Section 44 end game: New England by-election

December 2 looming as a red-letter date for the Turnbull government, as the High Court orders the Deputy Prime Minister back to the polls.

The High Court brought down its momentous ruling on the “citizenship seven” early this afternoon, which has resulted in four Senators (Larissa Waters and Scott Ludlam of the Greens, Fiona Nash of the Nationals and Malcolm Roberts of One Nation) and one member of the House of Representatives (Barnaby Joyce) losing their seats. Not disqualified are Nationals Senator Matt Canavan and Senator Nick Xenophon, the latter of whom will shortly be leaving anyway. The full judgement can be read here.

Broadly speaking, the court’s unanimous decision has been to take a black-letter, conservative approach to the meaning of the section, and accept the reasoning established by the court in the Sykes v Cleary ruling in 1992. It has rejected the dissenting opinion of Justice William Deane in Sykes v Cleary, who argued the second limb of the section 44(i), ensnaring any person who is “a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power”, should be understood to apply only where such rights have been actively acknowledged. As such, the court rejected various shades of argument that it was unreasonable to expect members should divest themselves of citizenship rights they do not realise they possess.

Since the court’s ruling is that the five members are retroactively disqualified from running at last year’s election, their positions will be filled by countbacks in the case of the four Senators, and by a by-election in the case of Barnaby Joyce and his seat of New England. There appears to be no reason at law why disqualified Senators could not recover their seats if their replacements agree to resign and their parties choose them to fill the resulting casual vacancy, provided they have resolved their citizenship issues in the interim. However, in none of the cases does it appear that this will happen.

To consider their circumstances in turn:

Barnaby Joyce

Most importantly, the government is now down a Deputy Prime Minister, after the court found nothing to complicate Barnaby Joyce’s status as a dual citizen of New Zealand acquired through his father. Joyce must re-contest his seat at a by-election in his seat of New England in northern New South Wales. It appears to have been agreed within the government that this will take place as soon as possible, on December 2. For now it will suffice to observe that Labor last held the seat in 1913, and has not come close to doing so in living memory. If a threat should loom to Joyce, it would appear more likely to come from an independent or minor party candidate. One of the former might be Tony Windsor, the independent member from the seat from 2001 to 2013, who fell 8.5% short of unseating Joyce in 2016 (UPDATE: Windsor has ruled this out). It should also be noted that Shooters Fishers and Farmers have polled strongly in three recent state by-elections, including a victory in the seat of Orange last year. It was presumably aided by the fact that One Nation is not officially registered at state level, a circumstance that does not apply at federal level. Ladbrokes is offering two betting options: $1.13 on Barnaby Joyce, and $5 on One Nation. Obviously a lot more will be said about this in weeks to come.

Fiona Nash

The court found nothing to complicate the fact that Nash is a dual British citizen through her Scottish-born father, which she had done nothing to renounce. The recount for her New South Wales seat makes life complicated for the Coalition in that it stands to elect a Liberal, Hollie Hughes, in place of a National.

Malcolm Roberts

Perhaps the least surprising aspect of the ruling was that Malcolm Roberts, who was born in India and did not properly renounce his British citizenship until six months after he was elected. The recount to replace him will elect Fraser Anning, about whom not much is known except that is a hotel owner from a farming background. Anning’s own eligibility appeared under a cloud due to bankruptcy proceedings but these were resolved early this month. Had it been otherwise, it would have been the fourth candidate on the One Nation who would have come into contention: Judy Smith, sister of Pauline Hanson. Suggestions that Roberts might find a way back to the Senate through the back door have been scotched by a media release on a party letterhead from Anning in which he is strongly critical of Roberts and others caught up in the controversy, and says he is “very much looking forward to being a Senator”. Roberts now says he plans to run at the looming Queensland state election.

Scott Ludlam

Here the situation was straightforward: Scott Ludlam was clearly a citizen of New Zealand, and hence ineligible under the first limb of Section 44(i). It appears to have been resolved that the Greens will accept the outcome of the recount process, which will deliver his Western Australian seat to the party’s number three candidate at last year’s double dissolution, 23-year-old disability advocate Jordon Steele-John.

Larissa Waters

The court also ruled that there was nothing to complicate the provision of Canadian nationality law that persons born in the country become citizens, and that her failure to renounce this citizenship rendered her ineligible. The recount will elect Andrew Bartlett, who held a Queensland Senate seat for the Australian Democrats from 1997 to 2008, and led the party in its terminal phase from 2004 to 2008.

