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.
Good comment on Mark Kenny’s article:
Sorry if this’s been discussed already.
I was just asked this on facechook if true..
“Commonwealth of Australia Constitution Act
46 Penalty for sitting when disqualified
Until the Parliament otherwise provides, any person
declared by this Constitution to be incapable of sitting
as a senator or as a member of the House of
Representatives shall, for every day on which he so
sits, be liable to pay the sum of one hundred pounds to
any person who sues for it in any court of competent
jurisdiction .
If Turnbull were a competent PM and leader then I’d agree. But alas for the govt it is Turnbull faced with this mess.
BK:
Unless the AFP report finds a direct link to Cash’s involvement I can’t see her standing down or resigning. And most esp if this happens during a parliamentary sitting week. Once parliament goes into recess it won’t have the impact it would otherwise have.
briefly @ #44 Friday, October 27th, 2017 – 7:30 pm
Good research. And of course this applies to Australia as well. What was your point?
Fess
Even if Michaela Cash remains in her portfolio, her wings and that of Turnbull have been severely clipped. They were attempting to be too clever by half, and they have been caught out. Their who,e strategy to smear Shorten and Labor is do em and dusted
I’ve seen this subsection of the Fair Work Act quoted on here in the last few days –
Along with comments along these lines –
All this subsection says is that 7 years of such records must be kept.
After seven years the records are no longer required and may be destroyed but the act does not direct that an organisation must destroy the records.
There is nothing to say that such documents are not ‘discoverable’ simply because they could have been lawfully destroyed.
Many organisations will keep these records for longer periods for operational reference purposes or other reasons.
The Registered Organisation Commission (‘ROC’) it seems was aware that the AWU had such records and has sought to secure them from destruction.
The ‘fact’ that they could have been destroyed is irrelevant.
Vic:
She should’ve been dumped after Hadgkiss and the revelations that emerged after her appointment of him. I just don’t think there’s a statute of limitations when it comes to how many times ministers in this govt can stuff up before they are forced to resign. I mean look at Brandis!
So, if the Richo prediction (JBishop for PM) comes to pass, I would expect Malcolm to quit Parliament. What is the chances of the ALP subsequently winning Wentworth? You would think that Turnbull still has a personal following (though I suspect it’s rapidly shrunk) and the loss of this would make the seat winnable for the ALP.
Tom.
Fess
It goes without saying. Of course this mob have trashed the place without fear favour or shame.
Even Roberts’ own website apparently decried foreign influence in our government.
Too funny given today’s happenings.
Vic:
What’s alarming and should be alarming for Liberal supporters is there is no emerging talent. The talent we were led to believe were emerging (Christian Porter, Frydenberg, O’Dwyer, Cash) have turned out to be nothing more than incompetent third-rate bureaucrat wannabes.
Total omnishambles!
Are we sure there is nobody in New England who might give Barnyard a run? The Mayor of Tamworth? Does Windsor have a protege?
Fess
Agreed. Although I don’t think much of Frydenberg, he is relatively sane compared to the rest of them
Steelydan Friday, October 27th, 2017 – 4:57 pm Comment #1032
Strange comment, Steely. It infers that he’s not at ‘home’ usually with his family.
But I do agree being at home with his family rather than in a motel down the road while he campaigns for his electorate is a good idea for him to consider.
Confessions @ #102 Friday, October 27th, 2017 – 8:54 pm
Aye.
It would have been coined a full blown roaring crisis weeks ago and a GG / media props calling for a dismissal!
But tory privilege. Vested media coverage.
Electorate who don’t really give a Fcuk.
Until it bites them on the Bum and then too late.
Two Brilliant cartoons concerning Barmy Bee.
http://www.afr.com/photogallery/opinion/david-rowes-cartoons-20170801-gxn7rd?&utm_source=social&utm_medium=twitter&utm_campaign=nc&eid=socialn:twi-14omn0055-optim-nnn:nonpaid-27/06/2014-social_traffic-all-organicpost-nnn-afr-o&campaign_code=nocode&promote_channel=social_twitter#
http://www.smh.com.au/photogallery/federal-politics/cartoons/david-pope-20120214-1t3j0
CTar – Think SD was ‘suggesting’ Barnaby might not re-stand for election.
Highly unlikely IMO.
Likely, very, very likely voters will return him.
So Kiwi Joyce will return – like a stale fart.
Bigger, redder and more obnoxious then ever.
But hopefully having damaged the Nats/ Tories in some way
The ‘instability ‘ factor will be important for the by election, the conservative voters won’t be able to lodge a protest vote with another conservative, because of the risk of delivering a
Labor government.
If Barnaby hadn’t renounced his NZ citizenship, he would still be able to buy property there.
Wages are generally not reclaimed because these people have acted in good faith and performed the duties of their office. In the case someone had not done that work or had deliberately sat in violation of the Constitution the wages would be reclaimed.
Wow! The next Q&A will be good.
Do we expect a Newspoll on Monday?
Barnaby might be feeling down, but he can take comfort in some real achievements. He has been in parliament for 13 years, all this time inelligible! In reality, he had no legitimate job. Yet he got paid for much of it on a minister’s salary, and recentle as DPM at $400k per year. Over the 13 years he must have taken at least $3 million out of the system, all inelligibly. Not to mention the office fit-out. He can justly lay claim to being the New Zealand citizen who has ripped off Australia taxpayers for more than any other. So, was he not Australia’s highest paid person without a real job? Compared to him, the Murdoch’s mythical Paxton family were rank amateurs.
Arise Sir Barnaby, Lord of the Grifters.
