How people elect parliaments
Australia’s constitutional rules relating to eligibility for parliamentary election are wreaking havoc across the current Parliament.
Two senators have already resigned, and three more parliamentarians have been referred to the High Court for adjudication of their status.
Another two senators, including a key crossbench independent, have hurled themselves voluntarily onto the judicial pyre, and over twenty other members of Parliament are having to prove their status to continue serving.
One of the court-referred MPs is Deputy Prime Minister Barnaby Joyce, endangering the current Liberal-National Coalition Government’s one-seat majority on the floor of the House of Representatives.
The sittings of Parliament last week were reduced to farcical scenes as more facts kept emerging, and the Government and various parliamentarians struggled to respond.
(Alex Ellinghausen’s excellent photo of Prime Minister Malcolm Turnbull (foreground) and his legally embattled deputy Barnaby Joyce (rear) summed up the events on the floor of the House of Representatives last week; Huffington Post)
Australia’s Constitution, drafted at the end of the 19th century, makes clear that election candidates with dual citizenships or other foreign allegiances are ineligible to be elected to the national House of Representatives or the Senate.
But Australia’s history as an immigrant nation, together with that fact that many nations adopted broad definitions of entitlement to citizenship during the somewhat less Westphalian age of the mid-late 20th century, has created a significant challenge for the selection of parliamentarians.
According to the Australian Bureau of Statistics, around 49% of all Australians are either born overseas or have at least one parent who was.
The nation’s High Court has previously ruled that those nominating for election to the national Parliament must renounce any dual citizenships. In recent weeks it has become clear that not all have effectively done so.
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The Court held in 1907 (Blundell v Vardon) and in 1992 (Sykes v Cleary) that the eligibility rules are to be strictly interpreted. If a candidate was not eligible, then they were never validly elected, even if they have sat in Parliament for a time before the issue was discovered.
In 1999 (Sue v Hill) the Court also confirmed that continuing dual citizenships are an absolute bar to eligibility. Such citizenships can, however, be renounced by candidates, and the Court allowed reasonable flexibility for those with citizenships from countries which do not provide for renunciation, or where doing so is difficult.
The most common dual citizenships for Australian parliamentarians are with Great Britain or New Zealand, both of which allow fairly easy citizenship renunciation. That suggests that failure of candidates to check and act will receive little judicial sympathy.
But these nations also have fairly broad rules about citizenship by descent, that is, overseas laws which confer citizenship automatically on the children of citizens.
The Court now faces the new question of how far the possession of citizenship by descent, or perhaps the entitlement by descent to take up a foreign citizenship, applies to Australians who were born in Australia and have little or no personal connection with their parent’s country of origin.
Constitutional expert Professor George Williams points out that the text of the national Constitution does not hint at any distinction based on the descent argument. The Court will need to set aside strict black-letter legal interpretation and parse the language of the Constitution if these parliamentarians are to survive the challenge. There are precedents for such judicial approaches – including in the earlier rulings on this subject – but another possibility is for the Court to take a strict line and hold that only amendments to the Constitution would alter the situation.
While the current political turmoil mostly turns on carelessness by election candidates in getting their citizenship status clarified prior to nominating for election, the issue also raises deeper questions of whom the Australian voters are entitled to select as their representatives.
The sense of disorder surrounding the Australian Government and Parliament also looks set to drag on for months.
The rapidly spreading controversy began five weeks ago when New-Zealand-born Senator for Western Australia Scott Ludlum (Greens party) discovered that, despite becoming an Australian citizen at age nine, his NZ citizenship never lapsed after his family migrated to Australia when he was three years old. Ludlum promptly resigned from the Senate
The wildfire soon began to spread, and so far has consumed:
What has caught out the several parliamentarians involved in this controversy is that they were unaware of the other citizenships acquired through their parents, and thus took no steps to repudiate them. Their legal advice all seems to be that ignorance of the facts, as much as ignorance of the law – including ignorance of any new-found interpretation of the law – will prove to be no excuse.
