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.
Zoomster, i am not so arrogant as to say I am right so you can’t prove me wrong either.
What I am arrogant enough to say is that I am right and you can prove me wrong by linking the passage in either keane’s judgment or that of the HC which outed Roberts because he did not take reasonable steps.
I repeat. Keane specifically did NOT rule on reasonable steps. He said he wouldn’t. I have previously given you the paragraph. Would you like it again?
‘Would you like it again?’
Unnecessary, thank you. I have made it clear that I’m making inferences.
The UK’s Visa and Immigration office have some service standards published.
There is not one published for a function as minor as people wanting to renounce their citizenship.
This one for standard visa applications made from outside the UK for people wanting to visit-
These, you’d imagine, would be rated as a much higher priority than UK Citizens who are wanting to be made s ‘foreigner’.
Zoomster, you are making inferences on the basis of falsifiable assumptions – such as that Roberts was dqed because he failed to take reasonable steps.
Being falsifiable they can be proved false. And I am happy to provide you with the proof.
Do you want it or do you prefer your fantasy?
Windhover – are you talking about Keane’s first judgment? All Keane was doing was establishing the facts. It was for the full bench to decide how the law applied to it.
The sad thing for all the others claiming they ‘didn’t know’, is that Malcolm Roberts, a nobody, with almost no hope of being elected did, and even halfheartedly ‘attempted’ to renounce. This is Malcolm ’empirical evidence’ Roberts we are talking about. The others must be lying or are more dimwitted than Roberts. Assuming they are not more dimwitted, it says that they regarded their foreign citizenship so high as to not be worth sacrificing for the privilege of serving the Australian public.
The question I would like to see answered is on what precise date the renunciation took effect.
As far as I can tell, no one knows this yet. And I suspect its relevant to the HC.
Unless the HC deems that having taken reasonable steps is enough, then they are going to be as pedantic as asking the question “were you or were you not a dual citizen on the day of nomination”.
Maude. Thanks.
Exactly. I don’t buy for a second that any of these people didn’t know that they at least *might* be dual citizens. Yet, they signed a declaration either without bothering to check, or knowing that they were but signed it anyway. They should not be eligible to re-contest an election either way.
CC – The date of the renunciation is, of course, relevant because, if it took effect before the nomination the HC doesn’t have to decide anything. But, at the risk of going around and around in circles, the whole point about the “reasonable steps” exception is that it is intended to make the activities of the foreign power irrelevant. I really do not see how the high court can incorporate the length of time it takes the foreign power to process (or sit on) a renunciation declaration into account. That is entirely beyond the power of the Australian candidate. It would be absolutely insane if Keay was booted because the poms took more than a month to process her renunciation when someone like Nash gets it done in about three days (because the Australian govt obviously leaned on the Poms). That is not about “reasonable steps”, it’s a lottery.
I’d bet my house on Keay being alright.
Confessions @ #928 Saturday, November 11th, 2017 – 4:28 pm
Confessions @ #953 Saturday, November 11th, 2017 – 5:12 pm
That’s up to William. It’s currently disabled for the entire blog. Nothing I can do on the C+ side can change that.
a r @ #1061 Saturday, November 11th, 2017 – 11:05 pm
Anton, correct. And as to the facts all Keane determined re Roberts was as to his state of mind and his knowledge re his citizenship status -see [8] of Keanes judgment.
At [13] Keane was requested to expand the factual findings in a way that might have included whether Roberts took reasonable steps. He refused.
The HC decision in Culleton et al said nothing about the reasonableness of Roberts efforts because it was irrelevant. I can’t point to the passage where the hc didn’t say this but Zoomster, ratsak and ors could if it did exist. They can’t because it doesn’t exist.
Putin’s press secretary when asked if this happened replied with a flat ‘No’.
Typical Trump –
http://edition.cnn.com/2017/11/11/politics/president-donald-trump-vladimir-putin-election-meddling/index.html
Anton, I would very gratefully accept that bet.
How do you know why it took as long as it did for the uk to process her renunciation? Wouldn’t that be relevant too on your baseless interpretation of s.44?
The uk is not nor has ever been a foreign country that activates the Constitutional imperative. That is the only exception (see [72]).
Therefore reasonable steps is irrelevant.
Where are the keys?
backpfeifengesicht
Anyone who thinks taking reasonable steps is an issue where the uk is the foreign country should demand to know why the HC failed to deal with this issue re Roberts. Sure it was obvious he hadn’t taken reasonable steps but you wad hav thunk the HC might have made that specific finding were it a thing.
