Only a major external event or crisis – say war with North Korea – seems likely to be able to turn the Turnbull government switch from vaudeville and back to serious. Once people start laughing at you, it becomes hard for them to take you seriously subsequently, as Julia Gillard or Tony Abbott could attest.
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A fake crisis probably won't do it. When prime ministers are pretending to be exercised about the sanctity of Australia Day in a Melbourne municipality, one knows they're pretty much played out. Likewise with the task of drawing attention to the supposed Augean stable of Bill Shorten's character, or want of it. For heaven's sake, the problem with Shorten is not that he is sinister and dangerous, but that he is bland and uninspiring, if not as wishy washy and dreary as the people he wants to supplant.
It is by no means entirely Malcolm Turnbull's fault that he and his government seem in permanent pratfall mode. No one – not even the National Party or the poor voters of New England – deserves a senior politician with the attention span or savvy of a Barnaby Joyce. Turnbull, in any event, has had no choice, even about the portfolios he has allocated him, or the extra functions, for example over south-eastern Australia's riverine water that was part of the price that Turnbull had to pay for National Party acquiescence in Tony Abbott's assassination.
Long before it turned out that Joyce had failed in simple constitutional duties in relation to his eligibility to sit in parliament, Joyce has been an embarrassment to sound administration, good policy, or any notion of government in the public interest. If he's the best thinker, leader or retail salesman the junior partner has to offer, it speaks for itself.
But even previous folksy and seemingly inarticulate National Party leaders of the past have had professional staff and party support and enough rat cunning to know not only when there is a need for attention to detail, but just how effective a constitutional hand grenade can be. That the results of such bomb-throwing can never be accurately gamed in advance makes it all the more necessary that one has crossed the Ts and dotted the Is on the fundamentals. This was something that once Nationals were good at, as those who thought back to the 1974 Night of the Long Prawns might recall in this week of the retirement of Laurie Oakes.
One could hardly expect that Johnnies-come-lately such as the Pauline Hanson One Nation group, or even the Greens, would have the background or experience to understand that Section 44 of the constitution has been wreaking havoc in Australian politics for decades. The general nature of all of the problems it has created have long been well known to the professionals. A Country Party senator, James Webster should have been pinged in 1975 (and would have been had not Sir Garfield Barwick arrogated the High Court matter to himself alone) over family contracts with the post office.
A number of members, and would be members of the Representatives or the senate, lost out over dual citizenship matters over the past 30 years. Yet another, Phil Cleary, lost his seat because he had neglected to resign the public service (as a Victorian teacher) before standing for parliament. Citizenship, government contracts, government jobs and financial stability have all figured in High Court challenges over recent years.
It is all very well to say that the exact meaning of Section 44 is complicated, that judges have disagreed about its limits, and that a modern court might be more understanding than the High Court in 1991, when the broad rules about dual nationality were discussed. One might even argue – though in my opinion not convincingly – that the section is unfair and ought to be changed by referendum.
But all of the modern arguments, and pretty much very similar facts, were before the High Court in 1991. Political professionals and constitutional lawyers who read the Cleary judgment knew there was a strict reading of the rules (the majority opinion) and a somewhat looser one (by Sir William Deane), which was arguable – perhaps more reasonable -- but very much a minority opinion.
Not a single potential member of parliament, certainly not a candidate for a major party, could have had insurmountable difficulty in meeting the tougher standard. Given the trouble that losing a seat causes, it is worth it for both candidates and the parties to know the rules, and to anticipate problems. Labor claims it has absorbed and applied the lessons. The Liberals may have been cautious but not quite careful, or trusting, enough. But the record of the others is deplorable, and suggests that the Electoral Commission should be proactive and not passive.
Only carelessness could cause a problem, and carelessness by the big boys is a lot less excusable when one sees not only how often the matter has come up, but how often it has caused significant surprises.
Someone asked me this week what would happen, under the existing interpretation, what would happen if another country, Yemen for example, decided to declare that all Australian Commonwealth MPs were citizens of that country. Would the MPs lose their seats because of this unilateral, and unwelcome, intervention?
Hardly. In fact the High Court explicitly considered this problem in 1991, and saw its way through it. Likewise it saw the problem of people who had not realised that their act of becoming naturalised Australians, perhaps in the words of allegiance even renouncing other nationalities, might not have effectively shed their citizenship – something which might have to be done by a renunciation to the authorities in the other country.
The court's decision also took into account the fact that some countries did not really accept even explicit renunciation, made to that country's authorities, continuing (as, say do the Chinese) to regard people from that country as their citizens, whether they also accept that they are Australian citizens. That is why the court set rules about whether people had done everything that was "reasonably" possible to shed the dual citizenship.
