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. Confessions

    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.

    This is very disheartening!

  2. Insiders tomorrow might be worth a look:
    There’s quite a bit to discuss on #Insiders this week with @KarenMMiddleton, @PhillipCoorey & @Riley7News. Our guest is @Tony_Burke.

  3. zoomster @ #689 Saturday, October 28th, 2017 – 5:53 pm

    …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.

    I think it was more an obstructionist congress that resulted in any failure on Obama’s part.

  4. briefly:

    It isn’t disheartening, it’s bloody depressing. Who do these idiots think they are? It’s like the hope and the realisation of what the first black President symbolised and could achieve was a choke hold on the nuff nuff demographic, and President Trump has unleashed their unjustified self fulfilling prophecy of perceived discrimination.

  5. Stumbled accross Miranda Devine’s piece today, posting without comment

    “THERE is something seriously wrong in Australia when the run-of the-mill practice of tipping off the media to a police raid is treated as a worse crime than union corruption which has a stranglehold on the ALP and big business, damaging our productivity, suppressing worker’s wages and delivering the highest construction costs in the world.

    It is this union stranglehold the Turnbull government has been systematically dismantling, using legislation it took to a double-dissolution election last year.

    Make no mistake, this is an existential crisis for the union movement and its political arm, the ALP. Their entire business model is being destroyed by Employment Minister Michaelia Cash, the Wonder Woman of the Turnbull government.

    Cash has proved to be the toughest and most effective foe the union movement has ever faced.

    Which, of course, is why they are trying to destroy her.”

  6. CTar1

    “Pure luck got me a set of Pirelli P7’s.,,,,,,,,,,,,,,,,,,,,,I got them for $1050 fitted”
    P7’s are what I got the car with, Lordy, $1050 for a “bargain” set, must drive even more sedately 🙂

  7. Diogenes

    Good presidents can find their way around an obstructive Congress if they are popular.

    Turnbull’s greatest failure. No matter what deals he had made to get the PM gig his popularity with the great unwashed in the aftermath of his ascension was so great he could have done what he wanted and told the RWNJ wing of his party to “Suck it up Princess” .

  8. And to lighten the mood a bit, some more from Miranda’s spryanin the Daily TurdBurgler

    “Even more inexplicably, at least two media operatives transgressed journalistic ethics by shopping Cash advisor David De Garis to Buzzfeed as the source of one tip-off about the raid.

    He lost his job and Cash was embarrassed during two days of cross-examination by a suspiciously well-briefed Cameron.

    The hypocrisy of all those fulminating about the leak is exposed when you consider their silence about the flood of malicious leaks against Cardinal George Pell, which were designed to deny him a fair trial.

    Nothing to see there. But a tip-off about a police raid, the bread and butter of crime reporters, is treated as a breach of ethics so grave that Senator Cash must resign.

    What a joke.

    Wonder Woman Cash is a threat to the most powerful force in Australia, the corrupt cartel between the union movement and bosses, in which h workers’ wages and conditions are secretly traded off for dodgy payments to unions; or when small businesses are forced to pay bribes to unions in order to work for big construction companies.”

  9. poroti

    The tyres that have been on it since I bought it looked ‘flash’ but were cheapo crap. No where near the right load rating. And with a brand name only dealers have ever heard of. The inside of the tyre walls had radial cracks on every tyre by the time I replaced them.

    They were the sort of tyre you’d put on a WRX if you were selling it.

    The new ones felt a bit strange when they were new but now they’ve hard a little of the new finish scrubbed off them they feel good.

  10. The greatly brilliant thing about Turnbull’s government is that noone needs to work to bring any of them down, they do it all by themselves. The only effort is that put in by the msm to keep them afloat despite themselves.

  11. Thanks Gorkay King. I presume the smaller number for the coalition is national. 4.8 down to 3.5. They have far too many seats and thus too much power for the size of their vote. We really need a more realistic representation in the HOR.

  12. don @ #535 Saturday, October 28th, 2017 – 1:00 pm

    …..a good local under the Shooters banner just needs to get Barney under about 45% primary and come second and it’s game on. Neither of those things are out of the question. You’re taking about a 7% swing against Joyce on primaries. In Murray and Cootamundra the Nationals lost 15 and 19 % on primaries. Joyce obviously has greater profile, but his government is more on the nose.

    Favourite but not a certainty

    I agree

    Dream on.

    The primaries last election were 52% Barnaby 29% Windsor.

    58.5% – 41.5% after the distribution of preferences.

    Good luck with overturning Barnaby.

    The swing in the recent WA election was 12.8%, and a number of swings in the high teens, so overrunning Barnyard is not without recent precedent.

  13. CTar1

    Not a car/tyre maven but the P7s have felt very good to drive on. It is the replacement cost that you mentioned that is depressing 🙂

    If you are quick the Barbican Centre is showing ‘The Death of Stalin’ and ‘Blade Runner 2049 3D’ at the mo.

  14. poroti

    The P7 range is a long running Pirelli performance/sports ‘brand’. The may have been one of MB’s factory original fit tyres for cars of our vintage.

    If you are quick the Barbican Centre is showing ‘The Death of Stalin’ and ‘Blade Runner 2049 3D’ at the mo.

    Yep. I get the advertising in my e-mail. I watched the original Blade Runner again about a month ago. The new one has fairly mixed reviews from what I’ve seen.

  15. CNN Politics
    19 mins ·
    President Donald J. Trump and his allies are seizing on a pair of revelations about his former rival Hillary Clinton and the Democratic Party aiming to flip the narrative about potential Russian collusion.