Matt Canavan

Matt Canavan is off the hook because the court deemed he was not an Italian citizen. His difficulty related to the fact that he was included in a register of Italian residents abroad after his mother registered for citizenship and listed her children in the application form — which, among other things, entitled him to vote in Italian elections. However, Canavan never applied to become an Italian citizen, and the court was not of the view that the official status granted through this process amounted merely a “declaratory” acknowledgement of a status that existed in any case. The court has apparently opted to take a narrow view of the second limb of the sub-section, with his voting rights not deemed to make him “entitled to the rights or privileges of a subject or citizen”.

Nick Xenophon

Nick Xenophon has the status of a “British overseas citizen” through is Greek Cypriot father, by virtue of him having been born in a country that was a British colony at the time but has ceased to be so. The court ruled that this status does not amount to citizenship, or entitle him to the rights or privileges thereof, as it does not entail right of abode in the United Kingdom, nor entail a pledge of loyalty to it.

Author: William Bowe

William Bowe is a Perth-based election analyst and occasional teacher of political science. His blog, The Poll Bludger, has existed in one form or another since 2004, and is one of the most heavily trafficked websites on Australian politics.

845 comments on “Section 44 end game: New England by-election”

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  1. ratsak

    If only being an imbecile was counted as a foreign citizenship that you couldn’t renounce

    Roberts has had his moment in the spotlight and is determined that it should continue.

    The One Nation leader said it would take “a mighty person” to fill Mr Roberts’ shoes.

    “I’ve lost a great man in Malcolm Roberts. He has been my backbone in supporting me on the floor of Parliament, I think he’s just done a fantastic job. I’m devastated, absolutely devastated,” she said, before announcing he would stand for One Nation in Senator Hanson’s hometown of Ipswich.

    “This is the heart of One Nation. Ipswich is where I ran my fish and chip shop, it’s where my politics started, it’s where I won the seat of Oxley in 1996. And I believe the people of Ipswich will be embracing Malcolm Roberts as their candidate and hopefully electing him to the state Parliament.”

    Mr Roberts described Senator Hanson as a “magnificent woman”, said he accepted the court’s decision entirely and he would have more to say on a “fair and balanced” TV network in the coming days.

  2. What was a bit surprising was that, while Joyce – replete with cowdy hat – was clearly ready and prepared for the decision, Turnbull was not. His performance during the presser merely oxygenated the flames.

  3. “However, there are other paths forward. One is to conduct an audit of the eligibility of all parliamentarians to identify those MPs who may now be disqualified due to the High Court ruling. There is now sufficient certainty about the state of the law on section 44 to enable this to be conducted immediately.”

    Agree with this. Quite likely that the Greens or Crossbenchers will run with the concept i reckon.

  4. Tony Windsor‏

    Thanks to all who encouraged me to stand but can’t do it this time wife is still damaged from 2016 & all the muck ..will still stir tho

  5. I’m surprised by Canavan because the evidence presented that put doubt on him being an Italian was presented at the final hearing and was not able to be tested by the Court in the way that the Roberts evidence was.

  6. Mr Bowe,
    As lizzie has just highlighted, Tony Windsor is not standing in New England, so this bit of your summary is incorrect:

    If a threat should loom to Joyce, it would appear more likely to come from an independent or minor party candidate. One of the former might be Tony Windsor, the independent member from the seat from 2001 to 2013, who fell 8.5% short of unseating Joyce in 2016.

  7. sydneymardigras: Sad news today. Mardi Gras costume star Ron Muncaster has passed away. RIP Ron, a true legend & hero of the Parade:

  8. Well what a week!

    We keep asking the question, can the Government have a worse week than the previous one?

    And they just keep finding new ways to do so.

    The only really surprising thing about the last week was the near total absence of one, T. Abbott.

    Happy, happy, joy, joy and may the CashCrash continue.

    🙂 🙂 🙂 🙂 🙂

  9. latikambourke: To have sloppy vetting processes is one thing. But to politically expose yourself the way Barnaby has with this comment is just ineptitude.

  10. The European Union this week refused to renew the license for a weedkiller that has been in widespread use in New Zealand for the past 40 years.

    The key ingredient in chemical giant Monsanto’s Roundup, glyphosate is the most widely used weedkiller in history. The 15-year European license for glyphosate expired in 2016 and the EU has knocked back a temporary five-year license extension.

    More than 1.3 million people from seven countries had petitioned the European Union for a moratorium on the use of glyphosate based on its links to cancer.

    Glyphosate’s pervasive residues were often found at more than legal limits in soils, common food products and even people across the UK and Europe.

    The EU is close to a total ban, a huge step resisted by Monsanto and many of the world’s farmers who claim there is no viable alternative in weed control.

