You know that old axiom about parliament being full of reports called for so the government is seen to be doing something, before the findings die on the vine as politicians end up unwilling, unable, or both, to implement the reforms required?
Welcome to Section 44 of the Australian Constitution.
It’s hard to feel sorry for anyone in Canberra resigning or at risk of losing their well-paid job right now when you look at the Parliamentary library and realise various reports have flagged this problem numerous times, back to when Malcolm Fraser was prime minister in the 1980s.
Every time, they did nothing about it.
Perhaps they thought things wouldn’t unravel the way they have in the last few months because accountability has a different meaning in Canberra to the way it’s applied to everyone else in the country. Shakespeare’s line “hoist with his own petard” springs to mind.
Yet politicians like to pretend now that they’re Goldilocks, skipping through the forest, when this issue snuck up on them like the Big Bad Wolf. Oh woe is them.
They’ve known. For decades. The alarm sounded over and over and over again.
They just chose to ignore it and now, once again, are crying out that the Constitution needs to be changed because they failed to observe a very clear law in the first place.
Don’t forget that when this whole debacle began with the sudden resignation of two Greens senators in July, Prime Minister Malcolm Turnbull gleefully declared them guilty of they were guilty of “incredible sloppiness” and “extraordinary negligence” .
“When you nominate for parliament, there is actually a question – you have got to address that section 44 question, and you’ve got to tick the box and confirm you are not a citizen of another country,” Turnbull thundered at the time.
Having now lost two government senators and two MPs – half of the eight vanquished – Turnbull now sings a different song: “People are going to have to be warned in big red flashing letters ‘Dual citizenship is an issue’.”
While it’s not in red flashing letters, the top of the Australian Electoral Commission form they signed as candidates says: “Your attention is drawn in particular to section 44 of the Constitution of the Commonwealth of Australia”.
It’s an example of the popular quote, wrongly attributed to Einstein, that “insanity is doing the same thing over and over again and expecting different results.”
With the government losing two lower house MPs, including deputy PM Barnaby Joyce — and six senators having fallen afoul of the rule including Tasmanian Jacqui Lambie last week — the farce continued with suggested replacements being disqualified before they could even enter parliament, and doubts emerging over some others.
Catch 22 stupidity
Nationals senate candidate Hollie Hughes was supposed to replace Fiona Nash, disqualified because she had British citizenship by descent. But Hughes lost out in a Catch 22 fiasco of the government’s own making over part iv of Section 44 of the Constitution. It says anyone who holds any office of profit under the Crown can’t enter politics.
The High Court ruled her ineligible last week because she she took a government-appointed job on the Administrative Appeals Tribunal after missing out on a Senate seat.
As an aside, Hughes is her own mini-morality play on modern party politics. The disability campaigner from Moree outpolled sitting Liberal senator Concetta Fierravanti-Wells among the party faithful last year to take the top spot on the party’s NSW Senate ticket.
She then stood aside to give Fierravanti-Wells the No.1 slot and was set to join her on the red leather until Malcolm Turnbull threw that plan into chaos by calling a double-dissolution election, which tipped out sitting Coalition senators Nash, Arthur Sinodinos, Marise Payne and John “Wacka” Williams too.
With only 4-5 of the 12 NSW Senate seats guaranteed for the Coalition, and five senators looking for their old jobs back, Hughes ended up in 6th spot on last year’s ticket. To salve her disappointment, in September Attorney-General George Brandis gave her a plum job on the tribunal (worth up to $360,000 annually for seven years) – a favourite government consolation prize for ex-MPs who’ve lost their seats.
Hughes resigned from that job within an hour of Nash losing her Senate job, but the High Court ruled that wasn’t good enough, so this weekend, she has no job at all. Of everyone involved in this debacle, she deserves some sympathy.
Meanwhile, the chances of Jacqui Lambie’s replacement in Tasmania, Steve Martin, heading to the Senate are under a cloud because he’s the Mayor of Devonport. It’s likely to end up in the High Court to determine whether local government, a long-time training ground for aspiring state and federal politicians, falls under the Crown banner. Queensland Greens replacement Andrew Bartlett may face similar problems because he was a university academic and universities are Commonwealth-funded.
