The recent action and excitement in federal politics continues to make no impression on the polls. This week’s reading of the BludgerTrack aggregate nudges very slightly to the Coalition on two-party preferred, but the vagaries of state breakdowns cause Labor to pick up two on the seat projection, with a gain apiece in New South Wales and Victoria. The only new addition this week is the regular Essential Research result, which provided no new data on leadership ratings. Full results on the sidebar.
Maybe one reason we haven’t seen Kevin Bonham since the new blog kicked off is that he’s over here and in my electorate!
Regarding s.44
Bennett’s conclusion that Sharkie, Keay and Lamb are “almost certainly” ineligible is correct (and as I predicted). The main reason for doubt is that it is always possible for the HC to change its mind. To do so, so quickly, would be almost unprecedented. That there appears no compelling reason to change its interpretation of s.44 (properly understood) makes a change that might assist S, K or L even more improbable.
It remains to comment that Bennet’s Opinion as reported misconceived the operation of s.44.
As the hc clearly stated at [72] there is only ONE exception to disqualification for dual citizenship (not 2 as Karen Middleton wrongly dreamt up).
The one exception applies when the laws of a foreign country irremediably interfere with a candidates qualification. If the foreign country’s laws do not irremediably interfere with a candidates qualification and the candidate holds dual citizenship it is END OF STORY.
It follows from the above that since S, K and L, like parry and Alexander before them, are dual citizens of the same country -the UK – if they are all dual citizens they are all disqualified. This conclusion is contrary to the report of Bennett’s opinion which suggests Sharkie has a stronger case than the other 2 on “reasonable steps” grounds. That part of Bennett’s opinion is nonsense because at this stage “reasonable steps” has nothing to do with anything.
The ONLY time reasonable steps comes into it is AFTER it is found that the Constitutional imperative requires releasing the candidate from non-compliance. Then, and only then, must the candidate show they have taken reasonable steps to renounce so that we can be sure by those reasonable steps the candidate has no conflicted interest in the foreign country.
I contend all the above is simple comprehension of the HC judgment in Canavan. I will be proved wrong if anyone argues anything to the contrary in the hc without being laughed out of court.
The more you think about it, the High Court is not going to OK signing that declaration about citizenship/allegiance unless the candidate has received confirmation of renunciation. They will not adjucate on a “reasonable” time for the procedure to complete by other countries, and is all redolent of the old expression of being a little bit pregnant.
A referendum on whether to change the Constitution would never succeed. And personally I would see no need to change the status quo. The original purpose of the section does, and always will, apply.
Given none of the 5 turfed made any attempt at renouncing, some big calls being made on what the HC will so hold.
Handy checklist:
Vogon Poet @ #1004 Saturday, November 11th, 2017 – 7:32 pm
How could you overlook Roberts’ unique renunciation effort?
I think i see a woman in his government photo, one who lead to his downfall.
It’s Time @ #1004 Saturday, November 11th, 2017 – 7:36 pm
Am I still a moron is how the HC saw it I believe.
The Silver Bodgie,
She’s a sneaky minx! 🙂
Electorates I’ve been to (52). I’ve been to more but based on KB’s method, they where when I was > 15 yrs old.
NSW: 41
Farrer, Riverina, Eden-Monaro, Gilmore, Hume, Hunter, Lyne, Cowper, Page, Richmond, Patterson, Newcastle, Shortland, Dobell, Robertson, Berwora, Macquarie, Cunningham, Whitlam, Mackellar, Bradfield, Warringah, North Sydney, Bennelong, Wentworth, Sydney, Grayndler, Kingsford Smith, Barton, Reid, Watson, Barton, Banks, Hughes, Blaxland, Parramatta, Fowler, McMahon, Werriwa, Macarthur, Lindsay
ACT: Fenner + Canberra
VIC: (9) Indi, Corio, Corangamite, Melbourne, Melbourne Ports, Higgins, Kooyong, Batman, Wills
Lovey – the fact that the high court will not want to adjudicate on how long foreign governments should take to process renunciations is precisely the reason why it will only care about whether candidates took all steps they could take before nomination. Your rationale would stop the high court from saying all reasonable steps were taken when a foreign government sat on a renunciation for months (perhaps for unfriendly reasons) or didn’t process it at all.
