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 2 of 17
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  2. Leigh Sales just asked Windsor if the byelection campaign would be about policies or the ‘personal affairs of people’.

  4. mikehilliard @ #25 Friday, October 27th, 2017 – 7:01 pm

    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.

    You can include ABC in that. Their poor excuse for analysis on PM was pathetic.

  7. ://scontent-syd2-1.xx.fbcdn.net/v/t31.0-8/22829042_743854909134064_2674661779483589317_o.jpg?oh=cda6c84948a3423c141b66a98dd5621f&oe=5A765E60

  20. booleanbach

    Surely you didn’t miss our adoption of faith-based gardening on this site? We have resolved to eschew poisons and weeding in favour of thoughts and prayers.

  21. Zoomster
    I would have thought a bit of pagan garden worship could be added to to thr mix for balance; ABC style.

    Who is up for moonrise dance sets , skyclad of course?

  22. Puff

    We could, of course, pretend that the pagan worship was actually part of the thoughts and prayers, in the best Christian traditions.

  23. Catmomma
    “Oh, a fill-in girl PM.”

    She will never get over not being the first female PM of Australia. And that she was upstaged by a Labor woman.

  24. Puff, at one of my old work places we would have Solstice and Equinox BBQs.

    Having said that we also had a BBQ on 12 January 1992 (HAL 9000).

  27. Thanks Vogon Poet
    I turned off C+ in Chrome and links were – unruly!
    Bottling political despair as weed killer sounds great – but it would kill the flowers and vegs also!

  28. PB have also adopted icon pesticidal treatment.
    This photo placed in your garden will kill oxalis

    For ragwort

    And for pests from NZ

  30. Ratsak:

    Yeah this. I actually think Windsor sitting out might increase Barnyard’s risk. There’s now no distraction of reheating past fights. It’s Baaaaaaaarnaby’s record and Trumble’s record that are front and centre. Neither help him get back.

    You simply have no idea.

    Your candidate is?

    ___________________________

    BK:

    How long before, and who will introduce it, Barnaby’s “indiscretions” become a matter in the campaigns for New England?

    Won’t make a blind bit of difference.

    ______________________________

    Briefly:

    If Joyce loses the by-election it will probably be to Labor. That will make the Parliament an “interesting” place.

    Don’t be ridiculous. Labor has not run an electable candidate in this district since Bill McCarthy, 1978 – 1987, thirty years ago, and that was for the NSW state electorate(s), not Federal. Good bloke, Bill.

    He was known as ‘the best Liberal we’ve ever had’.

    Joyce will win.

    ________________________________

    Ides of March

    Don

    As on our on the ground member, thoughts on there being a candidate that could at least give Joyce a run for his money?

    No.

    Joyce is in like Flynn.

    Well, not quite the same, obviously, despite rumours to the contrary. Unsubstantiated allegations only, patently false.

    There is no credible candidate whatsoever to unseat Barnaby.

    I’ve said it before, I’ll say it again. And again.

    Up here, sheep vote.

    (cries into his NZ Marlborough SB, decides to have another to drown his sorrows. Barnaby may be a kiwi, which sullies the brand somewhat, but at least they know how to make a decent white)

  32. Oh also for a hint about the government’s rejection of the first people’s proposal, look, at bludgertrack® for QLD. I think they think, if they can hold Queensland they might have a chance.

  33. Briefly

    OK, but I was really interested in which countries you found it was OK to be elected to high office whilst a foreign citizen.

    The idea that if you are eligible to vote automatically makes you eligible for election – the democratic principle, you say – is the point in question. Intuitively, I have no problem with candidates for election to be held to a different standard. Similarly, public servants must be Australian citizens, but there is no restriction on dual citizenship. To legislate otherwise for them, or for electors would be absolutely unworkable.

  34. Seriously how is this fair? For many years, these people were receiving salaries and super contributions illegally and they are not required to pay these back? These are millions of dollars that were paid illegally to them.

  35. booleanbach

    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.

    Is this for pasture?

    Let me know how you go with blackberry. Spread ’em around, let ’em grow up tenfold. Good luck with that.

    Minimal till has had excellent results for the environment. Using glyphosate.

  36. There is a lot of ‘cargo cult’ rubbish appearing about 5G mobile competing with the NBN, including from Bill Morrow who should know better but apparently doesn’t.

    This excellent article by Laureate Emeritus Professor, Rod Tucker, of Melbourne University, sets out a few facts.

    5G will be a convenient but expensive alternative to the NBN

    Will Australia’s National Broadband Network (NBN) face damaging competition from the upcoming 5G network? NBN Co CEO Bill Morrow thinks so.

    This week, he even floated the idea of a levy on mobile broadband services, although Prime Minister Malcolm Turnbull quickly rejected the idea.

    NBN Co is clearly going to have to compete with mobile broadband on an equal footing.

    This latest episode in the NBN saga raises the question of exactly what 5G will offer broadband customers, and how it will sit alongside the fixed NBN network.

    To understand how 5G could compare with the NBN, let’s examine the key differences and similarities between mobile networks and fixed-line broadband.
    What is 5G?

    5G stands for “5th generation mobile”. It builds upon today’s 4G mobile network technology, but promises to offer higher peak connection speeds and lower latency, or time delays.