So those asides are important because the fall-out from this whole citizenship saga continues to shape who represents us.
Fraser Anning, the replacement for One Nation’s High Court-punted dual national, Malcolm Roberts, arrived in the Senate last week, immediately fell out with his party, and now sits on the crossbench as an independent having garnered 17 first preferences. Remember the fuss over Victorian Motoring Enthusiast Ricky Muir’s 2013 election to the Senate on just 17,122 primary votes?
So back to those calls for an urgent need for change from people highly motivated by the risk of losing their jobs.
Perhaps they’re right, but the next question is why didn’t they, or their predecessors, do something about it at any point since 1981, when this issue has emerged at regular internals and been the subject of multiple investigations and reports every few years.
Politicians are often accused of inaction and ignoring the wishes of voters. If you’re someone who feels like that, then sit back and poor yourself a cup of political schadenfreude over what’s happened.
First up, former Greens senators Scott Ludlam and Larissa Waters, along with Lambie, are among the few honourable politicians in this tawdry saga.
They copped it on the chin and left.
“This is my error, something I should have checked when I first nominated for preselection in 2006,” Ludlam said back in July.
Fellow New Zealander Barnaby Joyce stayed on a month later, then taxpayers picked up the tab for his appearance before the High Court, where he essentially pleaded ignorance. It didn’t wash with the court.
The arguments put before the court showed a stunning ignorance of history, with counsel for one government MP warning of a “genealogical witch hunt” because of citizenship by descent laws.
The government should have seen this approaching train wreck for years. Not just over dual citizenship, but Section 44 in general.
John Cameron, the barrister who brought Ludlam undone, has been campaigning on this issue for years. In 2010, he was trying to check the status of UK-born Julia Gillard and Tony Abbott with the British Home Office, then tried to take them to the High Court in 2013 to produce their documents, only to have the case thrown out as “vexatious and an abuse of process”.
There are other MPs and senators in the current parliament who’ve been under Section 44 scrutiny and featured in reports into change. But they’ve done nothing about it.
Another recent warnings came in March 2004, via a Parliamentary Library “E-Brief” after Northern Territory senator Nigel Scullion – the Turnbull government’s current Minister for Indigenous Affairs – faced a spot of bother over a potential breach of section 44(v.) of the Constitution. That section relates any “direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth”. It’s the part that ultimately cost Family First’s Bob Day, from South Australia, his senate job in a High Court ruling earlier this year. (Although Day resigned before that anyway, after his building business collapsed.)
The Parliamentary Library wrote the 2004 paper to outline “how section 44 of the Constitution works and why cases like that of Senator Scullion seem to arise so regularly“.
Even the time it took for parliament to deal with the issue back then is telling. It makes the unraveling farce of the last five months – and the plan that all MPs and Senators disclose their status by December 1 – look like light speed action by comparison.
Scullion originally wrote to the Senate President in May 2002 about his concerns.
“The Senate however has proven reluctant to deal with the case. It took 16 months for the Senate even to decide to seek external legal advice,” then 2004 E-Brief recounts.
“It was another five months before the legal advice was tabled in the Senate, which concluded that Senator Scullion had avoided breaching section 44. As Senator Ray remarked on the day the advice was tabled, this may have been a matter of some good luck on Senator Scullion’s part.”
Trawling through the Parliamentary library, the current carnage for the government and MPs of all persuasions begins to look like the result of willful negligence.
From 25 years ago – 25 years ago! – here’s the 1992 Parliamentary Library Background Paper no. 29: Dual citizenship, foreign allegiance and s. 44(i) of the Australian Constitution.
But any MP looking for some weekend reading should drag out No. 36 in the Papers on Parliament, by John Kalokerinos.
His June 2001 work is titled “Who May Sit? An Examination of the Parliamentary Disqualification Provisions of the Commonwealth Constitution“.
If you’re John Alexander or Barnaby Joyce, busy campaigning in a by-election to get your old job back because you’d forgotten/didn’t bother checking regarding your overseas born dad, here’s the short version of what Kalokerinos had to say:
I conclude that the existing disqualifications are deficient. Indeed, s 44 was labelled ‘vestigial’ by Barwick CJ.