“Black letter” just means that the judge doesn’t try to reimagine the intent. So arguments like “How Aussie is Barnaby!” won’t cut it.
For that reason I think the “reasonable steps” MP’s are actually safer now, because according to the letter, they did take reasonable steps, because they did get their renouncements as a result.
That would actually be a “black letter” judgement because to say they haven’t taken reasonable steps requires an imaginative interpretation.
I am having trouble with this whole notion of ‘reasonable steps’.
As far as I can see there are only a certain number of steps to rid yourself of citizenship:
1. Access the country’s website.
2. Ascertain whether you really are a citizen of that country and determine what the renouncing process is.
3. Download the necessary forms.
4. Fill in those forms and attach any necessary/requested documents/proofs along with a certain sum of money.
5. Submit all forms, documents and money and sit back and wait.
If you have done all the country asks in regard to ridding yourself of citizenship then that has to be reasonable steps. Anything more than this is more than reasonable, what do people think the HC wants from them, that they went to the embassy knocking on the door until they are seen, do they want the requester ringing the embassy daily/hourly/each minute.
The process to rid yourself of citizenship is as described by the country you are trying to divorce yourself from, if you have done this then that is reasonable anything more is beyond reasonable as far as I can see.
Reasonable steps is not the strictest black letter law interpretation. The strictest black letter interpretation would be disqualified unless renunciation complete, even if renunciation not possible or being held up deliberately.
HaveAchat @ #1069 Saturday, November 11th, 2017 – 10:31 pm
The sticking point is at point 5, specifically sit back and wait. If the renuciation is approved before the date the candidate nominates then no sweat. If, however, you don’t have evidence of that approval before you nominate, are you disqualified from nominating even though you have done all that is required to renunciate?
Haveachat there are many ways the Constitutional imperative might be invoked. If Hungary’s change of law in 2011 made Freydenberg a dual citizen then the Constitutional imperative would have applied to prevent him from being disqualified without him having to do anything more than write to the embassy in Canberra and ask how he could renounce (the reasonable steps proving his timely desire to renounce).
In 2013/16 elections, since his lack of knowledge of his Hungarian citizenship (assumed) is irrelevant (see [71] of the hc judgment) he would/will be gone.
It’s Time / Windhover
Thank you for that, though it still seems odd that the HC would expect someone to do more than is required to renounce their citizenship. I understand the timings are the tripping point as the act of signing the electoral form is that you don’t hold another citizenship but I cannot find anything in any of the HC rulings with regard to timings.
Saying this however, if you have attempted whereas others have not even tried how can the HC put you in the same bucket, it does seem a bit of a stretch to equate the two, but I am not a HC Judge so will have to sit and wait their further rulings should anyone be set before them.
All said and done none of us here can know what the HC will rule until it rules and all those here reiterating their own points over and over again isn’t going to influence the HC nor change the fact that they are just stating their own view of the constitution.
I do not see how, given section 45 says the seat of anyone who becomes subject to any of the disqualifications is vacant and the High Court has previously only suggested that things done by foreign government to interfere in Australia would be disregarded and the Hungarian Government is unlikely to have considered Australia specifically as it was acting on domestic motives and dislike of border arrangements with its immediate neighbours, it could be safely assumed that Hungary granting Frydenberg citizenship (if it did indeed do so) in 2011 did not trigger a vacancy that was not noticed.
Hi Tom, yes. Since I saw reasonable steps on a nomination form I assumed it was in the constitution.
Just looked at a nomination form and it’s not there either. Oh well 🙂
Haveachat, my comments are not speculation about what the HC might rule in future cases.
My comments involve the application of what the HC has very recently ruled to current cases. That is not speculation. It is comprehension.
Tom, the 2011 Hungarian rule change is an obvious example of the application of the Constitutional imperative.
HaveAchat:
Saturday, November 11, 2017 at 11:31 pm
You forgot “Send vaguely-worded email to non-existant address”
antonbruckner
I’d like to think you are correct, but can you please stick around in case I need to claim the keys to your house 🙂
How the High Court would respond to a challenge based on a change while the relevant politician is in parliament is unknown, as far as I am aware (I am not a lawyer) they have said nothing about countries changing their citizenship laws for reasons unrelated to Australia but automatically conferring citizenship on Australia Parliamentarians because of connections to their nation. It could go either way as there is nothing in the wording of the Constitution to exempt those legitimately automatically made citizens of a foreign power.
I guess it could be argued that the length of time it takes for renunciation to take effect is a mechanism by which a foreign power can exercise influence. In other words, deliberately delaying processing for an Australian known to be seeking to be an MP. But the counter argument is that there is a “normal” delay and only an unreasonable or deliberate delay would count.
