Friday, November 10, 2017

Chaos, confusion and the evolving Section 44 mess

In his post today (10 November 2017 Weird things happening in Oz), Neil Whitfield referred (among other things) the mess that had arisen in the context of Section 44(i) of the Australian constitution. He also pointed readers to the updates I had being doing on an earlier post of mine, Section 44 of the Australian Constitution - clouded issues with a dash of moral bigotry. I had actually stopped updating because the whole thing had become just so chaotic, messy and downright confusing. 

I will provide a brief update in this post. But first, this is Section 44 of the Australian constitution dealing with ineligibility for election to the Australian parliament. I have given the section in full because other parts are now in play as well.
 Australian Constitution – Section 44 – Disqualification 
Any person who- 
(i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights & privileges of a subject or citizen of a foreign power: or
(ii.) Is attained of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
(iii.) Is an undischarged bankrupt or insolvent: or
(iv.) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
(v.) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons: 
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.  
But sub-section iv. does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.
At the time of my 30 October post, the High Court had just ruled (27 October) that:
  • four members of the Senate (Ludlum Greens, Waters Greens, Roberts One Nation and Nash National Party) had been dual citizens at the time of nomination and had therefore not been validly elected
  • one member of the House, Nationals Leader and Member for New England Barnaby Joyce, had also been a dual citizen and therefore not eligible for election
  • that two senators (Canavan, Nationals) and Xenophon NXT) were classed as validly elected if on somewhat different grounds. Mr Xenophon subsequently announced his intention to resign from the Senate. His position will be taken by a Green nominee formally appointed by the South Australian Parliament.  
In ruling, the High Court unanimously adopted a narrow literal interpretation of the wording of Section 44(i) raising the possibility that other members would be affected too.

Even as I was writing, it emerged that Senator Parry (Liberal Tasmania and President of the Senate) was seeking clarification as to whether he was a dual British citizen. He subsequently resigned from the Senate following advice that he was a British citizen by descent. Technically, he could not resign since he had not been validly elected.

Following Senator Parry, the Liberal member for Bennelong revealed that he had contacted British authorities to inquire urgently whether he too was a UK citizen by descent. The former tennis champion's father, Gilbert Alexander, migrated to Australia in 1911. Mr Alexander was born in 1951, two years after the creation of Australian citizenship in 1949.

This was followed by suggestions in the Australian newspaper that, Josh Frydenberg, the Liberal member for Kooyong, might be entitled to Hungarian citizenship through his mother. This infuriated Mr Frydenberg and many others because his mother came to Australia as a stateless person following the end of the war. The issues here are complex, but would appear to centre on the question as to whether subsequent alterations to Hungarian law to restore forfeited might have created an entitlement to apply.for Hungarian citizenship.

By now,  everybody was trawling through official records to try to determine whether a person might have some foreign citizenship or entitlement to that citizenship under the laws of other countries or, alternatively, whether the way that citizenship had been renounced might fail to comply with the High Court's rulings on the matter. The ABC has something of a list. All parties are affected, although the Labor Party's more rigorous processes provide it with a degree of protection.

The matter is fiendishly complicated because it involves foreign citizenship laws, while only the High Court has the power to determine whether someone is eligible or not. At this point it seems quite possible that more members will be caught up.

Should the Court determine that a member was not eligible to run and consequently declare the position vacant, then it has to be filled. In the lower house, this requires a new election for the vacant seat.  

Following the High Court decision, a by-election was announced for the seat of New England. The National Party renominated Barnaby Joyce since he was now eligible to run following his formal renunciation of any claims to New Zealand citizenship.Should John Alexander or any other member of the House of Representatives be found to have breached the constitution then further elections will need to be held.

The process in the Senate is different. In this case, the Court has ruled that a recount of the votes at the previous election must occur with the now ineligible Senator excluded. There are some complexities here, but this would normally result in the election of the next person down on the Party's Senate ticket. In the case of the National's Senator Nash, that meant Hollie Hughes, a Liberal because there was a joint Liberal/Nationals Senate ticket in NSW.

