Saturday, October 26, 2019

MPs Who Do Not Have Citizesnhip Of New Zeland

Now would I misspell a title twice?  Read on and all will be revealed ...

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Scott Morrison (Liberal, Cook)

Today there was a curious development in the long-running Section 44 citizenship farce.  Margaret Simons in the Guardian reported that Prime Minister Scott Morrison appears to have given incomplete/incorrect citizenship declarations that fail to address a manner in which he could in theory have become a citizen of New Zealand.  That is not to say he is a citizen of New Zealand, but that his explanation of why he is not is apparently wrong, or as Dr Anna Hood puts it in Simons' article, "problematic".

Simons has published that fine print in a change in New Zealand law, passed in 1948 and effective 1/1/1949, conferred full citizenship on then-living females (but not males) who were the offspring of British subject fathers born in New Zealand.  That full citizenship then allowed the offspring of those females to be potentially registered as New Zealand citizens by virtue of being "the minor child of a New Zealand citizen".  If so registered, they would now be ineligible to sit in the Australian parliament under Section 44, unless they had subsequently renounced.  (The British Nationality and New Zealand Citizenship Act 1948 was repealed effective 1 Jan 1978 by the Citizenship Act 1977, but those who were citizens under the former Act at that stage remained so. For this reason as well as Morrison no longer being a "minor child", there is no issue of an existing entitlement to become a citizen.)



 If Morrison was not thus registered, and I have no reason to believe he was, then he is fine.  But there will probably be pressure on him to prove it.

Simons reported the Prime Minister's way of addressing his mother's citizenship, in his citizenship declaration made in 2017.  It looks like this:


The Prime Minister also addressed this in his 2019 federal election nomination checklist.  That looks like this (the blue colour is because I had outlined the text at the time; the document is actually white but let's colour up the page a little ... ):



Morrison's checklist assures us he could not have acquired "Citizesnhip" of "New Zeland" because even if his mother acquired citizenship by descent in 1949, she could not have passed it to him.  However, Simons' reporting, which she states has been confirmed by NZ authorities, finds that this limitation applies to a male child of a male British subject (section 16 (5) here ) but not to a female child of a female British subject (section 16 (2)).  (An example of this is Larissa Waters, already disqualified once.  Her father was born in Australia to two NZ parents in 1948, just before the legislation came into effect, but as a "male person" he only became an NZ citizen by descent.)

I am not a lawyer let alone an immigration lawyer, and hence cannot provide an expert assessment of the claims re Morrison myself.  But it's rather remarkable that the only Google hit I found for the clause that all this turns on (16 (5)) is some NZ MPs in 1948 expressing confusion about the drafting and basically having no idea what it means.  Also that this would appear to contradict interpretations of NZ law that are widely available online!  And yet, it all appears to me to check out.

Even if Morrison were to be ineligible this would only trigger a by-election which he would win by a ridiculous margin, and as far as I know without even necessarily ceasing to be Prime Minister in the process. So the only prize on offer here for the opposition would be embarrassment, distraction and some more of the temporary parliamentary numbers games they used so well to their advantage (not) in the previous parliament.  And even that could be a hard-won prize, since a resolution of the previous Parliament would, at best, require referral to a committee to investigate the matter first prior to any motion for referral to the High Court being put - and the Government would have the numbers on that motion should it wish to block action.

Surely, I thought, Morrison would not be the only one.   (It turns out that "MPs whose mother's father was born in New Zealand" is a bit of a niche market - those who were actually born in NZ have renounced, and those with parents born in NZ have either been disqualified already or renounced.) So I've checked, and found just the following two.  I mention in passing that Julie Collins, Labor MP for Franklin, is a near miss - her maternal grandfather was born in New Zealand, but her mother was born in 1951, three years after the change came into force, so Collins isn't affected.

Angus Taylor (Liberal, Hume)

It appears however based on his declarations that another safe-seat dweller, the Liberal member for Hume, Angus Taylor, is in the same situation as Morrison.  By the standards argued in Simons' article, he too is potentially entitled to NZ citizenship by registration, though there is no evidence that he was registered, and he and his parents may well have been completely unaware that he could be.  Both Taylor's mother's parents were born in New Zealand.  His mother was born in Australia in 1940, before 1949, as with Morrison.  In 2017 Taylor had this to say about his basis for believing himself to be in the clear:
Taylor's 2019 election checklist is rather more informative ... where have we seen this before?

However, while answering question 5b identically to Morrison (complete with misspellings), Taylor's form did not answer question 10b at all.  That's odd.

Anne Webster (Nationals, Mallee)

It's a bit unfair to include Anne Webster in this article because unlike the above named MPs her declaration does not misspell the word "citizenship".  However she is also apparently covered by this.  Webster's mother's father was born in NZ and her mother was born in Australia in 1936:

So Webster says that she has actually contacted the NZ Department of Internal Affairs and received advice of the sort that is contradicted by the experts consulted by Simons and, according to Simons, now by the Department itself.  Again, there is no evidence that Webster or her mother ever knew she could be registered as an NZ citizen, let alone attempted to do so.

It appears that only the three Coalition MPs - Morrison, Taylor and Webster, are covered by this situation.

(Thanks to the anonymous source who some time ago provided me with all the 2019 declarations that had been taken offline and were not retrievable via Wayback).

PS Jeremy Gans has pointed to an even more byzantine quirk in the 1948 Act - a provision that allowed for children of fathers who were NZ citizens at birth (including by descent) to be registered as NZ citizens by descent themselves in the first year of their life only.  On my reading (though this stuff is really making my head spin by now) this almost catches Waters, who was born in February 1977, and therefore might in theory have been registered before the end of 1977 when the 1948 Act was repealed.  However, her father was born June 1948, before the Act creating New Zealand citizenship came into force on 1/1/1949, so I suspect he was not an NZ citizen at birth and therefore this doesn't apply.   (Waters has also produced direct evidence from NZ authorities that she is not a New Zealand citizen.  Her birth was actually registered at the Australian embassy in Ottawa, leading to her eventual disqualification as an unknowing Canadian dual citizen.)  I don't believe this proviso picks up any further MPs, but I could be wrong.

3 comments:

  1. Excellent article Kevin. Intriguing that the declarations by Morrison and Taylor use the same text, including the same spelling errors.

    ReplyDelete
  2. For those of us of part-Irish heritage the situation is even worse! My great-grandmother was born in Co. Cork in the late 1850s. My paternal grandfather was born in Victoria in the late 1880s. My father was also born here. From 1956-86 Irish citizenship law allowed my father, a *grandchild*, to register himself a foreign-born Irish citizen and bring in my mother and us children (*great-grandchildren*) as foreign-born Irish citizens as well! We think (but don't *know*) that he didn't.

    https://www.citizensinformation.ie/en/moving_country/irish_citizenship/irish_citizenship_through_birth_or_descent.html

    ReplyDelete
  3. My father's paternal *grandmother* was born in Co. Cork, Ireland, in the late 1850s. My grandfather and father were both born in Victoria. Between 1956-86, my father could claim Irish citizenship by descent for himself, our mother, and us (the *great-grandchildren* of the Irish-born ancestor)! Dad probably didn't, but I don't *know* that.

    https://www.citizensinformation.ie/en/moving_country/irish_citizenship/irish_citizenship_through_birth_or_descent.html

    ReplyDelete