More Section 44 Cases In Spotlight

A very long time ago now two Greens Senators resigned after discovering they were dual citizens.  The Senate will refer their cases to the Court of Disputed Returns (typically the High Court) which will determine whether they were eligible to have been elected in the first place and, assuming that they weren't, will initiate a "special count" to fill their places.  In the weeks since then, however, many more MPs have come under the spotlight of the dual citizenship rule in Section 44 of the Constitution, and it's unlikely it has claimed its final victim yet.

The Constitution is very black and white about dual citizenships - section 44 says that if you are a citizen of another country, you are not eligible to be chosen or to sit in Parliament.  It doesn't seem to allow any ifs or buts about all that.  However, the High Court in Sykes v Cleary [1992] found that the Constitution was unrealistic and had to be "read down".  After all, if it were that straightforward then another nation could maliciously impose citizenship on Australian MPs and refuse to withdraw it.  Alternatively, for a given citizen of a given nation, procedures for getting rid of an unwanted citizenship might be unrealistically expensive, time-consuming, slow, dangerous, unreliable or unreasonable.



The Sykes v Cleary judgement is a difficult one to apply to the many examples now being discussed because there are five separate statements of decision (one by three judges and four individual statements).  Basically, all the judges agreed that there was a need to "read down" the Section 44 requirement, but they did not all agree on how far to go.  Two of the seven considered that a statement under Australian law renouncing all other allegiances (eg during a naturalisation ceremony) was potentially enough by itself (with various qualifiers); the other five disagreed.  The other five went for various versions of "reasonable steps" or "all reasonable steps" to renounce citizenship by application to the overseas country as the test.

Those applying some version of a "reasonable steps" test (beyond naturalisation oaths) did not spell out the minimum conditions for the test to be met.  They merely made it clear that if someone had taken all reasonable steps to renounce citizenship before contesting,  then that person did not need to have succeeded in that attempt to have passed the test.

There are so many MPs who were either born overseas or may have inherited dual citizenship that it isn't practical to comment here upon them all.  Many cases may appear suspicious, but it may simply be that the MP has well and truly renounced and has yet to publish proof.  At this stage there are three cases that have been referred and two that realistically could be.  I may add to the list below as and when more facts come out about others.

Senators Scott Ludlam (Green, WA) and Larissa Waters (Green, Qld)

Status: Resigned and referred

These Senators have already resigned and it is expected that the High Court will find them to have not been validly elected in the first place, and therefore order special counts (see the earlier article).  The High Court in Sykes v Cleary showed little if any sign of caring whether or not an MP knew they were a dual citizen, with the taking of steps to remove dual citizenship being seen as the key test.  Neither Ludlam or Waters took any steps, so it appears they are in exactly the same boat as Phil Cleary's two ineligible opponents in his disallowed by-election win.  The High Court would have to substantially revisit Sykes v Cleary to allow the Greens to fill either of these positions by casual vacancy.

Electoral ramifications were covered in the earlier article.

Senator Matt Canavan (LNP, Qld)

Status: Referred, resigned from Cabinet, not voting

Canavan has resigned from Cabinet and his case will be referred.  Canavan was born in Australia but is recorded as an Italian citizen, according to him through an application made by his mother without his knowledge or consent.

On the surface, Canavan is in very serious trouble because he also took no steps to renounce.  If the leading judgement in Sykes v Cleary is followed, then his diminished connection to Italy compared to someone born there could mean the "reasonable steps" required are less onerous, but it doesn't remove the requirement to do something.  So Canavan is relying on something like the following happening:

* The High Court creates a new exception for cases where a person acquires citizenship of another country without their knowledge.
* The High Court rules that "reasonable steps" are not required for citizens by descent who passively acquire citizenship but have made no actual use of it.
* There is some determination that the application in Canavan's name to be an Italian citizen was invalid in the first place and hence that he was actually never a citizen.

