How people elect parliaments
Australia’s constitutional limits on who can be a candidate for election have struck again, causing one of the more experienced of the Greens Senators to give up his seat in the Senate.
Scott Ludlam, hitherto a Greens Senator elected by the voters of Western Australia three times since 2007, surprised the nation today by revealing that he had recently been advised he was still also a citizen of New Zealand.
Ludlum was born in New Zealand in 1970, but his family moved to Australia and he was naturalized – becoming an Australian citizen – at the age of 9 in 1979.
He and his family appear to have understood that the law at the time meant they ceased to be New Zealand citizens. New Zealand law, however, quietly allows for individuals to retain their citizenship.
More importantly, the interpretation of the Australian Constitution by the High Court [in the judgement in Sykes v Cleary, 1992] is stricter, requiring any dual citizens to have taken active, reasonable steps to renounce any foreign citizenships before becoming eligible to run for election to the Senate or the House of Representatives. (Some foreign nations do not allow citizenship to be abandoned, so the Australian ruling accommodates such cases).
The Ludlum situation comes after the High Court ruled in two recent cases that other senators elected in July 2016 – Senator for South Australia Bob Day (Family First party), and Senator for West Australia Rod Culleton (One Nation party) – were ineligible to hold office.
The two senators were ineligible by reason of financial relationships with a government agency, and being subject to a minor criminal sentence, respectively. Their seats were filled by replacement candidates from the same parties after a count back under the Senate’s single transferable vote (STV) voting system.
Ludlum’s seat will now be filled the same way, by a recount of the 2016 ballots as if Ludlum’s name was not present. The replacement senator will almost certainly be from the Green party.
After the last election the 12 senators from each state were divided by a Senate resolution into two classes with different term lengths. Ludlum was among those who received a longer six-year term. The Senate will probably now need to pass a resolution determining whether the new senator will leapfrog their more senior party colleague and serve out the remainder of Ludlum’s longer term.
Bob Day also goes down in electoral history for unsuccessfully challenging new laws enacted in 2016 which freed up the way Australians fill out their Senate ballot papers, removing a significant degree of party control over the way preferences are recorded.
Current Government junior minister Dr David Gillespie, the Member for the House of Representatives division of Lyne on the New South Wales north coast, has also recently been challenged on the basis that he is the landlord of a shopping strip in which one tenant holds a franchise contract with the commonwealth government postal service, Australia Post.
All these cases raise issues with whether the Australian people fully enjoy the freedom to choose who they want as their parliamentary representatives.
The Day case was both complex and novel, and set down important precedents. The Senator had been coy in relation to how the lease arrangements in question were established, and who held interests in them. But to say that that the situation involved either subjugation of the Senator to political direction by the commonwealth government, or an interest in financial gain that would have warped Day’s votes in the Senate, is more than a stretch.
Day was a highly controversial senator from a distinctive minor party, and he was twice elected – even if only narrowly – by the voters of South Australia.
Cullerton’s embarrassing minor offences related to a dispute over a leased car and a struggle over possession of the car keys. While the voters of Western Australia were not appraised of the facts when they elected him, he was also the lead candidate for a distinctive political party whom the voters deliberately chose to send to Canberra.
In Montana recently a candidate for election to the United States Congress physically assaulted a journalist in full view of startled witnesses, with no impact on his legal eligibility; he won the election two days later.
Dr Gillespie, the challenged House member whose case has yet to be heard, may be caught by similarities with the recent Day precedent. But to argue that as a representative of the people he will be in thrall to Australia Post – hardly known as a menacing political player – or the Department of Communications, because of their leverage over him (which is nil) is ridiculous.
Alternatively, to argue that Gillespie has a prospect of financial gain because a shopfront Australia Post franchise contract – not the most lucrative business proposition in Australia – is held by just one of the tenants in the shopping strip he has invested in, presumably by allowing him to gauge rental increases out of the tenant’s excess profits soon to flow from the political decisions of Parliament which Gillespie will now contribute to, is even less plausible.
Ludlum, after 11 years of Senate service, was his party’s deputy leader and a notable contributor on key public issues such as communications policy. To argue that the deliberations of Parliament were at risk because he owed a nefarious international allegiance to that threatening foreign power New Zealand – New Zealand! – is also risible. [Yet the High Court held just that in Free v Kelly, 1996. Ironically, New Zealand is still listed in the initial sections of the Australian Constitution as eligible to have joined the Australian Commonwealth in 1900.]
Australia has an unusually restrictive approach to the role of dual citizenship in elections. The UK, Canada and New Zealand are less demanding.
The Courts must, and should, interpret and apply the existing constitutional provisions strictly and consistently, but the public policy issue arising from all four of these cases is not that these parliamentarians are guilty of significant political wrongdoing or have conflicts of interest, but more that the free choice of Australians in electing their representatives is being needlessly undermined.