Dave:
The next month+ is going to be interesting that’s for sure. I expect Joyce to be returned and for MT to claim it as a win even though he was very public at the start of this High Court drama expressing confidence that the court would find Joyce eligible.
Poor judgement as usual. He should’ve just deferred to the judicial system and not offered his own legal opinion.
Coorey –
Fess –
Yes – very much so.
The Public will largely rollover as well probably – although I hope I’m wrong.
dave:
Here’s Malcolm Roberts on Sky News tonight trying out the line that the court got it right, but still I did nothing wrong.
https://www.facebook.com/SkyNewsAustralia/videos/10154999537886728/
LOL!
Tom @ #108 Friday, October 27th, 2017 – 6:21 pm
Basically zero. Trumble holds Wentworth on a 17.75% margin, it’s the 8th safest L/NP seat in Australia. Brian got 62.26% of the primary vote. Next best was Labor on 17.73 and then Green on 14.86%.
More Coorey –
Windsor on 7:30 Report after some discussion with Sales regarding the conduct of the last election and the ‘mud’ thrown says in regard to policy (starts just at the 2 minute point)-
http://www.abc.net.au/7.30/tony-windsor-on-why-hes-not-running-against/9094888
He’s never quite jelled with me. He mentions the NBN first and scatters mentions of it all through his thoughts on the environment, water and renewables as though the NBN is the major factor in ‘saving the planet’.
The implementation of the NBN is, of course, one of an inferior service being provided but it’s like other services in that it can be rectified in the future. It’s no different to public transport in that more and better bus or train services can be implemented to fix the services in the future without irreversible damage being done.
No such certainty of a retrospective fix exists in regard to the environment and, I guess, that’s why I’ve always found him a little ‘off key’.
Fess –
Yep he’s reached the end of the plank for now, but sadly the banana benders may well put him into their state parliament very soon.
Bring it on…
CTar:
If Windsor was running again his words might have salience. But he’s chosen not to run therefore his public comments can be taken with a large grain of salt. And I mean that as in a ‘who cares?’ kind of way.
A future Labor Government may choose to return fire.
——————
It’s odd isn’t it but it is very hard to imagine that ever happening.
It is hard to imagine a party more mild and acquiescent as Labor.
It sits by while everything they did in government is pilloried and reversed. In contrast it rarely reverses Tory actions.
The labor movement seems to have lost its fire.
“Wow! The next Q&A will be good.”
No it wont. It has Rudd on it doesn’t it?
Surely ROC faces a bleak future under a Labor government. In fact they will probably emasculate it and rename it PEBBLE.
Labor should put the cleaners through ROC, FWA, the IPA, the Liberal Party and all its dirty associates.
“A future Labor Government may choose to return fire.”
I would like to see it. Give a temporary minority Government what the Abbott Opposition gave the Gillard Government. Surely they could with the help of the independents exercise more control over Parliamentary proceedings and prevent the Government from shutting down debate. They won’t have the nation’s biggest media organisation acting as their propaganda arm but they should at the very least be able to embarrass and hopefully damage the Government.
imacca @ #134 Friday, October 27th, 2017 – 10:46 pm
Yes indeed it does. And Laura Tingle and my old politics tutor, Judit Brett. Can’t recall the others.
Rudd was excellent on Jon Faine’s program this morning.
Good old Bob Katter:
Rudd is trying to sell a book, so Qanda will be shite and un-viewer-worthy in that context.
And it raises the question of whether the public broadcaster should be used to give a leg up to commercial ventures of this kind.
In any case, I imagine only diehard Ruddists will be watching and cheering Qanda come Monday.
dave
on Cooreys
I doubt this is true. I think it more likely that any decisions made since they seriously came under question could be challenged.
I’d think that Joyce and Nash have been still there appearing to be business as usual ministers but that they will have avoided exercising their specific ministerial powers since about the time Canavan stood down as a minister.
Did anyone notice that while Pawleen was lauding Malcolm Roberts ‘service’ with him standing next to her she refered to him as Malcolm Robertson …
His emphasis on the NBN is clever because he’s not talking about the future of the planet but of rural people. And shitty internet is something many rural people are very personal familiar with in a practical sense now rather than as a theoretical future things like the other issues.
‘fess
Yep. Apparently this is volume one and he’s got volume 2 in the works (I wonder if it’s titled “Sh$t I’ve been doing since I got dumped”).
The Q&A format trivialises the subject the panel are supposed to be discussing. It’s about CNN level current affairs.
I haven’t watched it for years and having KRudd on there on Monday won’t change that.
[Elaugaufein
His emphasis on the NBN is clever because he’s not talking about the future of the planet but of rural people. And shitty internet is something many rural people are very personal familiar with in a practical sense now rather than as a theoretical future things like the other issues.]
I assume you’re talking about Windsor.
That’s the thing with the NBN, it had the ability to inject life into rural communities and potentially take some of the pressures off our overgrown cities.
Barney
Yes and yes exactly.
Citizen
I’ll believe that Christensen is doing this when he’s done it and not before.
Katter won’t even get a chance to bring this up in a way that it could could come to a vote in the sitting days remaining.
Out of this gigantic waste of parliamentary time Turnbull will have another reason to not have any useful debate on SSM. His by Christmas decision date will sale past.
CTar1,
This book by Rudd is up to being elected PM.
The next volume is about his time since first being elected PM.
I heard him today interviewed and he has led a completely faultless life and those that have wronged him, in his eyes in any way are basically nonentities to him.
It made listening to him very difficult.
“Rudd was excellent on Jon Faine’s program this morning.”
Yeah? Lately when i’ve seen him speak he just seems so self absorbed an annoyingly up himself.