In the event that Canavan is disqualified, his special count instead elects recent former Senator Joanna Lindgren (see Grahame Bowland's simulations).  This situation raises similar Section 282 problems (earlier article, again - and see discussion in comments) to the Scott Ludlam countback in that Lindgren would appear to get a six-year term, despite being lower on the original ballot than Senators Macdonald and O'Sullivan (who each got three year terms.)

If Canavan is found to have been validly elected, he will be free to continue his career and may well be restored to Cabinet.

Senator Malcolm Roberts (One Nation, Qld)

Status: Referred

Warning: this section has been rated Wonk Factor 4/5 on the grounds of containing discussion of obscure points of electoral law.

At the time of writing Roberts has not yet been referred to the High Court although referral looks likely (UPDATE 9/8: Roberts has now been referred) given that it has sufficient crossbench support that only one major party would need to support the referral for it to pass.  Roberts' situation based on material in the public domain so far (some of it only his own claims) appears to be:

* he appears to have been a British citizen by descent because his father was born in Wales
* he contacted the British consulate enquiring as to whether he was a British citizen from May 1 2016
* he contacted the British consulate on June 6 2016 (three days before the close of nominations) advising that if he was a citizen of Britain, then he renounced it
* after further correspondent - the nature of which is unclear - he received confirmation of renunciation in December 2016, five months after the election.

Roberts has displayed a very strange attitude to legal correspondence before so it should not be assumed that things are necessarily as they seem.  His position might be much stronger or much weaker than he makes out.  The large number of contradictory statements he has so far made suggests the latter, but we'll see.

If the above is all accurate then Roberts did at least take steps to renounce before the election (unlike Canavan), but the court would have to consider whether these steps were sufficient to count as "reasonable".  In particular, does Roberts' June 6 contact even count as a formal attempt to renounce (there is no indication it was on the proper form)?  Assuming the steps that Roberts took were adequate in isolation, does taking all reasonable steps to renounce citizenship also entail that those reasonable steps are taken far enough in advance of the election to succeed before nominations close?  Or does this place too much of a burden on candidates in terms of how far ahead of an election they need to commit themselves to running?

If Roberts is found to have been ineligibly elected, his seat at a special count would, all else being equal, won by third One Nation Queensland candidate Fraser Anning.  The fact that Anning polled a massive nineteen primaries (second-last on the entire Queensland ballot) is irrelevant as in this case Anning would get Pauline Hanson's surplus.  An Anning victory, however, creates further complications because, as discovered by @swearyanthony on Twitter (which somehow qualifies as a Fairfax "exclusive"), Anning is currently facing bankruptcy proceedings (with a hearing as soon as August 22).  If Anning becomes bankrupt, he will lose the right to sit in the Senate while that is the situation.

Depending on the pace of the various cases, one possibility would be Anning winning the special count, serving for a short period, and then creating a casual vacancy to be filled by the party (including potentially by Roberts ... or for that matter James Ashby) The murkier prospect is if Anning becomes bankrupt before the HCA has finished with the Roberts matter.  Antony Green has said that a vacancy for Anning in this case would be treated as a casual vacancy (Section 15), and certainly this seems most intuitively consistent with what would normally happen with a mid-term vacancy.  However in this case Anning's position would be vacant not during his term of service but before it commenced.  Stephen Murray has written a very detailed piece giving many reasons why the Court could decide to exclude an ineligible candidate from a special count.

The transcripts of the Day case concerning Lucy Gichuhi may also be of some interest here.  Mr Kirk (appearing for Anne McEwen (ALP)) argued that if the High Court does seat an ineligible Senator as a result of a special count, then the decision appears to be final and beyond challenge; therefore, the court should assess challenges to ineligible prospective Senators before allowing them to win special counts.  Justice Nettle acknowledged that this was a possible issue, before disallowing the challenge to Gichuhi's eligibility from the McEwen team on the grounds that the challenge had been made too slowly and in any case appeared to have no prospect of success.

