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A Plague on Parliament: Australia’s Citizenship Crisis

“You know, when you nominate for Parliament, there is actually a question, you’ve got to address that section 44 question.” (Australian Deputy Prime Minister, Barnaby Joyce).

It is proving to be a toxic gift that continues to give with increasing regularity. The latest potential victim of section 44 of the Australian Constitution, one barring a member of parliament from having an allegiance, obedience or adherence to a foreign country, is the Australian Deputy Prime Minister, Barnaby Joyce.

On Monday, the same politician who made world headlines threatening to place the undeclared dogs of Johnny Depp and Amber Heard on death row after entering Australia, had his own moment of unrelished revelation: he was a New Zealand citizen.

This inconvenient fact came to Joyce’s attention on Thursday via advice received from the NZ High Commissioner, Chris Seed. The punch in the advice was even greater, given the Deputy PM’s string of previous announcements that he could not possibly have a citizenship connection with the country where his father was born.

While previous politicians leapt over the ridge on discovering their ineligibility (the Greens Senators Scott Ludlam and Larissa Waters being the debutants in this bloodletting), others have been attempting to clog the High Court of Australia. Perhaps the two Senators had been too hasty.

One government Senator and now resigned cabinet member, Matt Canavan, smells a whiff of potential legal victory before the bench of the High Court, using the “blame my mother” defence in acquiring, unwittingly, Italian citizenship, or what is deemed Italian residency abroad.

But Joyce’s case provides far less room to manoeuvre, one that looks more like the cases of Ludlam and Waters. Both of those cases involved a misreading, or misperception, about the respective laws of New Zealand and Canada on nationals.

No matter, claims the government Solicitor-General, Stephen Donaghue, deciding that sun filled hope mattered over worn legal experience. Joyce could remain not only as Deputy PM but as the Member for New England while the High Court considers the case. There would be no glorious immolation, no sacrifice to the sacred text of constitutional law. Furthermore, there would be no risk, at least for the moment, that this minority government might be extinguished by a textual nicety, given the government’s one seat majority.

Desperate to repel this political doomsday scenario, Prime Minister Malcolm Turnbull has been edging close to a dangerous declaration in parliament: that the High Court will find in favour of the government and hold that Joyce can remain.

This is very much high in the wishful stakes. What the government is banking upon, along with One Nation Senator Malcolm Roberts, is a modern interpretation of section 44, one that moves away from the fact that mere entitlement to a foreign power’s good graces would disqualify.

As for the Solicitor-General’s advice, Joyce satisfies all four contrived tests, though this banks on an updated reading of the section that clips its very broad wings. The Deputy PM was not, for instance, born overseas. Nor was he on a list of citizens of another state. He never applied for the citizenship of another country nor swore, at any point, any oath or allegiance to the other country.

Sensible points, in of themselves, but the law is not alien to absurdity. If, suggests Sydney University Law School’s Anne Twomey, a distinction can be drawn between citizenship by descent and other forms, Joyce may well survive. “Or [the High Court] could say the purpose of the provision is to prevent dual allegiance – and if you didn’t know [you were a foreign citizen] you were not breaching the purpose.”

The opposition attorney-general, Mark Dreyfus, suggested that Turnbull might have been skirting against the separation of powers, coming “perilously close to directing the High Court.” Not so, shot back Senator George Brandis. Turnbull, he explained on Radio National, knows a thing or two about the High Court, having presented cases before them.

Ambushed yet again, the government’s latest tactic smacks of a retro approach, those bad old days when major parties would purposely use the disqualifying provisions of section 44 to eliminate an independent politician or a member of a minor party. Show us, ventures the coalition, the paperwork of Justine Keay, Susan Lamb, Brendan O’Connor, Maria Vamvakinou and Tony Zappia.

All those Labor MPs are said to have renounced their foreign allegiances, though the party has, as yet, to move on producing any relevant paperwork. Labor’s own response is a line so standard as to be worrying. In refusing an offer from Turnbull that their own dubious cases be bundled up in the same government package for the High Court, Bill Shorten climbed the mountain of confidence.

“The Labor Party,” penned Shorten in his note of refusal to the PM, “has the strictest procedures in place to ensure all candidates are compliant with the Constitution prior to their nomination for election. Therefore, I politely decline your offer.” More fun, it seems, for the constitutional diggers.

Time and again since this constitutional crisis unfolded, the concept of strict procedures has itself been challenged. The application of due diligence, these episodes show, is an entirely relative matter, one often giving way to pure hope. But ignorance, in these cases, is proving far from blissful. Politically, it is even proving fatal.

Dr Binoy Kampmark is a senior lecturer in the School of Global, Urban and Social Studies, RMIT University. He was a Commonwealth Scholar at Selwyn College, University of Cambridge. He is a contributing editor to CounterPunch and can be followed on Twitter at @bkampmark.

 

14 comments

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  1. passum2013

    Looks like I hate Barnaby Month Is Moving Fast on Gina Hancock’s Boy Barnaby Baaar Baar

  2. Matters Not

    the concept of strict procedures has itself been challenged

    Yes – the hilarity of Conservatives arguing against a strict construction of the Constitution. Surely their opposition to judicial activism can’t be discarded at the first serious political hurdle? Even though those appointed to the High Court know that’s why they are there. Black Letter Law please!

