citizenship. However, ignorance is no excuse for breaking the law, and as Ramesh Takur, ANU professor in public policy has pointed out, if the law is fully applied, breaches of Subsection (i) could result in financial penalties, including repayment of salaries and the imposition of fines.

The Court may apply penalties in the current seven cases. Moreover, under current law, any citizen may seek enforcement of a penalty against someone who is in parliament in breach of the Constitution.

But Subsection (i) is not the only Constitutional anachronism. The biggest of all is the fact that as a remnant of Britain’s imperial past the Queen can claim citizenship of 16 countries of which she is now head of state, while Australians who hold British nationality cannot act as a member of their own parliament!

What is to be done?

Some MPs have called for parliament to be prorogued while a total audit of the nationality of MPs is carried out. But that could take months.

The High Court may interpret the Constitution so as to eliminate the problem, but that’s unlikely because some MPs have already been barred from taking office because of Subsection (i).

The Constitution should be amended so that parliamentary membership is not prohibited for those holding dual citizenship. In 2003 former Greens leader Bob Brown almost got the required absolute majority support for a referendum bill to change Section 44, but was defeated by the absence of some Labor members and the opposition of conservative members including National Party senator Bill O’Chee.

Ultra-conservative forces would probably oppose a new attempt to alter the Constitution regarding Subsection (i). In the past Turnbull himself might have supported a referendum on the issue, but on recent form he’s most unlikely to do so now, because he depends heavily on the very unreliable support of the Tony Abbott clique and other parliamentary ultra-conservatives.

Former Prime Minister Bob Hawke has pointed out that the whole Constitution needs a thorough review, but the present government would never assume that responsibility.

The government has used nationality as a political weapon, having threatened to strip Australian citizenship from any citizen with dual nationality who participates in military conflict or terrorism. It also maintains that Australian-born children of asylum seekers now detained offshore will not have Australian citizenship.

As Eureka Street editor Fatima Measham commented recently: “... the notion that citizenship is conditional for a specific subset of the citizenry surely undermines citizenship itself.”

But now the government is faced with the strong possibility that it will lose power because of the Constitution’s dual nationality anachronism, which it has refused to tackle.

The validity of legislation that the Turnbull government has passed with its tiny majority might also be called into question, if the court finds that the presence of members of the government or its crossbench supporters was invalid because of Subsection (i).

The government has lost the support of its last loyal crossbencher, Cathy McGowan regarding confidence and supply, and she has joined Labor and others in demanding the resignation from cabinet of ministers Joyce and Nash.

And the government may face a parliamentary privileges inquiry into former Minister Bruce Billson, who it appears was involved with the Franchising Council while still a Member of Parliament. Backbench Senator Barry O’Sullivan and assistant Health Minister David Gillespie are dealing with similar charges under Subsection (iv), which prohibits anyone who is benefiting by payments from the public purse from taking a parliamentary position.

This has stalled initiatives to deal with climate change, sought to bring tax relief to the nation’s richest citizens, left asylum seekers imprisoned offshore with no hope of release, attempted to slowly cripple Medicare and has supported reductions in pay for the nation’s poorest workers.

The constitutional crisis may bring about the government’s downfall and many would say the sooner the better.

Next article – Book Review – Squatting in Britain 1945-1955

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