    Totally pathetic distraction.

  16. Re Sprocket_ @9:11PM:

    “Which, of course, is why they are trying to destroy her.”

    Michaelia Cash is one of those Right Wingers who has a visceral and virulent hatred of unions, unionists and workers’ rights. If the Michaelias of the world had their way, the majority of Australians would be reduced to peonage.

    Too right the unions want to and have to destroy her – politically. Like Peter Dutton, she is an enemy of Australia. The Right have no problem confusing their opponents with traitors, maybe the Progessive Left should give more of what it gets. The ALP doesn’t have a major media ally to smear her, but I think it would be enough to shine a bright light. Hadgekiss. Abuse of Police powers. And whatever else is going on we don’t (yet) know about.

  17. Fess

    Trump and his cronies are getting desperate.
    Mueller will not be distracted.
    Trump should have nothing to fear if there is no wrongdoing by him or his cronies. He should be embracing whatever scrutiny comes his way.

  18. Miranda Devine makes Malcolm Roberts look like a genius, Michaelia Cash look like a moderate, Tony Abbott look thoughtful and Brian Trumble look competent. Second generation Murdoch loon.

  19. BTW have we actually had any confirmation of Newspoll in the field? It would be unfair on poor old Trumble to make him wait to find out how bad last week was. And making him wait longer than Tony to get to 30 must frustrate him immensely also. Maybe they should just go to weekly until the final sitting week to balance things up a bit.

  20. zoomster @ #692 Saturday, October 28th, 2017 – 7:53 pm

    …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.

    More like it came out of the fact that for most of his time in office his party lacked a majority in one house of Congress or the other, and held a filibuster-proof majority at no time whatsoever. Blaming Obama for that fact that Republican Congresspeople deliberately deadlocked his agenda doesn’t make sense.

  21. Sounds like Miranda has a girl crush, ‘Wonder Woman’ indeed.

    Could she be pushing Cash for PM? Devine doesn’t sound like a fan of Turnbull.

  22. Turnbull is rapidly replacing Abbott as the ALPs best asset. He seems obsessed with Shorten and the ALP brand but no one is listening.

    Accosted by two earnest septuagenarian Liberals at a local market today handing out flyers for their Fed Lib MP, sitting on a wafer thin margin. I felt rather sorry for them ….

  23. bemused

    My “fixation” on Scotland is tiny compared with the fixation on the USofA.

    I bet you have never ever said a snide comment on all the yankee obsessors on here.

  24. Rossmore

    handing out flyers for their Fed Lib MP, sitting on a wafer thin margin.

    There must be many a Lib back bencher no matter if they are from the ‘moderate’ or rw part of the party who are not looking forward to an election.

  25. Ctar1 … been in a fed electorate with a Lib MP for as long as I can I remember …. all of a sudden the MP is appearing at community events …. they are worried ….

  26. Briefly

    Give over that absurd nonsense.

    I think Hillary is a screaming war hawk and guess what kiddy

    I have thought it since Serbia when Putin was not even around. It is known as READING and THINKING.

    HOW BLOODY DARE you imply people are Russian puppets when all they do is note the bloody obvious. I could imply that the CIA has brainwashed most of you. Perhaps they have.

    Putin did not say “We came we saw, he died”. Hillary did that all for her little old self.

    She also used the “deplorables” all herself or are you going to blame Putin for that too.

    You pack of morons are marching us to nuclear war and the tragedy is that you either cannot see it or actually WANT it.

    Has it not occurred to you kiddies WHY Russia favoured Trump. Think a teesny bit kiddies. He preferred Trump because he feared war,. Otherwise he would not have bothered being involved.

    We are at this time at a very, very, very dangerous point when world war could break out and frankly I have no patience with war mongers who fan the flames of international hatred. Syria, Iran, and NK are three flash points any one of which could trigger conflict between USA and Russia and China. here are many in the USA who WANT this war, largely on the gropunds of attack now before Russia/China gets stronger.

    There is evidence that Russia believes the USA is going to attack with nuclear weapons. It doe not MATTER if this is true or not but if Russia believes it it is very, very ,very dangerous.

    It is not some bloody joke where gungho morons get to poke sticks at the bear.

    Look I get it

    You hate those evil commies. OK OK, but do you want to risk nuclear war over it . Because that is what every bloody one of you who carps on and on about Russia gate is doing.

    The USA now has a temperamental President who is also now totally weakened. This is dangerous.

    Having used a crow bar to separate him from reaching any sort of detente with Russia the idiots running the Russiagate probe have driven Trump into the arms of the even more deranged Natanyahoo. If any single one of you thinks that is a good outcome you have rats dropping for brains.

    Currently Trump has Iran in his sights. The trouble is that if the US takes a swipe at Iran, they will swipe back. This could mean the US loses a boat or three. This is likley to inflame Trump so he goes nuclear.

    God alone knows where that would lead. At least we will not need to worry about global warming for a decade or so, but the strontium 90 is a killer.

  27. swamprat @ #739 Saturday, October 28th, 2017 – 10:33 pm


    My “fixation” on Scotland is tiny compared with the fixation on the USofA.

    I bet you have never ever said a snide comment on all the yankee obsessors on here.

    Ye gods, what a petulant statement. Have you ever thought that the USA is about 100 times the size and importance of your beloved Scotland? That maybe we are interested in a venal and corrupt President of the USA for that sake predominantly?

    I doubt it. So fixated are you about Scotland and it’s importance.

    Get some perspective!

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