Citizenship crisis is Malcolm Turnbull's burden, not Bill Shorten's
No good "crisis" should ever be wasted, as Rahm Emanuel, a former chief of staff to Barak Obama, once said. Some good could even come of our federal politicians' allegiance fiasco.
Remember that, two years ago, the Australian government adopted legislation (which Malcolm Turnbull initially opposed in cabinet when Tony Abbott was prime minister) allowing the immigration minister to strip the citizenship of, and deport, any person of dual nationality if they were a terrorist or had committed a serious national security offence.
Perhaps next time we are considering whether a politician is disqualified, we should invite the High Court, in considering a challenge to eligibility to sit in parliament, to ask itself whether Peter Dutton would be allowed to deport her or him had they been convicted of an offence and sentenced to jail for six years or more.
This is not, incidentally, the law that Dutton has used to throw out assorted Kiwi miscreants and others on "character" grounds. Such people – members of bikie gangs, for example – had usually not acquired citizenship, even if they were long resident here. If such people were convicted of an offence, and Dutton thought they were of bad character, he could detain and deport them, more or less at his whim. He cannot do that with people who are citizens, as he must first go through a process of deciding to strip them of citizenship, which he can do only if they are "citizens or nationals of another country".
Malcolm Turnbull and Bill Shorten in question time last month. Labor can afford to lose seats; the government cannot. Photo: Alex Ellinghausen
About a quarter of the Australian population – more than six million people – were born overseas. Becoming an Australian citizen does not require renunciation of previous rights or status, including rights transmitted (usually to the next generation only, and sometimes only through the father) to children born in Australia.
It's thought another four million Australian-born citizens – perhaps six million – have at least some dual-citizenship rights, such as the right to claim a passport in their parents' old country. Few of these 10 million-plus, other than the 2500 or so who stand for the 225 elected positions in the Federal Parliament at an election, have ever had any need, or inclination, to renounce any second or third citizenship.
Dutton has an expansive view of who can be regarded as a dual citizen for national security purposes. The government does not worry that Dutton's judgment on such matters could be suspect. The legislation's explanatory memorandum says: "The minister is well placed to make an assessment of public interest as an elected member of the Australian Parliament. The minister represents the Australian community and has a particular insight into Australian community standards and values ..."
As it happens, section 44(1) of the constitution, which has caused all of the trouble for the MPs, may be a good deal wider in scope than the Citizenship Act. It disqualifies from sitting in parliament anyone "under any acknowledgement of allegiance, obedience, or adherence to a foreign power", or "a subject or a citizen of a foreign power" or a person "entitled to the rights or privileges of a subject or citizen of a foreign power". Those in the last category may include the Australian-born children of former citizens of another country, and people who have not asserted their rights to be regarded as citizens of that other country, but with a latent right to assert it.
Barnaby Joyce is fighting a by-election because he was found, somewhat to his surprise, to be a person entitled to the rights of a Kiwi, on the basis that his father was born there. Joyce thinks voters in that seat are annoyed about needing to vote again and, believing in his ignorance of his dual citizenship but regarding it as some silly and unintended technicality, thinks the constitution should be amended to stop such things ever happening again.
Another constitutional dunce deplored the fact that a court (once) given to "creativity" and "judicial legislation" when it suited it was (now) given to black-letter law.
This sort of nonsense can get about because many people find it difficult to read, or to understand, High Court judgments. Actually, if anyone wanted to try, its latest judgment, on parliamentarians' citizenship, would be a good one on which to start. It is quite straightforward, and the reasoning is easy to understand, as is the fact that most of the arguments Joyce is still putting forward were ones the court specifically considered and, quite reasonably, rejected.
Just as were the arguments put on behalf of Malcolm Turnbull and his principal legal adviser, George Brandis. To add irony to insult, the court plainly preferred the argument put by former solicitor-general Justin Gleeson, with whom Brandis seemed to share a mutual loss of confidence.
The court was implementing, rather than making a colourful interpretation of, section 44. Like the court in 1991, it gave a little ground for reasonableness where strict, black-letter interpretation might have forbidden it.
The reasonableness requirement makes it ultimately a question of Australian law, not foreign law, whether one is a citizen of another country. One looks at the law of that other country first to decide whether a person was a citizen of it. But, the court said, no Australian citizen can be prevented from standing for parliament simply because the law of another country makes them one of its citizens. A person in this situation can break free of the disqualification by renouncing the citizenship, but the renunciation must be effective: one must do all that is reasonably required by the other country's law to renounce their foreign citizenship. If the other country makes it practically impossible, the court will judge the efforts made.
