2017 Australian constitutional crisis

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2017 Australian constitutional crisis
Coat of Arms of Australia.svg
DateOngoing (started 14 July 2017)
LocationCanberra, Australian Capital Territory (Parliament House, Canberra, High Court)
CauseSubsection 44(i) of the Australian Constitution
ParticipantsScott Ludlam, Larissa Waters, Matt Canavan, Malcolm Roberts, Barnaby Joyce, Fiona Nash, Nick Xenophon[1]
OutcomeOngoing, yet to be decided by the High Court

Template:Malcolm Turnbull sidebar

In 2017, the eligibility of Australians with actual or possible dual citizenship to sit in the Parliament of Australia was called into question, amounting to an ongoing political event referred to by some as the 2017 Australian constitutional crisis[2] or the citizenship crisis.[3] The issue arises from section 44 of the Constitution of Australia, which includes a subsection prohibiting allegiance to a foreign power for electoral candidates.

Various cases of elected politicians discovering that they unknowingly hold or may hold dual citizenship have been referred to the High Court of Australia,[1][4][5][6][7][8] however they have yet to be ruled on.[9] As of August 20, Senators Scott Ludlam and Larissa Waters of the Australian Greens have voluntarily resigned their seats, and their cases have been referred to the High Court alongside those of: Deputy Prime Minister Barnaby Joyce and Senators Matt Canavan and Fiona Nash, all National Party ministers in the Turnbull Government; Senator Malcolm Roberts of One Nation; and Senator Nick Xenophon, leader of the Nick Xenophon Team.[1] While Canavan has resigned from Cabinet, Joyce and Nash have remained in Cabinet with the support of Prime Minister Malcolm Turnbull.[10]

There will be a directions hearing for at least some of the cases in the High Court on 24 August.[11] The full Court is scheduled to sit next on 4 to 15 September, then on 9 to 20 October,[12] and Attorney-General George Brandis expects that the hearings will not occur until October.[11]

Background[edit | edit source]

Section 44 of the Constitution of Australia states:

44. Any person who -
(i.) Is under any acknowledgement 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 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.[13]

The wording of this section of the Constitution has cast doubt on the eligibility of several MPs and Senators who may hold citizenship with countries other than Australia, either through failure to renounce their citizenship of their country of birth or through ignorance of the citizenship by descent laws of their parents' and grandparents' countries of birth.[14]

Precedent exists of the High Court disqualifying parliamentarians on the grounds of s 44(i). In Sykes v Cleary, the High Court ruled that both major-party candidates in a 1992 by-election for the Division of Wills were ineligible to replace the separately ineligible independent Phil Cleary; Labor's Bill Kardamitsis and Liberal John Delacretaz failed to renounce their Greek and Swiss citizenships respectively. In addition, the High Court ruled that a candidate who takes "all reasonable steps" to renounce their non-Australian citizenship before their election would not face disqualification.[15][16] The most immediately relevant case is Sue v Hill, in which London-born Heather Hill, elected as a Senator for Pauline Hanson's One Nation in 1998, was ruled to have been invalidly elected and disqualified by the High Court after failing to renounce her citizenship with the United Kingdom.[17] Following a recount, Hill was replaced by Len Harris, the second Senate candidate for One Nation.[18]

In the current Parliament of Australia, following the 2016 election, the Turnbull Government holds a one-seat majority in the House of Representatives, which would be be lost if two government members of the House were to resign due to disqualification. The government would then be vulnerable to an Opposition motion of no confidence, which if carried would require the government to resign. In any case, a by-election would be held in any vacated seat and the government's majority would be removed if it lost at least one such election.[19][2]

The prelude to the crisis began when, Bob Day, of the Family First Party, resigned from the Senate on 1 November 2016 following the collapse of his business. Shortly after Day's resignation, the government announced that it would move in the Senate to refer to the High Court the matter of the validity of Day's election in July 2016 in regard to a possible breach of section 44(v) of the Constitution, which provides that a person who "has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth" (and s 44 continues) "shall be incapable of being chosen or of sitting" as a member of either house of the Parliament—and it follows that they are ineligible to be nominated for election to either house. The basis of the complaint was that, at Day's request, his Commonwealth-funded electorate office was by lease of part of a building in Adelaide that he indirectly owned, so that the Commonwealth's payments of rent would eventually come into a bank account of his own.[20][21] In April 2017 the court found that Day was not validly elected at the 2016 election and ordered that a special recount of South Australian ballot papers be held in order to determine his replacement. [22] The court announced that Lucy Gichuhi was elected in his place. The Australian Labor Party lodged a challenge, claiming that Gichuhi might still be a citizen of Kenya, hence ineligible under Constitution section 44(i) as a citizen of a "foreign power". On 19 April 2017 a full court of the High Court found that the objection had not been made out and declared Gichuhi elected.[23][24]