  11. As the Turnbull government limps from one self-created crisis to the next, Australian taxpayers might ask why they pay $300,000 and $400,000 salaries to people who exhibit such insouciance, let alone low regard for proper process.

    But for true institutional conservatives, the trashing of basic parliamentary and ministerial standards through these events is even more depressing.

    Having lawmakers deploy the ignorance defence fundamentally erodes the power of law, and materially weakens the very project of parliamentary representation.

    At the ministerial level, it renders the sanction of executive resignation hollow, by allowing a minister to simply stand with everyone else, among the great unknowing. This lack of knowledge and basic curiosity makes a mockery of the accountability mechanism central to the Westminster tradition.

    The Cash case also shows that non-public service ministerial advisers, whose only authority derives from the minister, are beyond public reach despite being paid on the public purse. The lesson is that ministers are not accountable for the actions of their direct agents, and while staff may be sacked, the minister can thus avoid being held accountable for them to the Parliament.

    Coupled with an extraordinary precedent set by the reactionaries (and endorsed by Malcolm Turnbull) who insisted Parliament was not capable of making marriage law – in direct contravention of the constitution, incidentally – the assault on longstanding conventions, occurring under this “conservative” government, has been withering.

  12. You’ve got to love the way Malcolm Turnbull behaves as if this whole shitshow is just another day at the office.

    Deputy Prime Minister turfed?

    Already got the writs pre-prepared for the By-election!

    New Ministers in new portfolios ready to rumble!

    Swearing In ceremony booked in with the GG before the day is out.

    Over-confident opinion of one’s own opinion of what the High Court will so decide?

    Mouthful of platitudinous malarkey on the back burner warming up ready to be served on a plate for the CPG to regurgitate.

    How agile! How innovative of Prime Minister Malcolm Turnbull! What a great time to be an Australian!

    Now, it’s off to Israel to appear at the pre-arranged photo op at Beersheba…as if it’s just another day at the office.

    Tea anyone?

  13. lizzie

    I saw your post earlier about Vanstone on the Drum. It was great to watch her starting to get wound up about Windsor before Julia told her he wasn’t running. She seemed quite peevish for the remainder of the discussion. 🙂

  14. mikehilliard

    Perhaps Amanda doesn’t follow Twitter. She’s missing a lot.
    And I wasn’t over-thrilled by her assessment of the No to the Aboriginals at Uluru, either.

  15. That was Malcolm Turnbull. And this is Michaelia Car Crash, for BigD

    Happy, happy, joy, joy and may the CashCrash continue.

  16. When is soon?

    Bevan Shields
    Bevan Shields
    .@SkyNewsRicho says Malcolm Turnbull is finished as Prime Minister and will be replaced soon by @JulieBishopMP #auspol
    3:38 PM · Oct 27,

  17. C@t

    You’ve got to love the way Malcolm Turnbull behaves as if this whole shitshow is just another day at the office.

    Couldn’t agree more with that assessment. Turnbull and his pals are making a mockery of our parliamentary system.

  18. Well, finally got to read the HC judgement.

    My takeaway is that George Brandis’s arguments have been shat upon from a great height, and if the man had any integrity he would resign today.

  19. Turnbull’s brash disregard for the separation of powers by enunciating so decisively on a matter before the country’s most superior court was surprising.

    Because Malcolm Turnbull truly believes he is smarter than all 7 judges on the High Court. Combined.

    This should be his political epitaph:

    “The leader of the National Party, the deputy prime minister is qualified to sit in this house and the High Court will so hold”, he decreed during a raucous question time on August 14.

    Written on his political gravestone.

  20. victoria @ #24 Friday, October 27th, 2017 – 7:00 pm

    When is soon?

    Bevan Shields
    Bevan Shields
    .@SkyNewsRicho says Malcolm Turnbull is finished as Prime Minister and will be replaced soon by @JulieBishopMP #auspol
    3:38 PM · Oct 27,

    Oh, a fill-in girl PM.

    And that would be, Julie Bishop MP, who recently insulted the new Prime Minister of New Zealand.


  21. sprocket_ @ #26 Friday, October 27th, 2017 – 6:02 pm

    Well, finally got to read the HC judgement.

    My takeaway is that George Brandis’s arguments have been shat upon from a great height, and if the man had any integrity he would resign today.

    If he had any integrity, he would have resigned immediately following the disgraceful attacks he made against Gillian Triggs some time ago.

  22. I am not old enough, but Trumble is well passed McMahon territory now.

    I will retell one of my favorite stories, my father was in the RAAF VIP flight in the ’60s.

