The dual citizenship controversy has been a debacle for our political system. Whatever your position on Section 44 of the Constitution it is undeniable that our whole system has coped poorly. It has revealed the extreme limitations of our political structures and the individual people who inhabit them. The structures are the parliamentary and political party systems as well the High Court and the media; the individuals include many of those caught up in the controversy as well as our senior political leaders.
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I sympathise with the plight of those parliamentarians who have either resigned from the parliament or been referred to the High Court on the grounds of holding or being eligible to hold dual citizenship. I also advocate a referendum to reform all aspects of Section 44, not just those related to citizenship. Others who are either unsympathetic or against constitutional reform should also reflect on this exhibition of the broader limitations of our system.
When Greens Senators Scott Ludlam and Larissa Waters announced their resignations from the Senate in mid-July with some dignity, initial responses were mixed but generally unsympathetic. The Prime Minister dismissed the two senators as incredibly sloppy. He was self-satisfied. This set the scene for the party politics that inevitably followed.
When Matt Canavan, Minister for Resources, announced in late July that he too had been snared by dual citizenship through the actions of his mother, he stood down from the ministry but remained in parliament. His case was referred to the High Court sitting as a Court of Disputed Returns on the advice of the Solicitor-General, which has never been made public. Legal experts warned that resolution by the High Court could take six months or more.
Greens leader Richard di Natale called for Canavan's immediate resignation and his cross-bench colleagues, Bob Katter ("ignorance is no excuse") and Cory Bernardi ("an excuse like the dog ate my homework") were also unsympathetic.
The Greens and the cross-bench wanted an audit of all MPs, but the major parties characteristically refused. Labor consistently backed its internal cross-checking processes. Neither major party effectively explained their refusal. It remains possible that further individual cases may emerge after the High Court begins its investigations.
About this time One Nation Senator Malcolm Roberts' potential dual citizenship problems flared with the media, whose investigative work throughout has been invaluable, hot on his tail. One of his staffers even threatened a journalist with the police. Eventually under pressure One Nation referred Roberts too to the High Court.
Until then all MPs involved had been senators and their plight did not threaten the government. This changed in mid-August when Deputy Prime Minister Barnaby Joyce, member for New England, announced that he would be referred to the High Court. Relying on Solicitor-General's advice both the Attorney-General and the Prime Minister confidently expected the court to clear Joyce. The PM went even further and jumped the gun in Question Time when he claimed the High Court "will do so".
When she heard Joyce's news Senator Fiona Nash, Deputy Nationals' leader, began to investigate her own situation. Almost immediately she knew that she was in trouble but sneakily waited until the last few minutes of Senate sitting at the end of the week to reveal that she would also be referred to the High Court. Neither Joyce nor Nash, unlike Canavan, were stood down from the ministry and this seemed inconsistent.
Labor ramped up its theatrical attacks on the government as being "without legitimacy" because it was relying on Joyce's vote. The government had the support of several members of the cross-bench and was not in any immediate danger even if Joyce was ruled out. Nevertheless, the media, as it had regularly during the Gillard years of minority government, exaggerated the government's vulnerability in the interests of added drama and higher tension.
Simultaneously when it was revealed that a NZ Labor MP had asked a question about dual citizenship in the NZ Parliament at the request of Labor Senate Leader Penny Wong's chief of staff the government attempted to divert attention by accusing Opposition leader Bill Shorten of trying to undermine the government of Australia in an act of treason and conspiracy. The headline act in this demeaning display of tit-for-tat political theatre was Foreign Minister Julie Bishop who even claimed that she would find it difficult to work with a future New Zealand Labor government. A juvenile domestic squabble was turned into an international incident.
Then influential cross-bench Senator Nick Xenophon revealed his dual citizenship problems and he too will be referred to the High Court when the Senate next sits. He advised the government to stand down Joyce and Nash from the Cabinet on political not legal grounds, but reiterated that his NXT party would support the government on matters of confidence and supply.
The Attorney General, still accusing Shorten of devious tactics, doesn't expect the court to resolve the matter until October, despite the government's request for urgency. October may well be optimistic and in the absence of a parliamentary audit more cases may emerge as the citizenship circumstances of several more MPs remain unclear.
Predicting High Court decisions is unreliable. Judges have disagreed in the past on Section 44 and legal experts remain unsure. If the MPs are saved it may be because the court, faced with the enormous political consequences of this farce, exercises common sense rather than black letter interpretation. This has been a debacle in which few of our political leaders and MPs will emerge with their reputations for sense and sensitivity unscathed.
John Warhurst is an Emeritus Professor of Political Science at the Australian National University.