Senator Rodney Culleton, who had left Pauline Hanson's One Nation Party on 19 December 2016 to become an independent, had his eligibility to stand in the 2016 election challenged on two constitutional grounds. Among the grounds of ineligibility provided in Section 44, a person cannot sit in either house of the Parliament if they are bankrupt or have been convicted of a criminal offence carrying a potential prison sentence of one year or more.

Culleton was declared bankrupt by the Federal Court on 23 December 2016. On 11 January 2017, after receiving an official copy of the judgment, the President of the Senate declared Culleton's seat vacant. Culleton's appeal against that judgment was dismissed by a full court of the Federal Court on 3 February 2017.[25]

This judgment was followed later on the same day by the High Court's decision that Culleton was ineligible owing to conviction for a criminal offence carrying a potential prison sentence of one year or more. This was a decision as the Court of Disputed Returns following a reference by the Senate at the same time as with Day. It was decided that, since Culleton's liability to a two-year sentence for larceny had been in place at the time of the 2016 election, he had been ineligible for election and that this was not affected by the subsequent annulment of that conviction; the Court also held that the resulting vacancy should be filled by a recount of the ballot, in a manner to be determined by a single Justice of the Court.[26] Following that recount, on 10 March 2017 the High Court named Peter Georgiou as his replacement, returning One Nation to 4 seats.[27]

Cases[edit | edit source]

During 2017 there have arisen several cases of possible breach of s 44(i) and in two cases (Ludlam and Waters) the member has resigned from the Parliament. All cases but one (Joyce) have arisen in the Senate, and all have been referred to the High Court as Court of Disputed Returns; every reference, both those by the Senate and that by the House of Representatives, has had all-party support.

Scott Ludlam and Larissa Waters[edit | edit source]

Scott Ludlam
Larissa Waters
Scott Ludlam's (left) resignation from parliament and subsequent investigation sparked similar discoveries for many fellow elected parliamentarians, including fellow Senator Larissa Waters (right).

In late June 2017, John Cameron, a barrister from Perth, applied to the New Zealand Department of Internal Affairs to search the register of New Zealand citizens. Cameron intended to confirm whether Co-Deputy Leader of the Greens Scott Ludlam and founder of the Justice Party Derryn Hinch, both incumbent Australian Senators who were born in New Zealand, had renounced their New Zealand citizenships as required under s 44(i). Upon discovering that Ludlam, unlike Hinch, had not renounced his New Zealand citizenship, Cameron notified the Clerk of the Australian Senate and Ludlam.[28]

On 14 July 2017, Scott Ludlam announced that he still retained New Zealand citizenship from his birth in New Zealand.[29] Ludlam had settled in Australia with his family aged eight, and had previously assumed he lost his New Zealand citizenship when he naturalised as an Australian citizen in his mid-teens.[30] It is expected that Ludlam will be found to have been ineligible to be elected, requiring the seat to be filled by a recount of the 2016 federal election.[31] The next un-elected Greens candidate on the Senate ticket in Western Australia was Jordon Steele-John, a 22-year-old disability rights advocate, who will become Australia's youngest senator in history if he replaces Ludlam.[32]

The revelation prompted Ludlam's fellow co-deputy leader of the Greens, Senator Larissa Waters, to similarly discover that she held Canadian citizenship, and to resign four days after Ludlam. Waters was born to Australian parents who were briefly living in Canada, and returned with them to Australia while still a baby. She had previously believed that she was solely an Australian citizen, and that if she had wished to gain Canadian citizenship she would have needed to taken active steps before age 21. However, she discovered she had in fact always held dual citizenship since birth.[33] Her seat is also likely to be filled by a recount, giving former Democrats leader Andrew Bartlett, who held the second position after Waters on the Greens' 2016 Senate ticket in Queensland, a high chance of returning to the Senate.[34]

On 8 August 2017 the Senate resolved, with all-party support, to refer the matters of Ludlam and Waters, as well as that of Matthew Canavan, to the High Court as Court of Disputed Returns.[35][36]