These cases are spread across the partisan divide; there is no one-sided political angle here. All parties will be prone to surprises of this kind.
Moreover, the wider and future impact of these cases need to be considered.
While one response might be ever greater degrees of checking by candidates and parties on their personal status and business interests, another might be that political games will start to be played, potentially causing actual leverage over serving politicians, or leading to impacts on the composition of the parliament.
Perhaps it is time Australia reviewed the relevant eligibility clauses and considered making some sensible constitutional amendments.
UPDATE – 18 July
Within two days, a second Senator – Queensland’s Larissa Waters, also from the Greens party – has announced her resignation for near-identical reasons to those given Ludlum. Waters’ family emigrated from Canada when she was one year old, and she had believed that any Canadian citizenship was discontinued decades ago.
Further information on these cases can be found in extensive coverage in the Australian media. Waters’ case does not seem to raise additional legal angles to the Ludlum case. Obviously, all Australian politicians born overseas will be spending these days urgently checking on their past and present status.
Waters’ replacement seems to be clear from the results of the election in July 2016. Her party’s second-placed candidate was Andrew Bartlett. Interestingly, Bartlett has already served a decade in the Senate, having represented Queensland for the Australian Democrats from 1997 to 2008, eventually as Leader of that party.
(post title image: The Guardian)
So I wonder if the stuff-up happened this way.
(A)–Old section 17 of the Australian Citizenship Act 1948 (Cth) used to terminate Oz citizenship if you acquired another.
Adult Australian citizens acquiring another citizenship
Between 26 January 1949 and 3 April 2002, an adult Australian generally lost Australian citizenship automatically (section 17 of the Australian Citizenship Act 1948) upon acquisition of another citizenship by a ‘voluntary and formal act’, with the following rules:
-the age of majority in this respect was 21 until 30 November 1973, and 18 thereafter,
-before 22 November 1984, Australian citizenship was not lost if the acquisition of another citizenship took place while the person was inside Australia,
-from 22 November 1984, the incidental acquisition of another citizenship as the result of another activity (such as an application for a foreign passport, or foreign residence) did not cause loss of Australian citizenship,
-loss of Australian citizenship still occurred even if no oath of allegiance was taken to the other country,
-loss of Australian citizenship occurred even if the Queen was also Head of State of the other country (i.e. a Commonwealth realm such as Canada, New Zealand or the United Kingdom),
-it was not relevant whether the acquisition of another citizenship was reported to the Australian authorities.
Section 17 of the 1948 Act was repealed with effect from 4 April 2002.
(B)– Ludlam was naturalised as an Aussie when he was nine.
(C) — He always assumed NZ was the same in reverse (or that his parents renounced NZ citizenship for him).
(D) — NZ law, in fact, not the same:
New Zealand has permitted dual or multiple citizenship since the creation of New Zealand citizenship on 1 January 1949, although dual citizens who actively acquired or exercised their other citizenship could lose their New Zealand citizenship if their continued citizenship was judged “not conducive to the public good”. The modern wording is similar; dual citizens may lose New Zealand citizenship by acting “in a manner that is contrary to the interests of New Zealand”. A New Zealand citizen who holds another citizenship may renounce their New Zealand citizenship (see below), although this may not be registered if they reside in New Zealand or the country is at war.
Whether one agrees or disagrees with s44(i), it’s the law, and short of a referendum, one has to assume that one way or another it will be enforced, not least because of the right of common informers to take action. So the question then becomes how best to avoid this sort of nonsense blowing up well into a parliamentary term and potentially causing all sorts of confusion (such as the point I raised quite some time back, and Antony Green has elaborated on his blog tonight, about the potential impact on the allocation of short and long terms in WA).
I proposed to the JSCEM last year that candidates born overseas should be required to lodge with their nominations a statement setting out why they weren’t disqualified under s44(i) by virtue of having citizenship of their countries of birth. My submissions on this point are here: http://www.aph.gov.au/DocumentStore.ashx?id=4c7ac06f-41c1-426a-b3ef-619ad26dcabc&subId=414724 and http://www.aph.gov.au/DocumentStore.ashx?id=4a63e30d-6490-4cef-bad8-fcc246b7767e&subId=414724. As they note, a clear benefit of such a requirement would be that candidates inclined to treat the issue in a perhaps offhand or cavalier manner might, if forced to focus on producing a considered document, come to realise a bit earlier than Mr Ludlum did that they have a problem.
On your broader point about constraints on electors’ freedom of choice, I would question the broader proposition that it can be left entirely up to the voters to decide who should represent them. The problem with that is that a bad choice by the voters has implications beyond their own constituency: if, for example, they decide to elect a crook or a lunatic (as has happened in the USA), that affects the entire system of government, not just the little patch that voted for him or her. So I’ve always thought it reasonable that some basic qualifications should be spelt out in the Constitution. Whether the ones in s44 are the right ones for the modern era is, of course, a different question.