Again, we don’t know when the renunciation actually took effect. We know the forms got there before the nomination and the acknowledgement came back after the nomination.
Its also possible to argue that the exact date of the election was unknown at the time the renunciation form was sent off.
It can also be argued that someone should not nominate unless and until the process of renunciation is complete – but – see above.
To renounce something is to declare rejection or repudiation. Commonly, it is an act in itself and does not necessarily require reciprocation or acknowledgement to have effect. For example, one might renounce an award or a claim to a prize, adherence to a religion, membership of a political party or an engagement to marry. Renunciation usually is enough in itself to terminate the relevant estate.
The question in relation to 44(i) is whether in declaring their renunciation a person thereat ceases to be a foreign citizen.
In Sykes, a mere declaration was not enough. A citizen had to execute their renunciation by using the specified process and the forms stipulated by the relevant State. That is, renunciation had to be in a form that would be recognised by the party to whom it was directed. If no such form exists, then other “reasonable steps” must be taken by the renouncing citizen. Likewise, if such forms exist and have not been used (as in Roberts’ case), then renunciation has not occurred.
So the question is whether an act of renunciation carried out by the citizen using the specified form/s and with payment of any required fee is sufficient to terminate citizenship for the purposes of 44(i).
Or, will it be found that for the purposes of our Constitution, foreign citizenship ends only when an act of renunciation is acknowledged and recorded by the relevant foreign State?
I doubt that the High Court would be interested in the procedures used by foreign bureaucracies to handle declarations of renunciation. What would interested them is whether such declarations were made in the specified from and were lodged prior to the close of nominations.
If Turnbull tries to use his numbers (which now may not be sufficient in any case) to refer Labor and X-bench MPs to the HC while not referring his own MPs, then he will rightly be accused of trying to use the HC to undo the result of the last election. I really doubt the HC will take kindly to that.
Who other than the Parliament has standing to take a constitutional breach to the HC?
I think the problem with any argument based on the result of the last election is that it is pretty obvious we don’t know the result of the last election, but it is pretty certain Turnbull could not at any time since the last election have held the confidence of the house using actual members with the non-members not voting.
WeWantPaul @ #1083 Saturday, November 11th, 2017 – 11:56 pm
Surely under a properly functioning democracy, any Australian citizen would have such standing? Or in the case of a concern about a particular MP under s44, any Australian citizen in that member’s electorate?
One thing about the Keay and others situation, if they are found to be ineligible that would mean that s44(i) creates a significant barrier for dual citizens to participate in federal elections.
Whereas someone who is solely an Australian citizen can decide to nominate at a moments notice, a dual citizen would only be able to participate if they they had the foresight to renounce their citizenship before they had possibly decided to nominate.
I see this as creating a significant inequality and barrier to their ability to participate in federal elections.
I don’t know if this sort of consideration would have baring in the HC but for me it goes against the Constitutional imperative of not preventing citizens from being able to stand for election.
If such a situation arose I think we would have a real and urgent need for Constitutional reform to address this inequality.
If on the other hand the HC came down in favour of Keay then I would like to see Parliament legislate to increase the time between announcing an election and the close of nominations to facilitate any dual nationals to get their renunciations in so they could nominate. I would suggest at least 2 weeks.
Are the Labor MP’s and Sharkie to be referred to the HC?
briefly @ #1087 Saturday, November 11th, 2017 – 9:37 pm
I’d suggest it is inevitable that they would be.
Barney in Go Dau says:
Sunday, November 12, 2017 at 1:40 am
briefly @ #1087 Saturday, November 11th, 2017 – 9:37 pm
Are the Labor MP’s and Sharkie to be referred to the HC?
I’d suggest it is inevitable that they would be.
If I were them, I’d sit tight until the LNP come clean. There is a chance that more non-renouncing dual citizens will be found. They will have no choice but to resign, as Alexander has done. If there are 2-3 more of these, the LNP will be unable to control the House and Labor may be able to take office and call an immediate election.
If the X-bench members came to the view that they could not be seen to be maintaining an illegitimate government, they may think their best interests – their best chances of re-election – would be served by precipitating the defeat of Turnbull in the House, leading to an early election.
briefly @ #1089 Saturday, November 11th, 2017 – 9:45 pm
But that doesn’t solve the problem.
Labors vetting procedures are based around that they believe that people in Keay’s situation are compliant with the Constitution.
That leaves them with two choices;
1. Continue as they have in the belief that a candidate is OK and risk future challenges,
or
2. amend their vetting and exclude an candidate that has not fully renounced their citizenship.
