On Elections

How people elect parliaments

Dual foreign citizens ousted from Australian Parliament

Australian voters cannot elect candidates with inherited dual citizenship to their national Parliament, the nation’s High Court has ruled, despite nearly half of the nation’s people having – or being entitled to have – such dual nationalities.

The Court’s decision finalises a roiling political dispute over the status of seven members of Parliament who were alleged to hold such dual citizenships without their knowledge when they nominated for the most recent elections in 2016.

The seven had various combinations of inheriting citizenships from a parent or grandparent, been born overseas to Australian parents, or migrated to Australia as children.

The Court has chosen to maintain a strict interpretation of the constitution law, effectively requiring candidates for election to ensure that they have discovered and terminated any foreign citizenships before running for election.

The disputed second citizenships included links to New Zealand, the United Kingdom, Canada and Italy, all of which are quite common among Australian citizens.

The Court’s ruling has the immediate effect of removing from office four sitting Senators and also one member of the House of Representatives.

The ousted House member was in fact Australia’s Deputy Prime Minister, Barnaby Joyce. His removal leaves the current Liberal-National government with a half-seat majority of just 75 of 149 members. With one other member of the coalition presiding over the House as Speaker, the Australian government has temporarily lost its majority in votes taken on the floor of the House.

The seats of the ousted senators will be replaced by a recount of the ballots from last year’s election. In three cases substitute candidates from the same political party are certain to be found to have been elected in their place. In a fourth case, where the Liberal and National parties (which operate as a coalition) had nominated a joint ticket in the state of New South Wales, the seat appears certain to pass from the National party to the Liberal party, causing some tensions within the coalition.

The House place held by Joyce, for the electoral division of New England, will be filled at a by-election, probably to occur in early December. Joyce has a fairly good probability of being elected successfully this time, once he has effectively renounced the New Zealand citizenship he inherited from his father.

Like almost all nations, Australian electoral law requires that only citizens can be elected to the national parliament.

As a legal concept, Australian citizenship only dates from the 1970s. Prior to that, the underlying constitutional requirement for voting (and nominating as a candidate for election) was that people be ‘subjects’ of the crown.

But the nation’s Constitution also places a requirement on election candidates that they must not also be citizens of any other nation. The Australian rule is stricter than other comparable nations.

A previous High Court ruling held that if intending candidates for election to the Parliament have such dual nationalities, they must take steps to renounce all non-Australian nationalities for their election to be valid.

Australia is a nation with a high immigrant character, and it is estimated that as much as 49% of the population has, or is entitled to take up, other nationalities as well as being Australians.

The constitutional rule therefore operates as a major limitation on voter choice, since voters cannot choose such people as their parliamentary representatives, even if they are attractive candidates.

Of the five members of Parliament ousted by today’s ruling, one (Barnaby Joyce) was the undisputed choice of the voters in the New England single-member electoral division for the House of Representatives.

Two of the ousted senators (Scott Ludlam and Larissa Waters, both from the Greens party) were the lead candidates on their party’s list of nominees for their state in the 2016 elections.

Australian Senators are elected separately for each of the 8 states and territories, using the single transferable vote (STV) voting system.

Ludlum and Waters were clearly the preferred candidates among those voters supporting their party. In these cases the constitutional rule has worked to overrule the choice voters expressed in choosing their representative in the Senate.

Another ousted senator, New South Wales’ Fiona Nash, was listed third on her coalition’s joint list of candidates. Under the Senate electoral system’s ‘above-the-line’  (“ATL”) voting option – by which voters have the option to gift their vote to a party’s list order – Nash’s group won enough votes to secure five Senate positions.

Nash was placed third in the group’s listed order, and also happened to have the third most ‘below-the-line’ ordinary individual votes among the group’s candidates. As a sitting senator and the leading candidate in the coalition list for her National Party, it is reasonable to conclude that Nash was one of the preferred choices of the voters supporting her coalition list and her party.

But the coalition candidate who was second-most preferred by below-the-line voters among the Liberal-National group of candidates, Jim Molan, was placed much lower down the order of the list of nominees for the group, and did not win a seat in 2016.

The New South Wales coalition voters in 2016 overwhelmingly chose the above-the-line option to gift their vote to the party list order, with 1.5 million of the total of 1.6 million votes cast for the Liberal-National coalition or for its individual candidates being ATL-option ballots. So despite being more individually popular, Molan thus lost out to the party list order system, which was adopted in 1984.