    5G’s higher connection speeds will be possible thanks to improved radio technologies, increased allocations of radio spectrum, and by using many more antenna sites or base stations than today’s networks. Each antenna will serve a smaller area, or cell.

    The technical details of 5G are currently under negotiation in international standards bodies. 5G networks should be available in Australia by 2020, although regulatory changes are still needed.
    Connections on 5G

    In a mobile network, the user’s device (typically a smart phone) communicates with a nearby wireless base station via a radio link. All users connected to that base station share its available data capacity.

    Australia’s mobile network typically provides download speeds of around 20 Mb/s. But the actual speed of connection for an individual decreases as the number of users increases. This effect is known as contention.

    Anyone who has tried to upload a photo to Facebook from the Melbourne Cricket Ground will have experienced this.

    The maximum download speed of 5G networks could be more than 1 Gb/s. But in practice, it will likely provide download speeds around 100 Mb/s or higher.

    Because of contention and the high cost of the infrastructure, mobile network operators also impose significant data download limits for 4G. It is not yet clear what level of data caps will apply in 5G networks.
    Connections on the NBN

    In a fixed-line network like the NBN, the user typically connects to the local telephone exchange via optical fibre. Directly, in the case of fibre-to-the-premises (FTTP), or by copper wiring and then fibre, in fibre-to-the-node (FTTN).

    An important difference between the NBN and a mobile network is that on the NBN, there is virtually no contention on the data path between the user and the telephone exchange. In other words, the user’s experience is almost independent of how many other users are online.

    But, as highlighted in the recent public debate around the NBN, some users have complained that NBN speeds decrease at peak usage times.

    Importantly, this is not a fundamental issue of the NBN technology. Rather, it is caused by artificial throttling thanks to the NBN Co’s Connectivity Virtual Circuit (CVC) charges, and/or by contention in the retail service provider’s network.

    Retail service providers like TPG pay CVC charges to NBN Co to gain bandwidth into the NBN. These charges are currently quite high, and this has allegedly encouraged some service providers to skimp on bandwidth, leading to contention.

    A restructuring of the wholesale model as well as providing adequate bandwidth in NBN Co’s transit network could easily eliminate artificial throttling.

    The amount of data allowed by retailers per month is also generally much higher on the NBN than in mobile networks. It is often unlimited.

    This will always be a key difference between the NBN and 5G.

    —

    https://theconversation.com/5g-will-be-a-convenient-but-expensive-alternative-to-the-nbn-86216

  37. Slav G

    Seriously how is this fair? For many years, these people were receiving salaries and super contributions illegally and they are not required to pay these back? These are millions of dollars that were paid illegally to them.

    Yep, in the name of fairness treat them just like they treat the recipients of”Robo Debt” demands.

  38. Don,

    I know the sheep vote. The only real danger to Baaaaany is the Shooters I’d think. No Windsor makes them more likely surely. As per state elections Labor will pref them over Joyce. 45% primary and he’s safe, but if the protest is on the Shooters will be in the game.

  39. Very exciting day, we were all tuned in to this at work.

    In terms of the by-election in New England, I heard Antony Green say that Barnaby starts favourite, just that if Windsor runs it will be a close result (still a Nat win) and if Windsor doesn’t run it will be a very comfortable Nat win.

    If Windsor has decided not to run then expect a comfortable Nat win in Green’s summation.

  40. Slav G @ #83 Friday, October 27th, 2017 – 8:23 pm

    Seriously how is this fair? For many years, these people were receiving salaries and super contributions illegally and they are not required to pay these back? These are millions of dollars that were paid illegally to them.

    Don’t expect this to be a sanctioned topic of conversation among the commentariat.

    Asking difficult questions isn’t their strength.

  41. Turnbull once used to remark breezily that we lived in exciting times.

    The Turnbull Curse: May you govern in exciting times.

  42. peter love
    Briefly

    OK, but I was really interested in which countries you found it was OK to be elected to high office whilst a foreign citizen.

    I’ve checked, the US, Canada, the UK, Ireland, NZ, Brazil, Portugal, Spain and a number of other EU countries. In no case are dual citizens ineligible. It is sufficient to be eligible to vote to also be eligible for election. This is also the case in the Australian States.

    For interest, here is a guide for Portugal…

    http://archive.ipu.org/parline-e/reports/2257_B.htm

    and Italy

    http://archive.ipu.org/parline-e/reports/2157_B.htm

  43. don @ #84 Friday, October 27th, 2017 – 8:24 pm

    booleanbach

    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.

    Is this for pasture?

    Let me know how you go with blackberry. Spread ’em around, let ’em grow up tenfold. Good luck with that.

    Minimal till has had excellent results for the environment. Using glyphosate.

    I read about a bloke in, I think, North East Victoria (Zoomster territory) who had a herd of goats which he hired out to clear blackberries from paddocks so chocked up with the cursed things that they were unproductive.

    Apparently a good little earner.

    So what’s happening with the biological blackberry control measures I have heard the CSIRO was working on? One was a kind of rust fungus and the other a wasp that would burrow into and kill the canes.

  48. imacca:

    The minute Cash called in the AFP to investigate the leak gave the govt a legitimate excuse to avoid questions about it.

  50. I now retire to watch the Rugby League on TV and later to pray for the eradication of my creeping oxalis.

    Goodnight all
    🌛

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