I also suspect that the sophisticated voters of Bennelong won’t be all that sympathetic to Alexander for the by-election he has caused (perhaps unlike the meat-heads in New England). Do we know who the Labor candidate is likely to be? Is there someone high profile they can parachute in?
Anton
True, but that’s life.
Nobody owes it to these guys to stand.
And you are delving into the realm of the intent or competence of other countries. No go.
Wtf is that news.com “helpful” breakdown? It’s garbage
shiftaling
Yep. Looks like it was done by a 9 yr old.
Lovey
‘Nobody owes it to these guys to stand.’
Um, but they do – as the High Court has recognised.
In a democracy, as many people as possible should offer themselves as candidates.
That isn’t to say it should be open slather (anyone can stand) but that it should be made as easy as possible, within the rules, at EACH election (so not ‘ah well, missed out this time, but you can stand at the next one’) for anyone who wants to.
…which, given that it’s usually less than a working week between an election being called and nominations closing, is an argument for the HC to look at ‘reasonable steps’ when it comes to renunciation – and Justice Keane, in his judgement on Roberts, outlined what these might look like (contacting the embassy, getting the required form, filling it out and sending it off with the required money).
Note: the Justice did not say Roberts was disqualified because his renunciation papers didn’t arrive by the nomination date. He said he was disqualified because the steps he had taken to renounce were not satisfactory.
Lyndal Howison was the candidate at the last election. She probably might run again.
Zoomster
Where does the HC say that?
And I would say as many ELIGIBLE people should offer the themselves as candidates. If ineligible, there are plenty ore.
re the photo of Gough’s Ministers.
They were not Gough’s Ministers. They were chosen by the party, with factional fights and deals aplenty.
I am pretty sure Gough would have liked to kick at least a couple out on their butts, and gained some of his own choosing. I do not think he would have cared whether the person was male or female.
And seeing how the country went into conniptions over a woman being Prime Minister, that photo is a good record of the times. We have come far, but not far enough.
’43 It is the evident intention of the Constitution that those of the people of the
Commonwealth who are qualified to become senators or members of the House
of Representatives are not, except perhaps in the case of a person “attainted of
treason” within the meaning of s 44(ii), to be irremediably disqualified. They
have the entitlement to participate in the representative government which the
Constitution establishes. In oral argument this was described as the
constitutional imperative. The purpose of s 44(i) neither requires nor allows the
denial by foreign law of that entitlement.’
http://eresources.hcourt.gov.au/downloadPdf/2017/HCA/45
This is the ‘consitutional imperative’ that the HC refers to repeatedly in its ruling/s (I think it’s in Sykes v Cleary as well).
Insiders ABC
@InsidersABC
Are we in a constitutional crisis? And how does it get resolved? Much to discuss tomorrow with our panel: @KarenMMiddleton, @farrm51 & @MStutch. 9AM, ABC TV. #auspol
Just adding this, because it is also relevant to discussions here:
‘”It would be wrong to interpret the constitutional provision in such a way
as to disbar an Australian citizen who had taken all reasonable steps to
divest himself or herself of any conflicting allegiance … [Section 44(i)]
… could scarcely have been intended to disqualify an Australian citizen
for election to Parliament on account of his or her continuing to possess a
foreign nationality, notwithstanding that he or she had taken reasonable
steps to renounce that nationality.”
No mention here that this only kicks in when the foreign nation flat out refuses to release people from citizenship.
rule of law @ #990 Saturday, November 11th, 2017 – 7:45 pm
They struggle to find enough members to hand out their own HTVs.
They may be able to do that in a by-election, but I doubt they can in a general election.