The final ousted senator, Malcolm Roberts, was listed second among his One Nation party’s nominees in the state of Queensland, and was elected entirely on the strength of the ATL votes cast for the party.

Roberts won only 77 individual below-the-line votes, making him one of the least individually supported candidates ever to win an Australian Senate place.

The two final disputed sitting senators, Nick Xenophon and Matt Canavan, were not removed from office by the Court’s decision.

Xenophon was found to have inherited from his father a form of partial British overseas citizenship, not amounting to a full foreign citizenship.

Canavan had an Italian grandparent, and an examination of Italian law indicted that he probably did not hold Italian citizenship, and would have needed to take positive steps to acquire it.

Four of the five ousted members of Parliament were prominent figures. Joyce and Nash were respectively Leader and Deputy Leader of the National Party and senior Cabinet members. The departure of Deputy Prime Minister Joyce – while it may only be temporary – creates difficulties with the usual practices for acting arrangements when the Prime Minister travels overseas.

Ludlum and Waters were both well-regarded leading figures in the Greens party and will be missed, although their absence has been dealt with for a few months now, as they chose to resign when the doubts over their status emerged.

Lamentations over the departure of One Nation’s Malcolm Roberts will be more restrained.

Joyce, Nash and Canavan were all ministers in the current government, and the legal validity of official decisions they made while not validly sitting in Parliament will now come under legal question.


More reports:

Expert commentators critique the current constitutional rules: Citizenship Seven: What the High Court decision means for dual citizens (ABC, 28 October)

Prime Minister Malcolm Turnbull has indicated that the Government would refer the Court’s ruling to Parliament’s Joint Standing Committee on Electoral Matters. The JSCEM is Parliament’s multi-partisan forum for considering changes to electoral law and proposed changes to the Constitution.



3 comments on “Dual foreign citizens ousted from Australian Parliament

  1. Michael Moore
    October 28, 2017

    Hi Mal, I am not sure why you believe NSW Senate will be resolved by countback. I think that the convention of Parliamentary Appointment still applies as Section 15 of the Constitution has not been modified in that way – but rather requiring the same political party

    • Malcolm Baalman
      October 28, 2017

      Thanks Michael. In each of the cases of an ousted senator, the replacement senator is not determined by a ‘countback’ in the sense that that term is used in the ACT and Tasmanian STV systems, where countbacks using the original ballot papers are used to fill mid-term vacancies. Nor is this case an application of the national Senate’s process for filling mid-term vacancies according to the rules set out in section 15 of the Constitution. What actually happens here – as prescribed by the Electoral Act and by the past directions of the High Court in similar cases, is admittedly similar to a vacancy countback: the original ballots are recounted as if the removed candidate had not ever been validly nominated, with the numbered preferences skipping over that candidate. But there is no ‘vacancy’, strictly speaking. In effect, the Court is ordering that the ballots now be counted again as if they were determining the true result of the original election. This has happened a few times before, including the Bob Day and Rodney Cullerton cases from earlier this year.

      Two historical novelties with this outcome are (1) that the Queensland recount will involve the removal of two senators (Waters and Roberts), and (2) the Western Australian recount will actually be the second recount this term, with Cullerton was removed earlier this year after being disqualified for liability to a criminal conviction.

      In all these cases, the near certainty that the replacement winning candidate will be from the same party comes not from any rule, but simply because so many ballots (around 90% of the total) are ballots filled in above-the-line, which will certainly draw the next preferences to the next ordered candidate within each party. Indeed, if anyone has the time to examine them, the published counting sheets on the Electoral Commission’s website should allow all the replacement winners to be specifically identified.

      To note one final irony, it is technically possible that the recounts could lead the preference flows down a different chain of events that actually have the effect of electing a different outcome for the 11 other winning candidates. This syndrome occurred in the recount of the members of the Melbourne City Council after the 2016 election – the Caiafa case, from March this year – https://onelections.net/2017/03/15/removal-from-elected-office-takes-out-innocent-colleague/. But again, I am sure* if such a syndrome was going to occur someone would have discovered it already from the published counting sheets. (Well, I am 99.9% sure – could this series of events get any weirder?)

  2. Michael Moore
    October 28, 2017

    Thanks – it is the clarification that I was seeking .. part of my column this week on the messiness that is current politics. Travel well.

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This entry was posted on October 27, 2017 by in Australia, Australian Senate, Constitutional courts, Single transferable vote (STV).
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