Malcolm Turnbull's 'new rules' on citizenship for MPs are just the old rules, rehashed

Malcolm Turnbull. Photo: Getty Images
  • The citizenship crisis consuming the Australian government is likely to continue for some time, as still more MPs face questions about their status.
  • Prime Minister Malcolm Turnbull announced parliamentary disclosure requirements for MPs, but these are just an extension of the existing requirements.
  • Politicians’ hubris on this has been astonishing, especially as they like to remind people about the importance of complying with the law.

SYDNEY — The controversy over MPs being dual citizens in breach of the Australian Constitution is not going away, especially after former Senate president Stephen Parry resigned suddenly last week, and it subsequently emerged that he’d told communications minister Mitch Fifield about his concerns weeks ago.

Parry waited until after the High Court ruled that Nationals leader and deputy prime minister Barnaby Joyce, Nationals senator Fiona Nash and One Nation’s Malcolm Roberts, along with two former Greens senators, were ineligible to stand at the 2016 federal election because they were dual citizens, before he checked his status with the British Home Office.

Two days later, Parry was gone, the sixth MP in breach of the Constitution, a revelation that came after 13 years in federal politics.

Fitting with his now-customary pattern of tending to laughably understate the scale of the government’s various challenges, Turnbull said he was “disappointed” Parry had not raised the matter earlier.

Turnbull’s approach to dual citizenship, which has now simmered away since July, has bristled with hubris, as if he believes he’s once again the gun young lawyer who defeated British might in the High Court’s Spycatcher case 30 years ago.

The Greens were guilty of “incredible sloppiness” and “extraordinary negligence”, Turnbull declared as they resigned and left parliament before he found three of his Coalition colleagues embroiled in the issue. A little while later, after the deputy PM’s dual citizenship with New Zealand emerged, Turnbull said in Parliament that Joyce was “qualified to sit in the house and the High Court will so hold”.

The Full Bench of the High Court concluded otherwise and Turnbull lost two of his ministers – and now a third in Parry.

On Monday afternoon it emerged that yet another government MP, John Alexander, who holds the lower house seat of Bennelong, may also be a dual citizen. Alexander’s margin is razor-thin in the seat and it is highly possible that he could lose his seat in a by-election.

Turnbull has resisted calls for an audit of current MPs and today announced that from the next election, most likely in 2019, MPs will have to sign a disclosure that they’re not a dual citizens.

They already do under Australian law – repeatedly over the years at every election in the case of Joyce, Nash and some of the others.

Under the new, improved Turnbull plan, which looks pretty much like the existing rules, all MPs and senators must provide a declaration of their citizenship and details of any former and renounced citizenship within 21 days of election.

“Most members, as you would imagine, in the future would fill this in after they become elected and have no need to look at it again,” Turnbull said.

This is all about “personal responsibility,” he added.

“This is not an audit. The obligation is on each member and each senator to make a full disclosure as I have repeatedly said in recent times.”

Last week, while travelling overseas, Turnbull said this in rejecting the idea of an audit of current MPs: “I mean what is an audit? Does that mean that somebody is going to undertake extensive genealogical research on every member of Parliament and Senator? Undertake extensive research into foreign laws?”

For a government that’s championed compliance on so many fronts in the past year, be it for banks and their executives, unions, foreign investors, welfare recipients, or just humble taxpayers, it’s astonishing how easily it’s prepared to give a cavalier, two-fingered salute to the Constitution.

As for others potentially in trouble now, well, that personal responsibility means it’s up to them to fall on their sword. Turnbull made it clear he’s not going to go looking for problems.

“There may well be a number of line-ball cases and it may be that they end up in the High Court,” he said.

“It may well give rise to more cases, we don’t know, lets not jump ahead of ourselves.

“People may come to the conclusion that they are not eligible and they may choose to resign.”

Turnbull’s announcement is comedy worthy of Yes Minister. His solution is to delay the current problem until the next election and ask aspiring politicians to do a better job at complying with the existing rules.

To reinforce how today’s announcement is about restating the bleeding obvious, here’s what Turnbull said back in July when the Greens resigned.

“You know, when you nominate for parliament, there is actually a question. You’ve got to address that Section 44 question, you’ve got to tick the box and confirm that you’re not a citizen of another country. So, it is … it’s extraordinary negligence on their part.”

