How people elect parliaments
The constitutional high farce that has already seen 8 Australian MPS and Senators removed from Parliament now sees around a dozen more MPs under threat of removal.
From July this year a number of national parliamentarians were revealed to hold dual citizenships.
Unlike most nations’ prerequisites for election, the Australian Constitution contains an express bar on any person holding additional citizenships from being elected to the national Parliament.
By October this year the nation’s High Court had ruled that four Senators – Scott Ludlum (Western Australia), Malcolm Roberts (Queensland), Larissa Waters (Queensland) and Fiona Nash (NSW) – and one member of the House of Representatives – Deputy Prime Minister Barnaby Joyce – held dual citizenships, and were thus never validly elected at the last federal election in July 2016.
Two other challenged Senators – Matthew Canavan and Nick Xenophon – escaped narrowly, being found to have only limited or unverifiable overseas citizenship rights.
The Court’s recent rulings mainly dealt with citizenship ‘by descent’, where Australians with foreign-born parents had acquired additional citizenship under the laws of foreign nations, often without the person’s realisation.
The new legal position effectively means that any person nominating for Parliament must take full responsibility for checking their legal position – and if necessary renounce overseas citizenships under processes administered by the foreign nations – before they nominate for election.
Australian Senators are elected (12 for each of the six states, and 2 for each federal territory) under the single transferable vote (STV) electoral system, allowing the Court to order that the four excluded senators be replaced by conducting a recount of the original 2016 ballots, with the ineligible candidates excluded.
This process raised the hypothetical possibility that the recount could do more than simply replace one of the 12 candidates elected in the Australian state in question, but could see other sitting senators dislodged. However for the moment no such ‘Caifia syndrome‘ change appears to have has occurred.
Three of the four Senate vacancies have been resolved by the recount process. The fourth case (Nash, NSW) is delayed by the discovery that the new winning candidate brought forward by the recount has herself become ineligible to be elected – for an unrelated reason – since the July 2016 election was held.
The vacancy of the ineligible House member has also now been dealt with, with former Deputy PM Joyce – having tidied up his renunciation of New Zealand citizenship – easily winning the by-election for his electoral division of New England last weekend.
But then round 2 of the crisis emerged in November. Following the High Court’s initial judgements, the President of the Senate (Stephen Parry, Tasmania), two other Senators (Jackie Lambie, Tasmania and Skye Kockoshke-Moore, South Australia), and another House MP (John Alexander, Bennelong, NSW) realised that they were in breach of the strict legal position. They all promptly resigned from Parliament.
The July 2016 elections for Senators for five of the six Australian states, and one of the territories, will ultimately have had to be recounted to deal with ineligible winners.
Another House division by-election is already underway in the division of Bennelong, with Alexander seeking to recover his seat after also dealing with his foreign citizenship renunciation.
Round 3 of the fiasco is just now getting underway. To attempt to bring the drama to a rational conclusion, Parliament’s two houses agreed to require all their members to lodge declarations of foreign ancestry links back to their grandparents, and provide details of any necessary renunciations. These declarations have become public in the last few days.
To date the crisis had only affected MPs from the governing Liberal and National Coalition and the minor parties of the cross bench.
But five MPs from the opposition Labor party – Senator Katy Gallagher (ACT) and House of Representatives members Josh Wilson (Freemantle, WA), David Feeney (Batman, Victoria), Susan Lamb (Longman, Queensland) and Justine Keay (Braddon), together with another crossbench Senator (Rebecca Sharkie, South Australia) now appear to be at risk.
This group appropriately took legal steps to renounce foreign citizenship before nominating for the 2016 election. However the confirmation from the relevant foreign countries appears only to have been received at later dates. The Court may now be asked to decide whether their renunciation actions are legally adequate.
The current government – which holds a 1-seat majority in parliament, and indeed is currently technically in minority while the first two by-elections are decided – would be delighted to see numerous opposition MPs face by-elections in the new year.
But no less than another seven government MPs may also have their status dragged into question.
The Labor members’ situation is clearer, because the Labor party’s election preparations appear to be more organised and thorough than those of other parties.
The Liberal-National government MP cases are less clear, because they have simply provided less paperwork to make clear their position.
Four government MPs have Greek heritage, and Greece is apparently somewhat slow to deal with citizenship renunciation matters.
Another government MP is, awkwardly, the descendent of a Holocaust survivor who may have received a form of citizenship entitlement from Hungary as a result of generous modern Hungarian legislation which seeks to reinstate the entitlements of individuals and families dispossessed by the horrific events of WWII.
The issue seems set to just keep rolling on. Technically, the status of MPs can only be challenged by a resolution of the relevant House of Parliament referring a member’s eligibility to be determined by the High Court.
The obvious immediate next step would be to refer all the questionable cases to the Court (which has now adjourned its sittings until February), but the partisan impact on both the closely-balanced houses of parliament is vexing the issue.
Wise heads have been trying to restrain the government from partisan resolutions only targeting their opponents, fearing that a most undesirable precedent would be set.
And in any case, the government now has a working floor majority in neither house of Parliament.
The public has already tired of the whole fiasco, and its growing legal costs.
But with the loss of a single government House member in a by-election having the potential to reduce the government to a minority administration, and perhaps even bring it down, the issue is much more than an academic legal question.
And underlying the immediate politics is the question of whether the revealed constitutional position is even an appropriate one, or whether it is denying the Australian electorate the freedom to elect the representatives of their choice.
Parliament’s Joint Standing Committee on Electoral Matters has now launched an inquiry into section 44 of the Constitution – the source of all the current trouble – and Parliament’s power to pass laws that might streamline the management of election nominations and candidate eligibility.
Not a few voices are calling for the 1890s constitutional text to be amended to better match the modern Australian society, in which an estimated 49% of the population may possess some form of entitlement to foreign citizenship.