It's clear that a candidate who is not eligible at the original election is also not eligible for special counts  arising from it - indeed if they were, then in theory Rod Culleton could patch up his eligibility and have himself returned to the Senate on the special count for Scott Ludlam.   What is less clear is whether a candidate who has become ineligible in the meantime can contest a special count when they are not even eligible to sit in the Senate - and whether the High Court should treat it as analogous to a casual vacancy case or by special count if they cannot.  I think that remedying it as if a casual vacancy for the ineligible special count winner would be fairest in terms of respecting the will of the voters in the original election based on their view of the candidates who were then eligible to stand.

Simulations by Grahame Bowland have confirmed that even if the special count process leads to a countback that is minus four (!) candidates, One Nation's last line of defense Judy Smith would win Roberts' seat.  An oddity of the simulation is that although candidates Roberts and Anning polled only 96 below the line votes between them, removing both makes Smith's final position a whopping 2877 votes' weaker than Roberts'.  Moreover, this isn't just a case of voters marking Roberts' box and then stopping or making a mistake rather than following on to Anning and Smith - most of these lost votes are "leaking" to candidates outside the One Nation list before, in most cases, exhausting.  This is also happening on preferences arriving with Roberts from across the board - and mostly not One Nation votes.  I would not be too surprised if there is some form of geometric proximity-preferencing at work here, such that voters voting below the line who vote across parties for known names are more likely to stay high in the party lists rather than preferencing those well down them.  There may also be some horizontal "donkeying" at work.

Barnaby Joyce MHR (Nat, New England)

Status: Referred

Nationals leader and Deputy Premier Barnaby Joyce's father was born in New Zealand and preliminary advice is that he "may be" (ie probably is) a citizen of New Zealand by descent.  There is no indication he was aware of this or has taken any steps to either register that citizenship or renounce it.  Joyce has been referred by the House of Representatives to the High Court although the Government claims to be confident that he will retain his position.  On what basis they are so confident I am not sure.  If Joyce is declared ineligible, there will be a by-election for his seat, in which he fairly comfortably defeated independent former MP Tony Windsor last time.

Update: Contrary to advice from the earliest media enquiries, Joyce was found to be a citizen of New Zealand, though he has now renounced.  He will be reliant on the High Court creating some new exception, possibly following the Deane minority judgement precedent.

Senator Fiona Nash (Nat, NSW)

Status: To be referred

Nash's position appears to be similar to Joyce in that she has a Scottish father and therefore appears to be a UK citizen by descent.  Nash, like Joyce, is refusing to stand aside from the ministry but it will be interesting to see how that flies in the Senate where the Coalition doesn't have the numbers.

If Nash is ineligible, her countback will elect Liberal Hollie Hughes.  Nash was third on the Liberal-National combined ticket and has been elected for a six-year term.  If Nash is forced to vacate her seat, then if Hughes served out her term that would mean the Nationals lost a seat to the Liberals, who would gain a six-year seat (well, what's left of it) in the process.  The same would also apply if a revised order of election were preferred, except in this case Concetta Fierravanti-Wells would be upgraded.

Senator Nick Xenophon (NXT, SA)

Status: To be referred

Xenophon's father was born in Cyprus while it was a British colony and travelled to Australia on a British passport.  His mother was born in Greece and Xenophon has renounced Greek and Cypriot citizenship but not British, as he was not aware he had it.  If he is found ineligible his six-year term (absent of any rearrangement by the Senate) would go to the NXT number four candidate Tim Storer.  It is in theory possible given Xenophon's large below-the-line vote that this recount could unelect Lucy Gichuhi. I'm confident it doesn't, but a full simulation would confirm that it doesn't.

Xenophon's overseas citizenship is according to him "useless" in terms of actual benefits conferred that are not already available as an Australian citizen.  That Xenophon's father was apparently fleeing British control but doing so on a British passport makes the case especially bizarre.

