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”

Comments Page 14 of 17
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  6. Guytaur

    The fact that the Trump supporters have now gone onto the attack on Mueller accusing HIM of colluding with Russia will possibly throw enough mud to stick and discredit his findings.

    Now as i have said a hundred times on here about just about every ballot, when you throw mud the people chucking the mud usually get splattered too.

  8. poroti @ #647 Saturday, October 28th, 2017 – 7:24 pm

    guytaur

    and how Truffles has changed from all those years ago 😆

    Or as ‘others’ are on the record have said –

    “He’s a prick,” says ex-business-partner Nicholas Whitlam, who says he is being restrained in what he says so as not to fuel an ongoing feud.

    “He’s a turd,” says former Labor senator Jim McClelland. “He’s easy to loathe, he’s a shit, he’d devour anyone for breakfast, he’s on the make, he’s cynical, he’s offensively smug. He’s a good exploiter of publicity.

    For Malcolm Bligh Turnbull, life is attack, attack, attack.

    http://www.smh.com.au/good-weekend/gw-classics/raging-turnbull-20140904-10c7ye.html

    I still think Lucy is the brains of the family.

    That doesn’t mean I want her calling the shots on Sydney’s future via to Sydney Commission thingy or whatever its called.

    She is one too many turnbulls IMO.

    But aren’t they all ?

  11. “For Malcolm Bligh Turnbull, life is attack, attack, attack.”

    What, he really is just Abbott in a better suit? Who’d have thought it?

  12. Apologies if already posted (I’ve been out this afternoon).

    ABC 7pm radio news had Barnaby saying he believed the Solicitor General who told him he wouldn’t be booted. Just like you accept a doctor’s advice said Barnaby. He said nothing about getting a second opinion.

    So Barnaby goes into the by-election as if nothing had happened (except perhaps seeking the sympathy vote after those big bad HC judges treated him so badly).

    Born to rule and all that.

  13. I’ve never been able to figure out how to post an image here. I’ve done it accidentally once or twice when I just wanted to post a link to a video.

    So the key is to do it “with feeling”.

  17. poroti

    I’ve noticed when I post a picture that when you see it post sometimes it shows initially as a link.

    Often if you ‘refresh’ once or twice the picture will appear.

  19. If Mueller uses the dossier at all he will most likely use only those parts that have been verified by other parties, so he doesn’t have to rely on its veracity entirely at all. That way he can sidestep any accusations of using DNC/Hillary material.

  21. dave

    This program on the ABC about Queen Victoria is very good IMO.

    It shows her in quite a different light to the ‘versions’ of her we’ve seen before.

    I watched it a few months ago via one of the streaming services.

  26. lizzie


    A new economic assessment of the impact hydraulic fracking would have on the Northern Territory shows the financial benefit does not warrant a lifting of the current moratorium, a Canberra-based think tank says…………

    lizzie, I really, really, really appreciate your posts. Hang on in there, and give ’em heaps.

    You and Victoria are must reads for me.

  27. The dummy’s thesis on Hillary – that she represented a grave threat to world peace, blah-blah, that she was an ultra hawk, blah, blah – was put out by the Kremlin in an effort to weaken America. In the same vein, the Kremlinites published the line that Ukraine shot down MH17 in a dastardly plan to draw Russia into a war with NATO.

    The very great pity is the Russians – ruled by an authoritarian, secretive, military clique centred on Putin – have had some success. They are making mischief, encouraging and evidently funding Rightist political voices in the West and seeking to divide the centre-left.

  30. Hilary = Business as usual , which was not going to fly. Especially after Barak “Change You Can Believe In” Obama had during the GFC gone with “Wall St” rather than “Main Street” . People around the world are pissed with the current neoliberal “business as usual”. Hence the voting for all sorts who offer the hope of stopping business as usual be they Trump,Macron,Trudeau or Ardern. Death to ‘Neoliberal” economics I say.

  31. poroti

    Hilary = Business as usual , which was not going to fly.

    That’s the same thought I had about the US election.

    I thought Clinton would win but thought that there were a lot of US voters who might vote for Trump just to cause a one off ‘upset’ to the status quo that would bring some chaos (they’ve got that!) and force some proper re-evaluation of the state of the US and it’s direction.

    For most the domestic situation has just been getting worse since about 1970.

  33. poroti:

    Some are saying the rise of the far right is happening in countries that have been ‘lax’ (percieved or otherwise) on immigration and have had resultant, perceived ‘assimilation problems’. I have no position on whether this is a legitimate perception, just saying.

  34. Confessions

    It is not so much the “immigration” shite as the fact the sort of economic crap of the Maggie Thatcher/Ronnie Reagan era has screwed the peasantry of the land. The lumpen prols are saying Basta !

