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Reasonableness and citizenship

By Don Aitkin - posted Wednesday, 6 June 2018


Last year, when some Coalition and cross-bench politicians were saying 'Oops!' about the nature of their citizenship, Mr Shorten declared, proudly and authoritatively, that Labor had strict and rigorous procedures, and he was satisfied that all his people were safe from the High Court's frown. As it happened, he and his team seem not to have been strict and rigorous enough. Senator Katy Gallagher, former Labor Chief Minister in the ACT, was found to have been a dual citizen (Australian and UK) at the time she was elected. That decision pushed three Labor MPs, Ms Keay (Braddon, Tas,) Ms Lamb (Longman, Qld) and Mr Wilson (Fremantle, WA), and the Centre Alliance's Ms Sharkie (Mayo, SA) to resign before they were tipped out. All saw that they would have suffered the same fate as Senator Gallagher.

I wrote about dual citizenship some time ago, and wondered what objection we ought to have about dual citizens representing us in Parliament, and I'll return to that issue later. The High Court, in its recent judgment, looked to the other nation to establish what one had 'reasonably to do' to accept that you didn't want to be a citizen of that nation any more, and of course that would vary from nation to nation. Now were Ruritania, for example, to rule that no Ruritanian could ever renounce his or her citizenship, then the High Court has set out that a Ruritanian/Australian dual citizen could stand for our Parliament - at least, that is my reading of the judgment. I'm not sure that there is any nation that has so ruled, but I remember that when I was doing my National Service in the Army one of my fellow soldiers, Greek-born, received peremptory notice to turn up for military training in Corinth. For those interested, the relevant passage in the judgment involves what the Court calls a 'constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government'.

As it happens, all of the recently retired, or vacating, MPs and senators had done their renunciation paperwork before election day (which was 9 June 2016). But their renunciations weren't accepted until after that date, in some cases well past that date. In some of the cases that occurred earlier, it hasn't been clear whether or not someone is a citizen of a given nation, and some have argued that they were stateless when they were born. All in all, it is a murky area.

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The immediate outcome, of course, is the so-called Super Saturday set of by-elections, to be decided on 28 July. Mr Shorten has more egg on his face because his party has had to move the ALP National Conference to another date. Blaming the Government for this is fatuous. Decisions of this kind are advised by the Electoral Commissioner, who is not a member of the Government but an independent statutory officer. He advises both the Government and Opposition, and no doubt all other parties as well. No Government would change the advised date, for this would be to over-ride a statutory officer whose whole status rests on his being above the party fray. Now the Commissioner thought the date was 'optimal', notwithstanding that the Saturday in question would occur during the ALP's National Conference. It was not his business to decide that this would be difficult for the Labor Party, and so he should choose another day. No doubt the Speaker (who officially sets the date) did so with a certain glee, but them's the breaks. The point is that had Mr Shorten been tougher and more rigorous before the last election about dual citizenship, not to say less outspoken about his virtues in this area, he wouldn't have his present embarrassment at all.

And perhaps a word about the by-elections. There are five of them, because Labor's Tim Hammond, the Member of Perth, quit politics because of the demands on his young family. The Liberals won't field a candidate there, as far as I know. So that one's safe for Labor. In the other four the retiring members will recontest their seats. Sitting members always have a bit of an advantage unless they have been in the news for the wrong reasons (Mr Joyce, for example, is unlikely to be doing well in New England at the moment). Let's look at the others. Josh Wilson has a pretty safe seat in Fremantle, and I'm not aware that the Liberals are running a candidate against him. Rebekha Sharkie was elected for Mayo as a member of the Nick Xenophon team (renamed after his departure for State politics), and seems not have offended anyone much. The Liberals have endorsed Alexander Downer's daughter Georgina for the seat, which her father held for 24 years. Justine Keay in Braddon, faces a similar test, as the Liberals have put up the former federal member, Brett Whitely, as their candidate. He had only one term is Braddon's MP, and was a strong supporter of Tony Abbott. Susan Lamb won the seat of Longman in 2016 with One Nation preferences, which she is unlikely to get again. On the other hand, nobody knows how well One Nation will poll in the seat. Indeed, at the time of writing, no one has much idea how anyone will do in these by-elections, partly because there are so many variables.

One person who has a deep and abiding interest in the outcome is Bill Shorten, whose leadership, according to some, like Michelle Grattan, is threatened if Labor were to lose either Braddon or Longman. Such an outcome would be truly exceptional since governments do not tend to do well in by-elections, no matter which party is in office. But a decent showing by Coalition candidates would be some kind of pointer to the outcome of the next federal elections, due for early 2019, but always possible at some time in the latter part of this year.

But my interest is still in the constitutional impasse that currently exists. As I said in my last essay, the High Court has said, quite properly, that this is a task for Parliament. The Government in return has said very little about any kind of change, which would require a referendum. I think there is too little time between now and the next elections for there to be both agreement with the Opposition about the shape of such an amendment, and the kind of public education campaign that needs to occur over time for there to be a positive result in such a referendum.

The truth is that Australians have shown themselves to be deeply conservative about Constitutional change by referendum, though they seem oblivious to the kinds of Constitutional change that occur through decisions of the High Court or through the adroitness of governments, for example, in using s.96 to make grants to States to induce them to do things, or sometimes not to do things. Think about how you would frame a question that is meaningful Constitutionally and makes good sense to voters. It's not easy.

Yet the world is moving slowly and perhaps hesitantly to recognising that a person can 'belong' to two nations in a positive way, and act as a citizen in each, always accepting it won't work if the two nations are at war. You might argue that the more dual citizens there are, the less likely nations are to go to war. There is no sign that the Government is planning a referendum proposal, and all I've heard from Labor is a piece of annoyance that the Government has done nothing, rather than offering a sensible proposal of its own.

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As I wrote six months ago, this issue is not going to go away, but for the moment the High Court has stated the current rule: if you want to run for the Federal Parliament, you need to have renounced any other citizenship you have, and be able to show clear evidence of the acceptance of that renunciation, well before polling day. I would be surprised if there are any further referrals to the High Court from Parliament after the next elections.

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About the Author

Don Aitkin has been an academic and vice-chancellor. His latest book, Moving On, was published in 2016.

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