Justine Keay MHR (ALP, Braddon)

Status: Not yet referred

At the time of writing Keay has not been referred to the High Court and no discussion of intention to refer her (which the Government could do alone using its numbers in the lower house) has been seen.  Based on material made public on Wednesday, Keay's situation appears to be:

* she appears to have been born with British citizenship through her late father
* she sent the appropriate renunciation form and passport on 13 May, it was delivered on 23 May and officially receipted on 31 May (all 2016)
* however the UK did not register the renunciation of citizenship until 11 July (apparently meaning she was still a dual citizen at the time of the election)

Keay's position appears to be much stronger than Roberts' in terms of having completed her end of formalities properly well prior to the close of nominations.  The only, but perhaps serious, question remaining in her situation (if the facts are as stated) is whether the Court might still rule that a candidate must take all reasonable steps to renounce their citizenship in time, and that this includes applying in enough advance to allow for normal processing time at the other end.

If any MHR is declared ineligible subject to Section 44, this triggers a by-election for their seat, which they can recontest if they are eligible.  It is received wisdom that electors disapprove of by-elections based on technical grounds and respond by returning the disqualified MP.  However, this has not been tested often, and the best-known test (Jackie Kelly) came at a time when the new government was riding well above its election result in the polls.  It is improbable that Labor would lose any by-election to the government in such a case, but independent raids could be another matter.

A note re Julia Banks MHR (Lib, Chisholm)

In the above cases we know there is an arguable case of ineligibility - how strong or weak it might be being beside the point. I've wavered about giving Banks a section on a similar level to the others but decided that I'll only include MPs in the main list above if there is a clear basis for an argument for ineligibility - not just speculation.  There are many MPs who have not yet proven they are eligible by releasing documents.

Banks was born in Australia but her father was born in Greece.  People in this circumstance acquire Greek nationality (though at one point it is translated as citizenship) but have to apply for registration as citizens to become a "Greek Citizen".  The language is all rather baffling - it seems one can be a Greek Citizen who hasn't exercised a Right to Citizenship.

The Banks matter seemed to have been defused by a Liberal Party statement that the Greek embassy had said "that according to records, Julia Banks is not registered as a Greek citizen and also is not entitled as a Greek citizen".  However the language "entitled as a" is a bit odd and the statement has led to Labor questions about whether/when Banks renounced her supposed entitlement.  Also, all language used in these matters is being scrutinised for what it doesn't say more than for what it does - the statement doesn't establish that Banks has never been a Greek citizen or entitled to be one, only that she isn't one now.

The entitlement part comes from Section 44 including the words "entitled to the rights or privileges of a subject or a citizen of a foreign power", raising questions of whether someone is "entitled" to those rights if they would need to go through a process to activate them but, as apparently in Banks' case, haven't done so.  There is also the question of whether one can renounce an entitlement that isn't active (and what happens if one later wants it back).  These questions are outside my expertise.

MPs The Coalition Has Threatened To Refer

On Monday 14 August, Prime Minister Turnbull asked Opposition Leader Bill Shorten if he was willing to cooperate for the sake of convenience by referring any Labor MPs over whom doubts exist, allowing the High Court to hear all cases together.  Shorten refused, and during Question Time Labor moved that Barnaby Joyce not be heard and then also moved that standing orders be suspended to deal with the matter of Joyce not standing aside from cabinet.  (Both motions failed.)

As well as Keay, Leader of the House Christopher Pyne has now threatened that the government could refer other Labor MPs to the High Court if Labor continues trying to exploit the Joyce situation.  Those named are:

* Susan Lamb (Longman, Qld) - British father
* Tony Zappia (Makin, SA) - Born in Italy
* Maria Vamvakinou (Calwell, Vic) - Born in Greece
* Brendan O'Connor (Gorton, Vic) - Born in UK

No positive evidence that any of these MPs could be ineligible is known to me, however they have also not proved that they renounced dual citizenships before the election.  (See statement from Zappia.)