For me not a very satisfactory result either way and I think it would be much better to get the issue ruled on one way or the other by the HC.
It’s probably why Turnbull went after Sharkie, if she goes to the HC then Labor have to go as well.
The House is due to sit again on:
Nov 27-30
Dec 4-7
https://www.aph.gov.au/About_Parliament/Sitting_Calendar
The government could fall on any of these days. I guess one thing is almost certain – no Lib will be thinking of challenging Turnbull. To do so would be to invite immediate defeat in the House and the instant destruction of the government.
briefly @ #1092 Saturday, November 11th, 2017 – 9:59 pm
An election might solve the issue for Labor in the Reps but it doesn’t deal with the problem.
Also there are similar concerns regarding Katy Gallagher in the Senate.
The Labor MPs and Sharkie renounced prior to the close of nominations. There is nothing to say that for the purposes of S44(i) this is insufficient. In the past, this has always been taken to assure eligibility. The House cannot disqualify them. Only the HC can do that, and that requires a reference to the HC.
If Turnbull wants to refer them, he will have to get the numbers in the House. As things stand, he does not have the numbers. He may never get them again. One more ineligible Lib, in a marginal, and they’re gone.
There is no “problem” in the absence of a HC case.
The Labor argument is simple. None of their members are dual citizens. Those who were dual citizens prior to the close of nominations in 2016 completed acts renunciation in the specified format, as they were required to do. They were duly elected and are able sit in the Parliament. From their point of view, they were qualified to be chosen and they were so chosen.
It may not be neat. But that is the situation.
Under section 47 the House of Representatives can rule on questions of disqualification but referring to the High Court is also an option (using the until Parliament otherwise provides section). This power was used under Howard to rule one of the Government MPs did not have a pecuniary interest with the crown that violated section 44.
briefly @ #1096 Saturday, November 11th, 2017 – 10:14 pm
It just takes one case to test that position and it could all blow up in your face.
That could be Sharkie, it could be Gallagher in the Senate.
People putting their head in the sand in regards to s44(i) is why we have this mess in the first place.
you are talking about a political fix, not a solution to the problem.
Windhover – there is no bet. If the High Court says the candidate must take reasonable steps, why would it matter in the slightest what a foreign government does.
Good morning Dawn Patrollers. It’s Slow Sunday!
Mark Kenny writes about the never-ending story of an election that could take out Malcolm Turnbull
http://www.smh.com.au/federal-politics/political-opinion/the-neverending-story-of-an-election-that-could-take-out-malcolm-turnbull-20171111-gzje6p.html
Ross Gittins tells us that it’s taken an eternity, but the econocrats have finally twigged that the big problem with the nation’s education and training system isn’t its high-cost to budgets, but its failure to provide enough of our youth with the skills they need to get and keep a decent job. We need to value and pay our teachers more, he says.
http://www.smh.com.au/business/somethings-gone-badly-wrong-with-teaching-20171110-gzilhr.html
Imre Salusinszky rewrites section 44. Hilarious!
http://www.smh.com.au/comment/citizenship-crisis-here-are-the-true-tests-todays-mps-should-meet-20171110-gzip06.html
Caitlin Fitzsimmons writes that banks are failing in their obligations to cancel direct debits.
http://www.smh.com.au/money/saving/banks-are-failing-in-their-obligations-to-cancel-direct-debits-20171110-gzj6jg.html
Week 8 of Jess Irvine’s first home buying diary in which she tells us she won’t be participating in Morrison’s super saving scheme.
http://www.smh.com.au/comment/diary-of-a-first-home-buyer-week-8-why-i-wont-be-using-scomos-super-saver-scheme-20171110-gzj51s.html
Nick O’Malley on the TPP problems.
http://www.smh.com.au/federal-politics/political-news/at-apec-canada-is-awol-while-america-stays-home-playing-with-its-guns-20171111-gzjcp0.html
Peter Martin tells us not to blame high prices for our financial stress.
http://www.smh.com.au/comment/stressed-about-your-budget-please-dont-blame-high-prices-20171110-gzivdg.html
Peter FitzSimons’ Sunday column.
http://www.smh.com.au/comment/send-citizenship-stories-to-the-fair-dinkum-department-20171110-gzisrt.html
As the conversation around sexual harassment widens into a global epidemic, many working men have been left pondering if they were involved or ignored the signs.
http://www.smh.com.au/business/workplace-relations/male-workers-left-wondering-if-they-have-overstepped-with-women-too-20171111-gzjdch.html