Three National ministers were foolish for not foreseeing their problem and acting before the stood for parliament. A fourth National, under conflict of interest challenge, should have recognised his problem before others did. With slapdash as the new National default setting, ministerial offices must accept their share of the blame for failure to research the vulnerabilities of their own as much as of the other side..
Most of those people whose cases will come before the High Court, including people such as Barnaby Joyce and Fiona Nash who claim that the Solicitor-General thinks the court will be sympathetic to their "dilemma" – have had ample occasion in recent time to "discover" their problem. The mere discovery and prompt remedial action could not, of course, resolve it because they should have acted before nominating for election. But it has seemed amazing that most have not admitted a problem until third parties, usually the media, have asked questions. Perhaps they have hoped that if they lay low, their situation might not be uncovered.
I said a fortnight ago that there would be more cases, and I expect that there will be more still. They are not confined to cases in which a person has a parent or grandparent born abroad -- which is where most of the external investigation has, so far, been focused.
It is not impossible that the High Court will change previous decisions in an attempt to find some distinction between "latent" and "patent" citizens of other countries, and that it treat latent cases, particularly if there was actual ignorance, more sympathetically. Perhaps the solicitor general's supposed advice that Joyce and Nash are not in trouble – even though both are clearly dual citizens – turns on an expectation that Deane's dissent will become law. That might happen, though I would not have expressed as firm, and slightly threatening, a prediction of it as Malcolm Turnbull did.
My own guess is that any candidate who is entitled, latently or patently, to apply for the passport of a foreign country could be in trouble and ought to be considering positive acts of renunciation of that right, particularly if any member of the family, particularly any descendant, was exercised the right., say so as to travel freely in the European Community. I am also curious about the position of people who might be said to have put their position in suspense, retaining a right (even post renunciation) to reapply for a foreign passport or incidents of citizenship.
If the High Court adheres to the 1991 jurisprudence, one can expect a chorus of abuse from disappointed politicians, perhaps even ministers. The Chief Justice, Susan Kiefel, reflected sadly on this problem in London only a month or so ago.
"Our courts are careful to respect the roles of Parliament and of the executive government. It is the task of the courts to decide legal questions," she told the Anglo Australian Lawyers Association, a dualist group if ever there was one.
"They do not presume to pass judgment on political decision-making.
"The approach of the courts reflects a concern for the institutions on which our system of governance depends and of which the courts are a part. That system depends upon public confidence. If persons in high office express their lack of confidence in the courts, how can members of the public be expected to maintain theirs?"
One can, of course, forgive the outsider for lacking a detailed knowledge of constitutional requirement. But politicians are volunteers for the job, and the requirements of s44 are reasonable, and not onerous. Even the outsider has a right to be puzzled at the amateurishness of political parties – and governments – that cannot get their act together on such matters. Effective politics, and government, is hard enough because of events one has no capacity to anticipate.
Are these the problems of a government so busy at "getting on with the job" and providing "effective leadership" over the provision of "jobs and growth" that it can be forgiven the odd slip? Should Joyce be excused because he has been preoccupied with great matters of state, or perhaps, has lacked the staff or resources to get everything done.?
Or are the succession of pratfalls symptomatic of a government without much in the way of purpose or direction, and not even doing a very good job of minding the shop, let alone in managing the accounts. The sheer silliness and bluster of the ministerial reaction to events, particularly from the Foreign Minister Julie Bishop, invites questions about the government's depth, judgment and capacity to concentrate.
It accentuates the impression of tired and directionless players staggering from crisis to crisis, making things up as they goes along, and looking for distractions to avert attention away from the general shambles of leadership and direction. Impotence, incapacity and improvisation become a contagion, infecting the ordinary management of affairs, reflexes with new problems and capacity to foresee occasions of political advantage. When you are cold, you are cold, seemingly unable to climb out of the abyss.
Regular drubbings at Question Time, a seeming incapacity to get counter-attacks on the opposition running, the phizzing of political skyrockets, and a steady and apparently uncontrollable array of minor administrative scandals, minor incompetence, stuff-ups and bad luck, quickly come to affect the morale of supporters. They also galvanise the hopes (and often the luck) of opponents. All the more so when it is a government not obviously scoring big hits, or even keeping the economic scoreboard ticking over.
As worrying for the government as polls indicating that it is not regaining ground from the opposition is evidence that the electorate is not much listening, very little trusting, and not a bit impressed.
Perhaps the best thing that Turnbull has going for him at the moment is the spectre of Tony Abbott, and his constant reminder, to the backbench and front bench as much as the general public, that things could be much worse, and disconnection with the public and the public interest even more obvious.
He can be thankful too that there is no alternative leader of any immediate electoral potential actively managing the muttering and the dismay. Can this show, managed this way, stay on the road another year? Managed, led and inspired this way, would the party, or its representatives, be any better off if it did?