The process for adjudication
The Australian Constitution originally allotted the adjudication of eligibility disputes to the two house of Parliament themselves. However in 1902 Parliament exercised a constitutional option to legislate for an alternative method, creating a special Court and process for addressing disputed election returns, and conferring the task to the nation’s High Court (also established in 1902).
Under the present electoral law each of the Australian houses of Parliament may refer their own members to the High Court (sitting for these purposes as the Court of Disputed Returns) for examination of any eligibility disputes.
Members and Senators may in practice also initiate a judicial examination themselves, and in addition individual citizens may also bring a challenge to the eligibility of any Member or Senator.
The cases of Senators Ludlum, Waters, Roberts and Canavan, and House member Joyce, have in the past week been formally referred to the Court. Senators Nash and Xenophon have declared that they will self-refer, or accept a Senate referral when Parliament next meets in a fortnight.
The complex legal processes will begin in the next few days, with the Court working to corral the legal teams for the several litigants, set submission and hearing dates, and give directions about the conduct of the litigation. (In the weeks ahead case documents will appear here.)
Attorney-General George Brandis has speculated that the Court’s main hearings will not occur until October. Professor Williams is even less sanguine, speculating that the matter may not be resolved until the end of the year.
In recent days the Senate has been careful to avoid partisanship in the resolutions for eligibility referrals, but there is speculation that in the House the embattled Government will attempt to refer additional overseas-born or -parented Opposition Labor Party members, but not its own vulnerable members. Such a tactic would not, however, prevent all challenged cases eventually reaching the Court by one means or another, and may only add to the present political furore.
Parliament cannot directly fix the problem, because it cannot itself make laws that would prevail over the High Court’s constitutional interpretation of the eligibility rules.
But hypothetically, Parliament could legislate anew to create a different adjudication process, including by letting the matter revert to determination by each house. The houses could then simply determine the eligibility of afflicted members without using any specific standard, relying on the rule that the proceedings of Parliament cannot be questioned.
Sidestepping the century-old, non-partisan judicial process would, however, be an enormously controversial move.
Replacing any parliamentary vacancies
In the case of Senators ousted for reasons of ineligibility, Australian electoral law includes a procedure for re-counting the ballots – cast under a form of the single-transferable vote electoral system – as if the invalid candidates had not appeared on the ballot.
Australian electoral authorities preserve the ballot papers in case of such disputes, and in any event modern vote data is now digitized during post-election ballot counting, so determining the replacement senators should not actually consume much time or cost.
In all recent cases recounts have resulted in another candidate of the same political party taking an ousted senator’s seat, maintaining the partisan balance of the chamber.
The results of the July 2016 election have already seen one senator ousted in each of the states of South Australia and Western Australia (on grounds other than the citizenship issue). Recounts of the ballots were conducted to find the two replacement senators.
If all the current challenged senators are found not to have been validly elected, the 2016 Senate ballots for each of Western Australia and South Australia will need to be reexamined a second time, which is itself a novel occurance.
More dramatically, if up to 3 of the 12 senators for Queensland are invalidated together, an unprecedented multi-candidate recount will be performed.
The Court will no doubt try to declare all the Queensland challenge outcomes simultaneously, to prevent the unhelpful prospect of recounting the ballots more than once.
While replacement by other candidates of the same political party is the highly likely result in each case, the very slight risk of the recount disturbing the election of any of the other nine sitting senators may become a concern.
One minor partisan difficulty is that in Queensland and New South Wales the Coalition partners the Liberal and National parties rank the places on their ballot order so as to deliberately distribute the outcomes between their two parties. Unfortunately for the National Party, the invalidation of their two challenged senators may see their places taken by Liberal Party candidates, leading to inter-party tensions. (The two parties are now formally merged in Queensland, but internally candidates still self-identify in terms of one of the two previous factions.)
Elections for members of the House of Representatives – which are held using preferential voting in single-member electoral divisions – follow a different path. If an election is invalidated, a by-election must be held to fill the seat.