One of the government’s rising stars, Senator James Paterson, helpfully chimed in too:

Source: Twitter

Barnaby Joyce and several others just went to the High Court last month with Government lawyers pleading their ignorance of their origins as their defence.

The Commonwealth’s submission on behalf of Attorney-General George Brandis to the court said, in part “where a person has no knowledge that they are, or ever were, a foreign citizen, the requirement to take ‘all reasonable steps’ to renounce that foreign citizenship does not require the person to take any steps. Taking no steps is reasonable in these circumstances.”

Assuming that the Turnbull government still believes this was a valid point, then you’d have to assume the “I didn’t know my dad was a New Zealander/British/etc, which made me one too” would be the get of jail free card for any MP subsequently caught out.

So back to what the PM once called “extraordinary negligence”.

All would-be MPs are already given a special “Candidate’s Handbook”, explaining what they need to do to apply for a job worth at least $200,000 a year (in the Senate, it’s essentially a $1.2 million job over six years, or two terms).

That handbook is abundantly clear on dual citizenship.

The AEC even has a special page on its website to specifically deal with the issue of nominations and the Constitution.

It says, in part, this about the Commonwealth Electoral Act 1918:

9. Part XIV of the Act governs the process of nomination, and in particular subsection 170(1) provides the following:

A nomination is not valid unless, in the nomination paper, the person nominated:

a. consents to act if elected, and
b. declares that:

  • i. the person is qualified under the Constitution and the laws of the Commonwealth to be elected as a Senator or a member of the House of Representatives, as the case may be; and
  • ii. the person is not, and does not intend to be, a candidate in any other election to be held on the same day as the election to which the nomination relates; and
  • c. states whether the person is an Australian citizen by reason of birth in Australia or other means and provides:

  • i. in the case of citizenship by birth in Australia – the date and place of birth; or
  • ii. in the case of citizenship by any other means – particulars of those means.
  • Could the AEC make it any simpler or clearer?

    Under the Turnbull plan, a failure to disclose your citizenship status, or providing false documents, could put to you in contempt of Parliament. That sounds scary, except the AEC has this to say about false or misleading statements when it comes to nominations:

    11. Division 137 of the Criminal Code Act 1995 (Cth) (the Criminal Code) makes it an offence to provide false or misleading information or documents in purported compliance with a law of the Commonwealth, with a maximum penalty of 12 months imprisonment.

    But there’s no suggestion that Barnaby Joyce, who is now seeking get his old job back in a by-election, should be facing charges, even though politicians are fond of reminding citizens that ignorance is no excuse in the eyes of the law.

    And because Joyce didn’t bother to properly check the consequences of having a New Zealand-born father at any stage during 11 years in Parliament, 102,000 people will have to give up part of their Saturday on December 2 as he tries to get his old job back. If they fail to vote, they face being fined.

    Australian taxpayers will pick up the tab for Joyce’s “mistake”, just as they’ll reimburse him for a large proportion of his campaign expenses.

    Also not facing charges is former One Nation senator Malcolm Roberts, who didn’t officially renounce his British citizenship until December last year after several months in parliament, and is now standing in the Queensland state election later this month. And that’s despite the fact that during his hearing in the High Court, Roberts’ counsel, Robert Newlinds, said his client “didn’t believe he was [a British citizen] but suspected he might be when he nominated to be a senator”.

    So MPs must be terrified of the prospect of facing contempt charges, judged by their peers in politics. On the upside, no one who’s ever faced the Privileges Committee on contempt has ever been punished more severely than a warning.

    A few years ago, former Australian treasurer Joe Hockey – now ambassador to the US – divided the nation into lifters and leaners in a speech titled “The end of the age of entitlement”.

    For the last few months, Australian taxpayers have seen nothing but entitlement from people in Canberra, who keep sending the bill for their incompetence to lifters paying tax. Now, people who normally rush to defend the Constitution and resist any changes are suddenly backing a horse called self interest and are floating the idea of changes to stop any more MPs falling foul of this section of the Constitution.

    Outgoing Wesfarmers CEO Richard Goyder last week described Senate President Stephen Parry’s resignation because he is a dual UK-Australian citizen, which only emerged after the whole High Court case, as “almost the straw that broke the camel’s back”.

    To extend the metaphor, Turnbull offered the vision of an oasis, far off in the distance where all the government’s problems will one day be solved.

    * This is an opinion column.

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