Matthew Canavan[edit | edit source]

On 25 July 2017, Liberal National Party Senator Matthew Canavan resigned from his positions of Minister for Resources and Northern Australia in the Cabinet over doubts as to his eligibility to be a member of the parliament, after discovering that he was considered by the Italian authorities to be a citizen of Italy.[37]

Canavan's mother had registered him as an Italian resident abroad with the Italian consulate in Brisbane in 2006. Canavan stated he was unaware of this until his mother was prompted to inform him following news of the resignation of two Greens senators holding dual citizenship.[38] The government has taken the view that he is not in breach of the Constitution as the registration was not made with Canavan's knowledge or consent.[39]

On 8 August 2017, with all-party support, the Senate referred the position of Canavan, along with the cases of Ludlam and Waters, to the High Court as Court of Disputed Returns. The Attorney-General indicated that the Commonwealth will argue, in favour of Cavanan, that s 44(i) requires a personal acknowledgement of the connection. Canavan spoke in support but stated that he would not be voting in the Senate until the High Court decision.[35][36]

Malcolm Roberts[edit | edit source]

Senator Malcolm Roberts of the One Nation party was born in India of an Australian mother and a British father. Roberts is an Australian citizen, and in August 2017 documents were revealed by BuzzFeed indicating that Roberts was a British citizen at the age of 19.[6] Roberts stated that he had only ever been an Australian and that, in case he ever had British citizenship, before the 2016 election he took reasonable steps to renounce it. Doubts have been cast upon his view of the position.

On 9 August the Senate, with all-party support, referred his position to the High Court as Court of Disputed Returns.[40][41] The reference was moved by Roberts's party leader Pauline Hanson, with his support. He did not respond to a question in the Senate whether he would be voting before the Court's decision.

Barnaby Joyce and Fiona Nash[edit | edit source]

Scott Ludlam
Larissa Waters
Both the leader and the deputy leader of the Nationals, MP Barnaby Joyce (left) and Senator Fiona Nash (right), have been involved in the scandal after discovering they hold dual citizenship.

On 14 August 2017, Deputy Prime Minister Barnaby Joyce (leader of the National Party of Australia and member of the House of Representatives) announced that the New Zealand government had informed him that he might be a citizen of New Zealand by descent from his father; he stated that he was "shocked to receive this information". At his request, the government moved in the House of Representatives that Joyce's position be referred to the High Court as Court of Disputed Returns, which was carried with all-party support. Prime Minister Malcolm Turnbull stated that legal advice from the Solicitor-General confirmed Joyce's eligibility, but refused to release that advice or to say how it may have distinguished Joyce's position from that of Canavan. Joyce has now renounced his New Zealand citizenship and produced documentary evidence of having done so.[42] He has not resigned from his ministerial offices and will continue to vote in Parliament. The Leader of the House, Christopher Pyne, named four Labor members of the House whose positions under s 44(i) he claimed to require explanation and suggested that there are "many more" among the Opposition.[4][43][44][45] Leading experts on constitutional law do not share the government's confidence about Joyce's eligibility.[46]

Three days later on 17 August, 2017, Nationals deputy leader and Senator, Fiona Nash revealed that she had British citizenship by descent through her Scottish father. She has elected not to step down from leadership or cabinet while she is referred to the High Court.[47][48][5]

Nick Xenophon[edit | edit source]

Nick Xenophon, initially questioned for Greek or Cypriot citizenship, was confirmed by British authorities to be a British Overseas citizen.

Senator Nick Xenophon leads the Nick Xenophon Team party, which has three seats in the Senate and one in the House. In August 2017 he was asked whether he might have acquired Greek citizenship through his mother, born in Greece, and British nationality through his father, an ethnic Greek who was born in Cyprus when it was a British colony and who possessed a British passport. He stated: “I’ve never had, never sought, never received citizenship of another country but out of an abundance of caution I wrote to the Greek embassy and Cypriot high commission saying essentially, ‘I’ve never been a citizen, I don’t want to be, so if there’s any question that I could be, I renounce any rights to be’. I don’t know what else I can do in the circumstances.” He added that he had not received replies to these enquiries.[49] Later he said that he had renounced Greek citizenship but, on finding that he might be British, he had sought clarification from British authorities.[50] On 19 August he announced that British authorities had confirmed that he is a British Overseas citizen, a lesser form of British nationality.[51] He will not resign from the Parliament, but will await a High Court decision.

