close

What’s up with Our Government: A Constitutional Crisis Q&A

Artwork by Maria Chamakala

 

As someone who follows the happenings of government almost religiously, I’ve pretty much read all there is to know about the dual citizenship drama that has our government on the precipice of a full-scale collapse. But I was watching question time the other day at uni (sad, I know) and a friend who was there had absolutely no clue what was going on. I don’t blame them, the amount of scandals and crises this government has been through already makes it hard to keep up, and easy to lose interest.

 

However, seeing as it’s shaping up to be the biggest constitutional crisis this country has seen since the Whitlam dismissal of 1975, it probably can’t hurt for everyone to get a decent understanding of the mess the government is finding itself in. So, here’s a bunch of questions my friend had about the whole thing, with some (hopefully) easily understood answers.

 

What exactly is this crisis?

Essentially, this all began on July 14 when WA Greens Senator Scott Ludlam resigned from parliament due to holding dual citizenship. Since then, many more MPs and senators have been found to be dual citizens, including fellow Greens Senator Larissa Waters, SA Nick Xenophon Team Senator Nick Xenophon, Queensland Nationals Senator Matt Canavan, Queensland National Senator Fiona Nash and Deputy Prime Minister Barnaby Joyce. Only the two Greens Senators voluntarily resigned, so the other five dual citizens have had their cases referred to the High Court, which will deliver a judgment on all of them in October.

 

Why does it matter if MPs and Senators have dual citizenship?

Basically, because the constitution – that fancy document that rules how government in Australia works – says that they can’t. Section 44(i) of the Constitution states that;

“Any person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”

This means that any Senator or MP that is found to have dual citizenship was legally ineligible to run for parliament at the time of their election, and as a result, cannot remain as an MP or Senator.

 

Does it make a difference what country they have dual citizenship with?

No. Any foreign power not covered by the Australian Constitution (all the states and territories of Australia) is covered under this rule. So, if an MP is a dual citizen of Syria or a dual citizen of the United Kingdom, they’re both equally ineligible to run for parliament.

 

What if the MPs/Senators didn’t know they were dual citizens?

This is where things get a little bit muddy. The High Court of Australia – which rules on all constitutional matters – has made an exception to s 44(i), stating that it does not apply if the candidate for Parliament has taken reasonable steps to renounce their dual citizenship. This is to ensure that someone isn’t simply unable to run for parliament just because a foreign power won’t let them renounce their citizenship.

Several of the MPs and Senators in question have used this exemption as a reason why they should not be ruled ineligible. Matt Canavan claims his mother registered him for Italian citizenship without his knowledge. Barnaby Joyce’s New Zealand citizenship was automatically given to him through his father’s New Zealand citizenship without his knowledge. Their defence relies on the interpretation of ‘taking reasonable steps to renounce’ as including being ignorant of the dual citizenship in the first place. That is where things are uncertain, and we’ll have to wait until the High Court rules to know what will happen. It should be mentioned that constitutional scholar George Williams is doubtful that politicians will be ruled eligible only because they were ignorant of breaching s 44(i): “I am not so convinced that this argument will win the day. The normal rule is that ignorance of the law is no excuse.”

 

What will happen if they’re ruled ineligible by the High Court?

That depends on if they’re a Senator or an MP. If they’re a Senator, it’s a pretty simple matter. Since Senators are almost always elected based on their party, their position will simply be filled by someone else from their party, and the makeup of the Senate won’t change.

In the case of Barnaby Joyce, his ineligibility would result in a by-election in his seat. Whilst he’s likely to be returned in parliament following an election, Barnaby Joyce’s seat of New England has been relatively contested in recent years, with independent Tony Windsor winning the seat in 2010. If he were to make a comeback, things would get very interesting.

Currently the LNP coalition currently has a one seat majority in the House of Representatives. Were Joyce to lose his seat, the Coalition would have to form minority government with one of the independent MPs. With all the current independents recently rescinding their guarantee of supply and confidence for the Government, this is by no means guaranteed. Whilst at this point we’re inundated with speculation, it means that this dual citizenship fiasco could potentially result in a fresh election if the Coalition can’t form minority government. But that’s highly unlikely at this point.

Our country is one of the most multicultural in the world. What’s the point of keeping this rule if it results in a significant portion of the population being ineligible to run for parliament?

This is something that has been debated a fair bit recently. With so much of our population born overseas, and even more having migrant parents, there’s definitely millions of people who may or may not have dual citizenship. Furthermore, the idea of s 44(i) being a preventative measure against foreign influence is decreasingly valid with automatic dual citizenship so commonplace. However, any changes to s 44(i) must be passed by a referendum requiring a majority of votes in a majority of states, which isn’t exactly a minor feat. This is considered to be unlikely in the short term. One option being considered is an audit of every parliamentarians citizenship, to avoid future surprises, as well as to end the constant accusations being hurled that certain MPs and Senators are ineligible to sit in parliament.

Alex Niehof

The author Alex Niehof

Leave a Response