    If at the mess he met another crew member who had also been in the same unit, they would ask each other a standard question… “who do you think was the worst PM”.

    The other person would say, “well, let me see… I think.., oh, of course you are asking who was the worse PM apart from Billy McMahon?”

    The questioner: “yes that goes without saying”.

  23. The unAustralian with a major contribution again:

    Meanwhile Malcolm Turnbull has denied using the Federal Police to do his personal bidding after 32 AFP officers were dispatched to his Point Piper mansion to rescue his cat from up a tree.
    “The AFP is an independent body and if they decide to send 32 officers around to my place to make a human pyramid to get my cat down from a tree that’s entirely their own decision,” said a relieved Mr Turnbull after being reunited with his favourite Persian. “Who knows, maybe Mr Fluffy was up the gum tree looking for terrorists or drug lords.”

    The officers advised Mr Turnbull to call on them if his cat gets up the tree again or if he has any other “get up” related trouble.

  24. re. Monsanto & glyphosphate:
    I read an article not so long ago that explained how evolution is keeping up with Monsanto by bringing forth super-weeds that are glyphosphate resistant.
    The better way to handle weeds is not glyphosphate or almost any other .weedkiller – tilling to turn weeds into the soil to rot (an ancient process, I know) is still considered best.

  25. peter love

    Briefly, you say Australia is unique in disqualifying dual citizens from election to national positions. It seems obvious though, that this would be a universal concern. Possibly other countries ensure allegiance in other ways.

    Can you elaborate on your research?

    The democratic principle is generally that the legislature will be composed of members drawn from the body of eligible voters. This applies in the 15-16 Parliaments where I’ve had time to check. To be eligible to vote in Australia, one needs to be a citizen. That should be sufficient.

    S 44(i) is premised on the view that it is not enough to be eligible to vote, to be a citizen. The inference is that a dual citizen is ipso facto of dubious tenor. The inference – nay, the direct calculation – is that they will have a compromised allegiance. This is an insult to 60-odd % of the population.

    It is not unlawful to be a dual citizen in Australia, though it has been at various times in the past. The countries that forbid or discriminate against dual citizens, such as China and Russia, are not free. They effectively use citizenship as a tool of political control. Similar impulses are present in Australia, especially on the Right.

    We have an indelibly sorry history with respect to citizenship in some ways. Aboriginal Australians were excluded from citizenship until 1967, meaning they had no political rights whatsoever. Other persons of colour were systematically refused the opportunity to become citizens. This still applies to hundreds of thousands of NZ-ers who have arrived here since 2001, and to their children and grand children, even if they are Australian-born. Abbott has proposed making some of us Stateless; of entirely revoking citizenship rights for what are essentially political offences. Refugees are effectively deprived of all the rights of legal personhood by denying their citizenship and, into the bargain, their humanity.

    In Sykes the HC found a means by which the supposedly dubious could redeem their credit. That is what renunciation is about. It is the equivalent of doing a bit of bureaucratic self-whitening of the skin; of removing the chocolate pigments. Of course, in itself it does not change allegiance. It is just paperwork, a formality.

    We are now proposing to enact Marriage Equality. The premise is that all will be treated equally, regardless of their sexuality or gender. Equal protection and equal rights are the calls. It is passing strange to me that we should be defending equality in this case and rejecting it in another. Either we are equal or we are not. As far as our political status and corresponding rights, as things stand, we are not.

  26. Katharine Murphy

    A couple of other journalists have also refloated the idea of prologueing parliament:
    “The government has the option to disappear the inconvenient sitting weeks; off session, that only requires a discussion with the Speaker. But that would be a bold move, a public admission that it couldn’t control the parliament, with significant political ramifications.”

    She closes with
    “We’ve all forgotten, but there is currently another high court case against another government MP, the National David Gillespie, which will grind on later in December.
    Turnbull once used to remark breezily that we lived in exciting times.
    I really can’t remember the last time he said that.”

    Given last year I think that has to be a real possibility.

  27. You’re supposed to be able to trust your Prime Minister to get things right, at least most of the time. It’s how John Howard kept winning election after election with his catchphrase, ‘Who do you trust?’

    You couldn’t even trust Malcolm Turnbull to successfully organise a knees-up in a brewery.

  28. steve davis @ #34 Friday, October 27th, 2017 – 7:16 pm

    How can Turnbull top this incompetence that we have seen today?

    By his vast ‘experience’ of digging deeper. Just give it a bit more time.

    Mind you, very very modest criticism of him or his utterly woeful so called government from MSM – at least so far anyway.

    Utterly hopeless.

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