New Zealand political row[edit | edit source]

A row ensued between the Australian Government and the New Zealand Labour Party after it was reported that a staff member for an Australian Labor senator had asked a New Zealand MP to find out whether or not the Deputy Prime Minister of Australia, Barnaby Joyce, was a citizen of that country. Australian Foreign Minister Julie Bishop accused New Zealand's Labour Party of being "involved in allegations designed to undermine the government of Australia" and Australian Prime Minister Malcolm Turnbull accused the Australian Labor Party of conspiring "with a foreign power".[52] This claim was outright refused by the New Zealand Minister of Internal Affairs, Peter Dunne,[53] as well as NZ Labour Leader Jacinda Ardern.[54]

Implications for parliamentary majority[edit | edit source]

On August 15, 2017, Bob Katter, the sole MP of Katter's Australian Party, announced that he was withdrawing his support for the Turnbull Government as a result of this scandal.[55] Additionally, Rebekha Sharkie, the sole MP in the House of Representatives for the Nick Xenophon Team, also announced that she would no longer support the Government on matters of confidence and supply on 18 August.[56] This leaves only one crossbench MP, independent Cathy McGowan, who has indicated she will maintain 'confidence and supply' for the Turnbull Government,[57] meaning that if MP Barnaby Joyce is disqualified from Parliament, the government will still have the confidence of a majority of members. However, the disqualification of any additional government members, or Joyce's defeat in a consequent Division of New England by-election, could prove fatal to a government with a one-seat majority and limited crossbench support.

Australian Conservatives Leader Cory Bernardi has called for Parliament to be prorogued until the eligibility of members to sit in Parliament has been ruled on by the High Court and any necessary by-elections have been finalised.[58][59] Until the High Court has ruled, the legitimacy of any legislation passed by the votes of MPs and Senators whose eligibility is seen as dubious by political opponents of the government.[60]

References[edit | edit source]