A note re Senator Nick McKim (Greens, Tas)

Senator Nick McKim (Greens, Tasmania) will presumably be taken off all reasonable suspects lists because he has presented evidence that his form was received by the Home Office in August 2015. He has not revealed exactly when his citizenship was formally cancelled, but even if the Home Office somehow then took most of a year to process the form, it could hardly be said he had not taken all reasonable steps to be available for the 2016 election.  In fact, McKim undertook these steps in preparation to serving a casual vacancy created by the retirement of Christine Milne, and his form was received five days before he commenced serving in the Senate.  All that is irrelevant now since it is only his place in the Senate as a result of winning in the last election that can still be referred.

McKim's eligibility is scarcely surprising, but will nonetheless be a relief to the Greens who could ill afford to lose any more Senators, but particularly not this one.  Because of the high rate of below-the-line voting in the Tasmanian Senate and the extremely close final seat result, it is very likely (although this hasn't been confirmed by testing) that a special count for either of the two Tasmanian Green Senators would see a seat lost to One Nation.  Indeed, the Greens would have reason to be nervous about any eligibility issues involving non-Green Senators elected in Tasmania, because it is in theory possible that a special count for some other Tasmanian Senator could "unelect" McKim.  (What the High Court would make of that is anyone's guess).  However, it does not currently appear (the huffing and puffing of an army of wishful "Abetz birthers" notwithstanding) that any Tasmanian Senators have eligibility issues.

A note about the government's majority

One of the government's MPs, David Gillespie (Nat, Lyne), is already facing challenge under another part of section 44 relating to conflicts of interest.  This, together with fleeting speculation about the citizenship of Julia Banks (Lib, Chisholm) (edit: and now Joyce) has led to more and more references to the government being at risk of collapsing should it lose a seat in the Reps.

In fact, such an event would be embarrassing, but almost certainly not fatal by itself.  In the days after the last election, the government received understandings on confidence and supply from three of the five crossbenchers - Bob Katter, Cathy McGowan and Andrew Wilkie.  Even if these assurances were withdrawn (Update 14 Aug: Katter's has now been withdrawn, for Wilkie see below), it seems unlikely the crossbench would unanimously decide to bring down the government and force an election. Such an election would see a landslide Labor win would consign the crossbench to irrelevance (quite aside from the ramifications for some of their own seats).

(Note: Wilkie's assurance on confidence and supply was qualified - he said he would not vote against confidence and supply unless "clearly warranted").

Moreover, looking at the voting record of the crossbench thus far, there would be relatively few issues of substance on which the loss of one seat would cause the government to lose the vote.  In theory, a crossbench gangup might see a bill pass through the House of Representatives and Senate against the government's wishes, most likely on banking reform, but if this only happened because the Speaker did not have a vote then there would be some case for advising the Governor-General not to sign the bill anyway.

There is, however, potential for the crossbench to exert pressure to bring about Joyce and Nash standing aside from the ministry until their status is resolved.

Section 44 Suspects (Other Than Citizenship)

Status: Gillespie being sued by "common informer"

I mentioned Gillespie above - he is being sued by his Labor opponent as a "common informer", which if successful entitles the plaintiff to a princely $200 for each day the ineligible member sits.  There is some unclarity about whether success necessarily unseats that member.  A by-election in Lyne could be unpleasant as it is in theory a safe seat but was formerly held by independent Rob Oakeshott.

Senator Barry O'Sullivan (Queensland) has also been the subject of media reports concerning business investments that may breach conflict of interest provisions, especially following the Day case and its unwinding of the Webster case from the 1970s.  If Canavan and O'Sullivan were both scratched, LNP number 7 out of 8, lawyer Dan Ryan, would step up to the plate.