The provisions are anachronistic and inequitable, and should be deleted, or replaced with legislative provisions which are less rigid, and capable of being updated by the Parliament as and when appropriate.
The Barwick he refers to is the legendary High Court Chief Justice, Sir Garfield Barwick, in a 1975 case involving a Country Party (now Nationals) senator James Webster, hauled before the Court over s.44(v) – the same section that snared Day in this parliament. Incidentally, Malcolm Turnbull’s father-in-law, Tom Hughes, represented the government.
Kalokerinos notes that Barwick “exonerated Senator Webster through an adroit use of technical principles of contract, and a narrow interpretation of the Constitution. Accordingly, the decision has been subjected to significant and valid criticism.”
But his point is unwavering, the rules are anachronistic, unjust and need to be changed.
He sounds a clear warning, saying “because of the difficulty of constitutional change in Australia, the disqualifications should not be contained in the Constitution, which entrenches ‘archaic language devised in circumstances that prevailed a century ago’.”
Kalokerinos cites the 1992 case Sykes v Cleary, which came to the fore again recently, as well. That involved three candidates in one seat ruled ineligible saying it raised the question “whether this rate of disqualification is extraordinary or simply demonstrative of the pressing need for reform of s 44”.
There are other cases, including in 1999, and various earlier parliamentary reports, including 1997’s House of Representatives review into “Aspects of Section 44 of the Australian Constitution”, which concluded “Legislative protections are more ‘flexible and equitable’, and can be amended to deal with new dangers as they emerge”.
Then there’s the 1981 Senate Committee report, in which Kalokerinos highlights “in arguing the impropriety of constitutional disqualifications [Professor Geoffrey Sawer] noted that disqualifications are by their nature technical, and must be flexible to deal with social and economic change and to remain relevant.”
So 16 years ago, Kalokerinos was warning politicians to act before it was too late, saying (emphasis added):
Despite the unsuccessful record of constitutional reform in Australia, such a proposal would have real prospects of success when its bipartisan nature is recognised, and particularly if put as part of a broader program to update the Constitution.
Significant constitutional reform is needed to produce a disqualification provision more appropriate to parliamentary democracy in Australia in the 21st century.
Reading through all these reports, who can’t help wondering how many dead canaries politicians need in the coalmine before they start to believe there might be a problem.
Another warning was sounded in 1999, for example, when One Nation attempted to exploit Section 44 and senator Len Harris challenged the right of 30 MPs and senators to sit in Parliament because they were born overseas. He ended up in the Senate in September of that year because his colleague Heather Hill, elected the previous year, was tossed out because the naturalised Australian had failed to renounce her British citizenship.
Kalokerinos concludes his analysis saying “Section 44 goes to the heart of Australian representative democracy” and limits the choices of Australian voters to the extent that it conflicts with the notion of representative democracy.
Yes this issue will drag on for at least a few more weeks. Only today the government announced it was extending the deadline, from December 1 to 4, for when MPs have to disclose their citizenship status. It has postponed sittings in the House of Representatives next week over the issue, as well as same-sex marriage, which gives the impression that after a five-week break, there’s no more important legislation for the nation to consider than their own eligibility for parliament.
Turnbull’s handling of this matter has been embarrassing, from his initial gloating over the misfortune of the Greens to wrongly declaring Joyce would be cleared by the High Court. His resistance to an audit, like it’s too much trouble to check politicians actually complied with the legal documents they signed – at risk of criminal penalties, including jail time – adds to the sense that politicians were doing their best to avoid scrutiny.
How can the government demand compliance from banks, unions, multinational companies, taxpayers and welfare recipients, when it’s so cavalier about MPs complying with the Constitution?
As it clings to power, the government now looks like it didn’t just sit on its hands, but may have tried to keep a lid on the whole thing, especially when former senate president Stephen Parry’s reputation was sullied because he was told to keep quiet when he flagged with a senior colleague that he might be a dual citizen.
Changing the Constitution requires a referendum, but as we saw last week, Australian voters know what’s right if Parliament has the courage to ask them.
Once again it’s up to politicians to decide if they’re brave enough to allow us to make that choice.
* This is an opinion piece.
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