Zoomster
“Irrediambly”
Lovey: “And I would say as many ELIGIBLE people should offer the themselves as candidates. If ineligible, there are plenty [m]ore.” Having seen how many people in the modern world have a foreign-born parent (including Brits who weren’t seen as foreign till some time between 1948 and 1986), I wonder if that’s true. I’m starting to think that I’m one of the few who is eligible to stand without having to do a whole lot of renouncing – all my grandparents born in Victoria, and parents born in Gympie and Zeehan. But all those migrant ships arriving after WW2 have really messed things up for a lot of people.
ie “irremediably”, Zoomster. Tough word.
Jack
Actually most people will not be foreign citizens.
Lovey
Not sure why you have trouble with ‘irredemiably’. It’s actually a merciful term – the HC is not being black letter, but trying to ensure that no one is put in a situation where they can’t be a candidate because of the vagaries of a foreign nation.
What exactly is the case, why is Australia better off if we let Australians who are also Kiwis or Poms or Canadians into the Parliament? I don’t know Chinese law, but would the same people who are so adamant the change must be made be just as happy with an Australian / Afghan PM?
I don’t think so, it is why I think the change is actually driven mostly by racism to protect the privilege of predominantly white English speaking anglo types like Abbott, Alexander and Barnaby, rather then really and actually being to advance the cause of minorities who’ve come to Australia, but as the racists put it ‘never really assimilated’.
Zoomster,
Agreed, but it is not “the vagaries of a foreign nation” to have policies about renunciation of citizenship, nor the processing time.
If the High Court rules that, Keay, Lamb and Wilson are ok because they took ‘reasonable steps’, the judgement would be less ‘black letter’ than the October ruling that cost Barnaby his seat.
I wonder what the reaction of the conservatives will be, considering they have been bemoaning the ‘black letter law’ for the last 3 weeks.
In time it could play out that all Labor MPs are ok because they took reasonable effort but a number of the coalition are toast because they took no effort at all.
The conniptions in News Ltd alone would be fascinating.
Are you sure Lovey? (dovey?) Where and when were your parents and grandparents born? And did you marry someone whose generous country of origin confers citizenship on spouses of citizens (or did so during a time slot within which you married)? A lot of countries are very generous with their definition of citizenship – nice if you want to travel, a bugger if you want to be elected to our federal parlyament.
“If the High Court rules that, Keay, Lamb and Wilson are ok because they took ‘reasonable steps’, the judgement would be less ‘black letter’ than the October ruling that cost Barnaby his seat.”
It would be more consistent with how someone who actually bothered read the law at the last election if they are in trouble it is because of the recent decision and additional tightness in it.
Lovey, Zoomster – “irredeemably” actually.
Jack
I am sure, Australian born but probably UK citizen. And all these candidates should have been (and in some cases, I suspect actually were) just as sure.
Most people are going to have 4 grandparents and less than 3 spouses, please stop with the absurd Turnbull / Brandis suggestion it is somehow hard to work through 2 parents, 4 grandparents, and assuming there is actually a country that automatically (rather than through application) confers citizenship on spouses a few spouses at worst.
These guys (with the exception of one nation) don’t just fall into Parliament, they do years of arse kissing and networking and fundraising to get there, taking a day or two out to find out if there is a risk you got a foreign citizenship through one of the group of 7 in your life isn’t a big ask at all. Nor is it difficult, if for example you find out Italian law is quite complex, and if you wanted to get an Italian passport it might be quite tricky, renouncing won’t be tricky, it will be dead easy.
If we assume Dastyari actually needed to do all $25k of his effort to renounce, I’m happy to agree that is way too high a bar, but other than that I see nothing but entitlement and laziness in the arguments these almost exclusively white English speaking Commonwealth country entitled privileged types should be able to keep all their privileges.
Jack Aranda
Using the spelling in the HC judgement!
Zoomster:
Your comprehension of HC decision in Canavan is quite deficient.
At [72] the HC said there was only one exception. Nothing to do with reasonable steps.
Two days ago I corrected your misapprehension of the basis for Roberts disqualification- showing you Keane’s decision specifically exclude consideration of reasonable steps. Here you are repeating the same nonsense.