  1. 1.0 1.1 1.2 "Status anxiety: Who's who in the dual citizenship mess". Australian Broadcasting Corporation. 19 August 2017. 
  2. 2.0 2.1 Remeikis, Amy (18 August 2017). "Constitutional crisis leaves Turnbull government fighting for its political life" – via The Sydney Morning Herald. 
  3. Ireland, Judith; Massola, James (19 August 2017). "Barnaby Joyce, Fiona Nash citizenship saga: Nationals in crisis, government in turmoil" – via The Sydney Morning Herald. 
  4. 4.0 4.1 Gartrell, Adam; Remeikis, Amy (14 August 2017). "Barnaby Joyce refers himself to High Court over potential dual citizenship" – via The Sydney Morning Herald. 
  5. 5.0 5.1 Murphy, Katharine; Karp, Paul (17 August 2017). "Nationals deputy leader Fiona Nash referred to high court over citizenship" – via The Guardian. 
  6. 6.0 6.1 Yaxley, Louise (9 August 2017). "Roberts confirms he was a UK citizen, heads to High Court to prove he's Australian". Australian Broadcasting Corporation. 
  7. Killoran, Matthew (8 August 2017). "Canavan’s fate rests with High Court". The Courier-Mail. 
  8. "Nick Xenophon confirmed as UK citizen, refers himself to High Court". www.theaustralian.com.au (paywalled). 20 August 2017. 
  9. Elton-Pym, James (16 August 2017). "Barnaby Joyce to join four other politicians in High Court hearing next week". SBS World News. 
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  16. Green, Antony (25 July 2017). "Section 44(i) Strikes again - Senator Canavan Makes it Three". Antony Green's Election Blog. 
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  26. Re Culleton [No 2] [2017] HCA 4 (3 February 2017).
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  32. Press, Australian Associated (20 July 2017). "Greens' Jordon Steele-John, aged 22, set to become youngest Australian senator" – via The Guardian. 
  33. Waters, Larissa. "Statement from Senator Larissa Waters". GreensMPs. Australian Greens. Retrieved 26 July 2017. 
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  35. 35.0 35.1 "Senate Hansard (proof) 8 August 2017, pp 1-6" (PDF). Commonwealth of Australia. 8 August 2017. 
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  37. Belot, Henry (25 July 2017). "Matt Canavan resigns from Malcolm Turnbull's ministry over Italian citizenship". ABC News. http://www.abc.net.au/news/2017-07-25/matt-canavan-citizenship-crisis-resigns-from-cabinet/8742702. Retrieved 26 July 2017. 
  38. "Transcript of statements on Senator Canavan's citizenship, Brisbane". Parliament of Australia. Retrieved 26 July 2017. 
  39. Massola, James (25 July 2017). "Resources Minister Matt Canavan resigns from cabinet following doubts over dual citizenship". Sydney Morning Herald. Retrieved 26 July 2017. 
  40. "Senate Hansard (proof) 9 August 2017, pp 58-62" (PDF). Commonwealth of Australia. 9 August 2017. 
  41. Hutchens, Gareth (9 August 2017). "Pauline Hanson refers Malcolm Roberts to high court over citizenship". The Guardian. https://www.theguardian.com/australia-news/2017/aug/09/pauline-hanson-refers-malcolm-roberts-to-high-court-over-citizenship. Retrieved 9 August 2017. 
  42. Vielleris, Renee (15 August 2017). "Documentary evidence Barnaby Joyce has renounced his NZ citizenship". news.com.au. http://www.news.com.au/national/politics/documentary-evidence-barnaby-joyce-has-renounced-his-nz-citizenship/news-story/dcadc95774954fb33e34d629fc402e52. Retrieved 20 August 2017. 
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  45. Hunter, Fergus (15 August 2017). "Government threatens to take Labor MPs to High Court over dual-citizenship". Sydney Morning Herald. http://www.smh.com.au/federal-politics/political-news/government-ramps-up-pressure-on-labor-as-its-majority-hangs-in-the-balance-20170814-gxw8d3.html. Retrieved 15 August 2017. 
  46. Murphy, Katharine (14 August 2017). "Barnaby Joyce's future is under a cloud, constitution experts say". The Guardian. https://www.theguardian.com/australia-news/2017/aug/14/barnaby-joyces-future-is-under-a-cloud-constitution-experts-say. Retrieved 15 August 2017. 
  47. Belot, Henry (17 August 2017). "Fiona Nash latest to be embroiled in citizenship fiasco" (in en-AU). ABC News. http://www.abc.net.au/news/2017-08-17/fiona-nash-says-she-is-a-british-citizen-will-not-stand-aside/8817998. Retrieved 17 August 2017. 
  48. Remeikis, Amy; Gartrell, Adam (18 August 2017). "Nationals deputy leader Fiona Nash reveals she has dual citizenship". Sydney Morning Herald. http://www.smh.com.au/federal-politics/political-news/nationals-deputy-leader-fiona-nashs-australian-citizenship-called-into-question-20170817-gxysrc.html. Retrieved 18 August 2017. 
  49. Lewis, Rosie (15 August 2017). "Now Xenophon enters the dual citizenship mix". The Australian.  (paywalled).
  50. Remeikis, Amy (18 August 2017). "Nick Xenophon checking whether he's a British citizen in shock new twist in citizenship crisis". Sydney Morning Herald. http://www.smh.com.au/federal-politics/political-news/nick-xenophon-checking-whether-hes-a-british-citizen-in-shock-new-twist-in-citizenship-crisis-20170818-gxyzo2.html. Retrieved 18 August 2017. 
  51. Davey, Melissa (19 August 2017). "Nick Xenophon will go to high court after finding out he's a British overseas citizen". The Guardian. https://www.theguardian.com/australia-news/2017/aug/19/nick-xenophon-will-go-to-high-court-after-finding-out-he-holds-dual-citizenship. Retrieved 19 August 2017. 
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  53. "Joyce row engulfs trans-Tasman relations". SBS World News. AAP. 15 August 2017. 
  54. "Jacinda Ardern hits back at Australia's 'false claims' and threats". 15 August 2017 – via www.newshub.co.nz. 
  55. Bickers, Claire; Le Messurier, Danielle (15 August 2017). "Katter refuses to guarantee support". The Courier-Mail. News Corp Australia Network. 
  56. Hartcher, Peter (18 August 2017). "Citizenship crisis: Bombshell crossbench decision leaves survival of the Turnbull government in doubt". Brisbane Times. Fairfax Media. 
  57. Morgan, Shana (15 August 2017). "Cathy keeps confidence in Parliament". The Border Mail. 
  58. Bernardi, Cory (18 August 2017). "The farce continues. Prorogue parliament now!". Twitter. Retrieved 21 August 2017. 
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  60. Kelly, John (21 August 2017). "Should Parliament be Prorogued? - The AIM Network". The AIM Network. The Aim Network. 

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