The political wildfire of the current dual citizenship controversy would be dramatic at any time, but the present shambles actually threatens to destabilise the political makeup of the Parliament.
Since the fiasco has its practical origins in the failure of individual candidates – and their party administrations – to thoroughly scrutinize their candidate backgrounds and take steps to renounce other citizenships, the affair reflects poorly on the Greens and National party organisations. The Greens have, however, been the only affected senators to voluntarily resign.
The Opposition Labor Party remains unaffected by the crisis so far, claiming that their thorough candidate checking processes ensure that any dual citizenships are repudiated. The Liberal Party has also so far suffered no specific losses, but is impacted by the troubles facing their National partners.
But whatever the relative quality of the party candidate-checking systems, the fact remains that several Government and Opposition MPs remain under clouds of at least partial legal suspicion.
In the Senate, vacancies should be filled with replacements within a few weeks of any Court declaration. However as the partisan balance of the chamber is complex, and includes a diverse 11-member crossbench in addition to the senators of the major parties (the governing Liberal-National Coalition and the Opposition Labor Party) and the Greens. Temporary absences, if not suitably paired according to parliamentary conventions, could affect the passage of legislation and resolutions.
In the House of Representatives, where the Government is formed, the situation is also tense. The Liberal-National Coalition barely survived the July 2016 election, winning 76 of the 150 seats. One government seat must be given up to the position of Speaker of the House.
The Opposition holds 69 seats, and a five-member crossbench of independents and minor party MPs has in the past week expressed significant dissatisfaction with the administration.
If the Government were to lose any by-election in the Deputy Prime Minister’s electoral division, it would slip into minority status.
Any more by-elections could put the administration seriously at risk. At present it remains unclear if any other House members will be affected. Several known to have overseas-born parents are under severe scrutiny.
The Government, already troubled by poor polls, limited legislative achievements and an ongoing fiasco over the question of legislating for marriage equality, has in the past week taken on a rather desperate appearance.
The junior Coalition member the National Party, based in Australia’s eastern state rural and regional areas, have now seen three of their five Cabinet ministers dragged into the morass. Only one of the three has stepped aside from Cabinet, triggering an additional political dispute. As mentioned above, the Nationals also face the unpleasant prospect of the party losing Senate positions to their partners, the Liberals.
The impending ruling against the Deputy Prime Minister is a particular worry. Joyce won his New England electoral division with 58% of the preferential vote in 2016, and would most likely win again in a fresh election (after repudiating his descent-based New Zealand citizenship), but a rematch with high-profile former independent MP Tony Winsdor would be a distraction the Government hardly needs.
Even a prompt ruling from the Court might not allow a by-election for the division of New England – should it become necessary – to occur before the end of 2017. In that basis, the sense of uncertainty surrounding the Government’s parliamentary majority could continue until February 2018.
Impact on legality of ministerial actions
One final legal headache has emerged regarding the three (so far) affected ministers. The Australian Constitution states that no person can hold office as a minister for more than three months without being a member of Parliament.
If ministers Joyce, Nash and Canavan were not validly elected MPs, then logically they were not validly appointed ministers beyond their initial three months of service, bringing into doubt the legal validity of all their many executive decisions and actions.
As a result, a multitude of ministerial decisions made since either December 2013 (dating from when the senior two first became government ministers) or alternatively from October 2016 (dating from the most recent formation of a new ministry, which is also when Canavan was added to the ministry) may now all be entirely invalid.
In principle such legal defects could be re-validated by legislation, if the Parliament agrees on enacting such laws.
Moreover, according to prominent constitutional scholar Anne Twomey ordinary individuals and businesses would be protected from legal damage under the common law.
But the ministries in question – resources, agriculture, water resources, regional development and others – all involve ministerial decisions relating to extensive and valuable resources, in which major corporations and interests are concerned. Approvals relating to major mining proposals, for example, may be brought into legal doubt.
The potential for legal mischief and disarray is far from trivial.