  36. dtt

    The assumption that people punish the attackers more than the attacked does not hold up to scrutiny (otherwise going negative would never work, and election campaigns would be all roses and rainbows).

    Here, for example, is an analysis of polling during the Watergate investigations —

    ‘…Watergate was causing more than a third of those it polled to be less likely to support Republicans in that November’s elections.’

    ‘..Democrats gained 49 seats in the House and four in the Senate…’

    https://www.washingtonpost.com/news/politics/wp/2017/05/15/how-america-viewed-the-watergate-scandal-as-it-was-unfolding/?utm_term=.10c53fea724a

    ‘Attacking” Nixon did the Democrats no harm whatsoever.

  37. Confessions…

    Anti-immigrant and especially anti-Syrian, anti-Arab, anti-African – all being essentially anti-Muslim and racially inspired – reflexes have been important in many parts of Western Europe. In the UK, resentment of other European peoples, especially Poles, and immigrants from the former Imperial territories, and fear of refugees from the Near East and Africa have all figured politically, in Right-led protests and in numerous acts of violence

    There are reported increases in reciprocal anti-semitic and homophobic expressions. Of course, wherever such expressions are common, sexist discrimination and violence is also usually common.

    We are not immune to these sentiments and nor is NZ, where immigration is likely to be radically cut.

  38. Can someone please provide the links to the scripts that fix the PB bugs. Mine have dropped out for some strange reason and I need to attach them again.

  39. dtt

    ‘The fact that the Trump supporters have now gone onto the attack on Mueller accusing HIM of colluding with Russia will possibly throw enough mud to stick and discredit his findings.

    Now as i have said a hundred times on here about just about every ballot, when you throw mud the people chucking the mud usually get splattered too.’

    And this is just internally self contradictory – first you argue that the Democrats will lose support for ‘attacking’ Trump, then you decide that Trump will gain support by attacking Mueller.

    Talk about bending over backwards to argue that Trump will come out ahead regardless!

  41. briefly:

    Plus anti immigration in the US is essentially anti Mexican and is even ascribed to anti African American in some instances.

  42. “The assumption that people punish the attackers more than the attacked does not hold up to scrutiny…”

    Exhibit 1: Tony Abbott’s Opposition 2010-13.

  43. I tried the prayerful gardening method but when I said ‘weeds begone’, I must have had PB on my mind. because all the scripts have gone

  44. I very much doubt Team Mueller are relying on the dossier in any way whatsoever They have plenty of evidence collected via intelligence services including fveys.

  45. …the business as usual Hillary was offering was actually more of Obama’s agenda. That he had limited success in delivering ‘change you can believe in’ was scarcely her fault, but came out of his inability – as a self confessed ‘Washington outsider’ – to understand the necessary processes.

  46. briefly:

    Today (Saturday) in the US there are white supremacists holding ‘White Lives Matter’ rallies. Totally nutso, and completely contradictory to the whole Black Lives Matter revolution which was about equality not about opposition.

  47. fess, poroti,

    Yep, that myth peddled by the likes of Murdoch et al that “furners are teking ar jerbs” has caught on in the minds of the great unwashed.

    A simple examination of this phenomenon though reveals that is actually the “captains of industry” that are giving their “jerbs” to the “furners”.

    However as long as the media is owned by people with a vested interest in keeping the rest of us numb and dumb this myth will continue to be peddled and accepted by the “proles”.

  48. poroti

    Pure luck got me a set of Pirelli P7’s.

    The wheels on mine are 18 x 9.5 and because of the weight of the car and the active self levelling air suspension it requires very stiff side walls. So the size is in the expensive class and the stiffness of the sidewalls generally means you would pay through the nose for them. If the load rating (sidewall stiffness) is not high enough they won’t survive a rego check.

    Mine were ordered and a substantial deposit paid on them but after the dealer got them in the ‘orderer’ didn’t come back.

    I expected that they might have been sitting in the dealers racks for years but they were still it their original unopened packaging and 4 months old.

    I got them for $1050 fitted including a full body alignment!

    I was prepared to pay a lot more for anything decent to put on it so I’m a happy chappie.

  50. Confessions
    briefly:

    Plus anti immigration in the US is essentially anti Mexican and is even ascribed to anti African American in some instances.

    Yes…anti-Latino (think of the disgraceful treatment of Puerto Rico), anti- Afro-American and explicitly anti-Muslim focus from the Trumpists. Even though there is a very strong commitment in the US to “open doors”, the institutionalised violent repression of people of colour is really terrifying. It has put me off ever wanting to visit the US.

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