ANALYSIS: Citizenship woes are far from over

6 September 2017

ANALYSIS: Citizenship woes are far from over

The recent spate of referrals to the High Court about dual citizenship has put quite a few political careers on the line, and has made for some pretty interesting news in the meantime. But can we expect things to get resolved anytime soon? Not likely — at least not before the High Court starts considering cases in October. Either way, the path forward on the citizenship issue is rocky, and is a bit different for each House of Parliament.

What will happen in the Senate?

In the event of concern over a politician’s eligibility to serve, the House or the Senate (as applicable) may refer the politician in question to the High Court, sitting as the Court of Disputed Returns for a decision on their eligibility. This has occurred with former Senators Ludlam and Waters, Senators Canavan and Roberts, and Deputy Prime Minister Joyce. (Senator Fiona Nash has not been referred to the High Court, as she announced her dual citizenship three minutes before the Senate adjourned for the fortnight. Nick Xenophon and Derren Hinch referred himself to the High Court after Parliament had adjourned.)

In the case of a Senator, the High Court decides on the facts of each case if the Senator is eligible to be elected. If the Senator ineligible, they must resign from the Senate, and their vacancy will be filled by recount of ballot papers without the ineligible candidate. If the Senator is eligible, they may resume their service in the chamber. However, if they have already resigned from the Senate (as have Mr Ludlam and Mrs Waters), their seat becomes a casual vacancy, a replacement for which is chosen from the same Party of the previous Senator by the Houses of Parliament in the former Senator’s home state.

So, what if they all get the boot?

In the event that former Senators Ludlam and Waters are disqualified from the Senate, they will be replaced by the next Greens candidates on the Group Voting Ticket (being Jordan Steele-John and Andrew Bartlett respectively) — although if they’re found to be eligible, they may well be nominated by their home state parliaments to fill the casual vacancy they will have left behind. As for the other Senators in question, One Nation candidate Fraser Anning would replace Malcolm Roberts, despite ongoing concerns about his bankruptcy proceedings; Fiona Nash would be replaced by Hollie Hughes, previously at the centre of a preselection fight with Liberal Senator Concetta Fierravanti-Wells; former Senator Joanna Lindgren would replace Matt Canavan; Tim Storer of Storer Asia would replace Nick Xenophon; and Stuart Grimley would replace Derren Hinch. All of the replacements will be members of the original Senator’s party.

Therefore, the makeup of Senate will not be affected. Previous votes taken by Senators ruled to be ineligible will not be voided. So, nothing interesting will happen there.

Not so for the Lower House.

What will happen in the House of Representatives?

The process of eligibility resolution is much the same in the House of Representatives. If a Member of Parliament, referred to the Court of Disputed Returns, is found to be ineligible, a writ will be issued for the election of a new Member for New England, and there will be a by-election to replace them.

The Turnbull Government holds majority government by one seat, with a majority of 76 seats in a house of 150. In the event that Mr Joyce is found to be ineligible, and the Coalition loses the ensuing by-election, the Government cannot be assured of the confidence of the House. After the election, because of the Coalition’s slim majority in the House, assurances (albeit conditional) of supply and confidence were received from several cross benchers, including Bob Katter, Andrew Wilkie, and Cathy McGowan providing extra security in the event of the loss of a majority. However, the arrangement is still very tentative, and Bob Katter has walked away entirely from those assurances. In short, if Mr Joyce goes, it is very likely the Government will become a minority government unable to withstand a motion of no-confidence.

There is also a risk of losing confidence even whilst the by-election for New England is underway. Temporary changes in the numbers of a Parliament (such as when a by-election is underway) usually do not have an effect on who forms government, as the discrepancies are sorted out through pairing as a matter of convention. It is unlikely that things will be occur differently if the seat of New England is vacated — that is, unless the Opposition decides to be exceptionally sneaky (which may not be past them, following the precedent of Oppositions past.)

In short, the Coalition is hoping for a favourable result from the High Court.

What will the High Court actually say?

But how likely is it that the High Court will rule against the parliamentarians in question? The decision would rest on the interpretation of the second pillar of Section 44 (i), namely where ineligibility occurs as a result of being  ‘a subject or a citizen of a foreign power’.

The only common law clarification is Sykes v Cleary, which established that a dual citizen who had not taken all reasonable steps to renounce their citizenship would be disqualified. This is determined with reference to the situation of the individual, requirements of the foreign power in regards to renouncing citizenship, the connection between the individual and foreign power, and a subjective belief that they’ve renounced their citizenship after naturalisation. The essence of this was confirmed in the case of Sue v Hill which reaffirmed that a dual citizen must take reasonable steps to renounce to be eligible to run for Parliament.

The High Court can do several things with the status quo. The minority argument in Sykes v Cleary, lead by then Chief Justice William Deane, argued for a more lenient interpretation which counted a formal renunciation of citizenship or not reasserting foreign citizenship as reasonable steps. This would cover naturalised Australian citizens who became citizens before 1986 (where the Oath of Allegiance explicitly renounced all foreign allegiances, until it was changed in the Australian Citizenship Amendment Act 1986), and may offer a reprieve to politicians who were unaware of their dual citizenship.

Where does this leave us?

If the High Court re-evaluates the application of Section 44(i), as the government hopes it will, to follow the dissents in Sykes v Cleary, a great number of the parliamentarians under scrutiny may well remain eligible for election. Mr Ludlam and Mrs Waters might see the Senate sooner than they might think.

However, if the High Court takes a very strict view on their previous rulings, which some constitutional experts feel is likely, the makeup of  Parliament would alter significantly. All the Senators under question would be ineligible to hold office. There would be several by-elections – Barnaby Joyce would have to re-contest New England against a resurgent Tony Windsor, and several Opposition MPs who have relied on the same defence as Senator Nash (including Maria Vamvakinou and Susan Lamb, who have relied on the ‘reasonable steps’ defence of Sykes v Cleary) may also be ineligible to hold office. And the inquisition into the dual nationality of sitting parliamentarians will only intensify.

And all this amidst an increasingly flawed postal vote on marriage equality, Pauline Hanson wearing a burka, and Nazis marching on Charlottesville.

What a time to be alive.