Lovey specifically asked you where the hc said Roberts didn’t take reasonable steps. Your response did not deal with that. For a very simple reason. The hc did not so hold.
You could easily prove me wrong, if only I were. I’m not so you can’t.
Sorry if already posted. Fizza’s citizenship woes get worse.
Whip Marino next?
http://www.smh.com.au/federal-politics/political-news/citizenship-crisis-turnbull-government-mp-nola-marino-may-be-an-italian-citizen-by-marriage-20171109-gzig4g.html
Zoomie, having had another look at the judg(e)ment, you’re right! I guess there are two words – one meaning can’t be redeemed, the other meaning can’t be remedied.
Actually, no, Windhover, Lovey didn’t ask me that.
And I have referenced the decision about Roberts. The decision about his citizenship was a separate ruling, by Justice Keane, which explicitly outlines the kinds of steps Roberts could have taken to show that he had tried to divest himself of his citizenship. The words ‘reasonable steps’ are not used, but neither is it suggested that, had he taken those steps, that the failure of the other country to validify his renunciation within a certain timeframe would have had any relevance.
As I see it, we disagree about the interpretation of the various High Court rulings on this, and I am content to accept that the High Court’s rulings might be different to mine.
I think that waiting until nomination as a candidate is open for an election or by-election to actually take any action whatsoever to ‘renounce’ your citizenship of another country, bearing in mind that the foreign country processing such requests derives no benefit from the process, and expecting the foreign country to process your request in a matter of days is not, in the commonsense meaning of the word, ‘reasonable’.
AB and Palaly
Re Who will stand in Bennelong for Labor
Maxine said she would not.
Jason Li was Kevin Rudd’s pick in 2013,
And i hope he’s being considered this time, too.
…I’m not arrogant enough to say “I’m right, so you can’t prove me wrong’ – I don’t believe the HC has ruled on the question of whether, if a candidate has taken all the necessary steps to renounce their citizenship, and the renounciation hasn’t taken final effect because of inaction on the part of the foreign country, then that candidate is ineligible.
I have seen, in various HC judgements, suggestions that the HC thinks they wouldn’t be.
Asha Leu @ #977 Saturday, November 11th, 2017 – 4:00 pm
In the WA election, I spent most of the day (10 – 6) handing out HTV’s for Labor at the second largest booth in my electorate and PHON had only one person handing out HTV’s all day.
Steve777 @ #982 Saturday, November 11th, 2017 – 4:06 pm
I work with a Liberal Party member and he told me that this was suggested for the WA election and it went down extremely poorly. The PHON alliance generally drove anger at the leadership to white-hot levels.
“I think that waiting until nomination as a candidate is open for an election or by-election to actually take any action whatsoever to ‘renounce’ your citizenship of another country, bearing in mind that the foreign country processing such requests derives no benefit from the process, and expecting the foreign country to process your request in a matter of days is not, in the commonsense meaning of the word, ‘reasonable’.”
I tend to agree it was reckless of the two ‘members’ who did it, and to my mind, there is no reason to wait so very long, unless they were only preselected the night before. I think however on any reasonable understanding of the HC’s position as at the last election they would have been fine if they have any problem it is because of the new HC positions.
In the context of the last election where there was a whole group of members who if you believed what they say they were actually stupid enough to sign a false declaration without checking, or if like me you don’t actually believe them at all, and consider it more likely they deliberately signed a false declaration to get a benefit, then waiting a bit too long is still admirable behaviour.
Keay I believed had lodged her renounciation several weeks before the close of nominations. For some reason the U.K. took a long time to send the resulting certificate.
…and, of course, the majority of candidates don’t represent major parties, and many of them only decide whether they’re running or not on the day the election is announced (or even, as happened once with me, three or four days after). The timing of an election can make a world of difference, and sometimes whether you run or not depends on your personal circumstances in that particular window of time.
… and of course, the majority of candidates don’t really have to worry if they are eligible or not, unless they have some moral aversion to signing false declarations.