    Genuine conservatives are rolling in their graves. (And perhaps making room for some more colleagues.)

    You couldn’t make this up.

  3. bobrafto

    Psychic me says I know the outcome.

    The fix is in. The judges have been bought.

  4. longwhitekid

    This has happened long ago more than once, and there are no excuses for neglecting to check everything is in order. I think I know the outcome too. Eric Abetz was found to have been a dual citizen over 14 years in and just said ‘nothing to see here’ and still has a career. That’s one person I wish would piss off back to the circle of hell he came from.

  5. Kyran

    What’s all the fuss about? The last time we had a Constitutional crisis, 1975, a foreign power sorted it out for us. Admittedly, it was the matriarch of the Constitution, dear old mother England. It seems only fair we let our cousins across the ditch sort this one out for us.
    It’s not like we have serious things to consider, is it?
    Another day, another fizza. Onya, talcum.
    Thank you Dr Kampmark. May the farce be with you. Take care

  6. king1394

    If the Liberals had not been so keen to see the back of the two Greens Senators, if they had said, ‘Oh hang on, that’s ridiculous, of course you don’t need to resign, there must be a way around this old provision that does not align with modern Australia…’ But they did not. They chose to insist that the letter of the constitution was clear. If Barnaby can continue in his position as a member of the House of Representatives, why cannot ex-Senators Larissa Waters and Scott Ludlum return to their seats?

  7. Kaye Lee

    Has Julie Bishop gone mad????

    “The New Zealand Labour leader, Jacinda Ardern has revealed that Bill Shorten sought to use the New Zealand parliament to undermine the Australian government,” Bishop claimed.

    “Bill Shorten has sought to use a foreign political party to raise serious allegations in a foreign parliament designed to undermine confidence in the Australian government.

    “This is highly unethical, at least, but more importantly, puts at risk the relationship between the Australian government and the New Zealand government,” she said.

    That is NOT the sort of reaction you want from a Foreign Minister.

  8. helvityni

    She scared me, what will the other countries think, she is after all our Foreign Minister, her behaviour is hardly fitting someone representing Australia overseas….

  9. Matters Not

    Julie is in Trump mode. (It’s the new black. And she is heavily into fashion. Photo shots and all.)

    https://www.google.com.au/search?q=photo+shots+of+julie+bishop&tbm=isch&imgil=4qVhpRH3WwvI_M%253A%253B_6eg3khpdRdjBM%253Bhttp%25253A%25252F%25252Fwww.couriermail.com.au%25252Flifestyle%25252Ffashion%25252Fforeign-minister-julie-bishop-wears-giorgio-armani-in-luxurious-shoot%25252Fnews-story%25252Fabdb8497362ea35693be0fe880e3727a&source=iu&pf=m&fir=4qVhpRH3WwvI_M%253A%252C_6eg3khpdRdjBM%252C_&usg=__OK3m5cWDkGWrybsXygRiX5qcXkg%3D&biw=1097&bih=484&ved=0ahUKEwjY4-uWzdrVAhVElJQKHe2aCJ8QyjcIMQ&ei=6p-TWdjGCsSo0gTttaL4CQ#imgrc=4qVhpRH3WwvI_M:&spf=1502846961039

  10. Kaye Lee

    “I don’t think it’s necessary to get dressed up in designer clothing and borrow clothing and make-up to grace the cover of magazines,” Ms Bishop told The Sunday Times.

    “You’re not a celebrity, you’re an elected representative, you’re a member of parliament. You’re not Hollywood and I think that when people overstep that line they miss the whole point of that public role.”

    Ms Bishop said posing for magazine covers was “not my style”.

    That was Bishop lambasting Gillard for doing a magazine shoot….totally opposed, until they asked her of course.

    Harpy’s bizarre

  11. Kronomex

    The LNP is just continuing a tradition of vicious, spiteful, grudge holding, revenge, and plain nastiness against anyone who dares to question them and their right to rule. The current crop are, so far, the worst I’ve seen yet. Oh yes, I forgot to mention corrupt to the hilt.

  12. Möbius Ecko

    Bishop the younger often over the top lambasts others for things she does herself, as Matters Not and Kaye Lee pointed out with her attack on Gillard over a magazine shoot, after which Bishop went on to swan around in high fashion, engaged in magazine shoots and spent more time overseas being seen in the right places with the right people than being a Foreign Minister.

  13. Florence nee Fedup

    It isn’t unreasonable to expect our MPs to have understanding of the Constitution and how our citzenship works. It is the rule that they work under as a politician.

  14. helvityni

    RICHARD BUTLER. Has Bishop’s time come?( on Menadue’s Pearls and Irritations)

    I don’t think it will ever come, but according to the Butler story, Peter Hartcher believes so… Oh dear, I don’t think that there’s anyone suitable for the top job amongst the Coalition…..

    .I would give Julie the editor’s position on Oz Vogue….

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