In adopting this view, the court was quite predictable, following previous decisions. If politicians had had their wits about them, or if their party organisations had, no one could have been surprised by the decision.
The court considered arguments suggesting that section 44(1) needed to have a mental element – consciousness of being a foreign citizen; or, for others, what The Castle called "the vibe" – whether the person, regardless of their real legal status, "felt" themselves to be Australian and Australian only. The problem was, of course, that being a citizen of another country is a matter of law, and ultimate fact, not a feeling, emotion or something that does not exist until one is aware of it.
The government argued that section 44 required that foreign citizenship needed to have been obtained voluntarily, or retained consciously. By this argument, a person needed to know or be wilfully blind (like the now suddenly retired Senate president) of this foreign citizenship.
The court also rejected the argument put by Joyce and Nationals senator Fiona Nash that a person needed to "know" of their foreign citizenship, and thus be able to be said to have "chosen" it, or to have consciously kept it going.
In parliament, Turnbull had been confident, to the point of seeming to bully the court, that it would see things his way. All seven judges joined in rejecting the government's submissions. They stuck with precedent, and with an interpretation that "adheres most closely to the ordinary and natural meaning of the language of section 44(1)". The history of why the section was in the constitution, and why it was worded that way, did not suggest anything but the obvious interpretation. In any event, any of the alternative interpretations argued, including the government's, would create their own uncertainty and instability, the court said.
Everyone, including some politicians (such as the Senate president) who had kept mum about the circumstances, now seems to have got the message. It is now apparent that there are at least eight, and possibly more, lower-house politicians whose right to sit may be open to challenge. Many of them, on the information presently available, look set for disqualification, and the seats will face by-elections.
Some of these could be Labor members – although, for them, it seems, the main issue will be whether renunciation occurs when received by the foreign government (in which case they are safe) or when acted upon by it (in which case some might not be safe). At least one crossbench member of the House of Representatives may be also in trouble.
What is now admitted to be a "crisis" saw Turnbull in his usual, dreadful form. It was embarrassing to watch.
At first, he resisted any idea of an "audit" into the situation of all MPs and senators, and was at full bluster and hector when questions were asked about Josh Frydenberg, whose mother arrived in Australia as a stateless person, but who may have regained Hungarian citizenship in recent years by virtue of a new law in Hungary. Then there was, as it seems there so often is with Turnbull, retreat, redefinition of what an "audit" may mean, if with impractical and silly efforts to make it depend on the honesty and forthrightness of the politicians involved. Yeah, right.
And, conscious that Labor members might be caught up, he decided to seek a bipartisan approach, which was to say to demand that the opposition agree with him about having his voluntary audit, followed by some jointly agreed response, at a time after parliament rose until February.
Bill Shorten, relishing the image of dithering, confusion, distraction and lack of direction the government has projected, was, naturally, unwilling to share Turnbull's pain, or the electorate's wrath at the way government seems to only talk about matters affecting politicians, and not do much for the people at large.
It could well be true that there could be further by-elections for Labor-held seats in the House of Representatives. But Labor is not defending a bare majority, and the crisis of a loss of Labor seats does not the government's very existenceor Turnbull's future, in the way that any by-election for a government-held seat can. And that is assuming Labor is worried it would lose a seat in present circumstances.
The parties cannot collude to make good, or to ignore, any existing constitutional problems, or to avoid facing the High Court. The prospect of a successful referendum amendment is zero, even if such a referendum could be held in time to save those now in trouble.
A simultaneous election for eight to 12 House of Representatives seats would quickly acquire the dimensions of a general election, including, given the closeness of the seat count and the direction of opinion polls, the possibility of a mid-term change of government. That may preserve some Coalition discipline behind the leader it has, even as more parliamentarians despair about him.
Perhaps Turnbull, aware how much the issue is coming to encapsulate his lack of grip on his party, the government and the electorate, will choose to go for broke and seek a general election, with a half-Senate election as well. Only the hope of a Labor stumble could encourage him. Given the luck all of his industry and money makes for him, such a stumble seems unlikely. But at least a felo de se in an auto-de-fe might see this skyrocket go upwards with a bang rather than the fizz in current prospect.
Jack Waterford is a former editor of The Canberra Times. jwaterfordcanberra@gmail.com