Today's High Court decision confirmed three of the four people to fill the first vacancies.However, the question of Hollie Hughes's eligibility was referred for decision to the full High Court. The problem was that following the election she took a Government position. Had she therefore breached Section 44(iv), holding an office of profit under the Crown? I would have thought not. She was eligible in the first place and could not have known that this position would arise. She also resigned the position as soon as the Nash problem became clear. However, I am not a lawyer and have been wrong on this one before.

The High Court now has to decide the case of Senator Parry and any other present Senators that may be caught up in the whole thing. There are also other actual or potential cases coming up involving other parts of Section 44 including the case of David Gillespie.  

None of the political parties have handled this evolving mess especially well. The problem of the meaning of Section 44(i) was identified some time ago, but it was either seen as not important enough or too hard to handle. As it broke, the party political responses tended to be short term reactive, seeking to contain or take advantage of the immediate situation. Few foresaw the scale of the problem even though it was foreseeable. The possibility that the High Court might adopt a literal almost black letter interpretation of the constitution was not sufficiently recognised, nor were the widespread ramifications that might follow such an interpretation.

The major parties will ultimately agree a process for handling the short term issue, leaving the broader issue of possible changes to the constitution to a later time. Meantime, Australians and indeed the rest of the world look in bemusement at this uniquely Australian constitutional crisis.


I said that I was not a lawyer. Interesting post from Boilermaker Bill, Can Hollie Hughes Get Past the High Court’s “Brutal Literalism”?, that sets out why the High Court might rule against Hollie Hughes despite common sense saying the opposite. .

Postscript 2 Update 12.50 11 November

As I write, John Alexander is resigning as an MP, meaning another by-election. The Liberal Party has also obtained advice from former Solicitor-General David Bennett, QC suggesting that Labor's Justine Keay and Susan Lamb and NXT MP Rebekha Sharkie may all be in breach of section 44 (i) of the constitution because they failed to complete renunciation of potential foreign citizenship by the date nominations closed. There are also claims chief government whip Nola Marino may have acquired Italian citizenship through marriage.

Am I alone in thinking that it is time for everybody to stop digging into everybody else's family histories and let Parliament agree a process for managing what has become a god-awful mess?


Anonymous said...

No, Jim, you are not alone in your thought; I saw today that maybe Pat Dodson is also under a cloud. And if he is, well, let the light shine in - imo.

The thing is, do you hold as base that our High Court is a legitimate 'third arm' of our democracy? I don't like the references to "black letter law" and what was that other one - "Brutal literalism" - yes, that's it. As if it's somehow the fault of our present High Court that this nonsense has come about.

I think, either you "stop digging" and basically turn a blind eye, or you adhere to the letter of the law. I vote for option #2 - as the only actual certainty we are presented with at the moment.


Anonymous said...

I mean - what do you want? "Emanations from a prenumbra":

they have a penumbra, a dim fringe, a connotation, for they express an attitude of will, into which it is our duty to penetrate and which we must enforce ungrudgingly when we can ascertain it, regardless of imprecision in its expression"

May as well do away with parliament altogether, and let the HC decide what's best for us - according to the latest 'emanation' from the 'prenumbra' as perceived by the current members of same - hey?


Jim Belshaw said...

Hi kvd. Just to clarify my position. I do regard the High Court as a central element in our democracy. It is the Court's role to interpret the constitution. Both black letter and brutal literalism are descriptors of the approach the Court had adopted. I might wish that they had adopted a different approach. but they are the authority. Once the Court has ruled, that lays down interpretation of the law until either the Court changes its mind or the law, in this case the constitution is amended.

To a degree, I think that your last comment misses the point. When you talk about the "letter" of the law, you are talking about the law as interpreted by the Court and as expressed in its most recent judgement. It is not the Court's fault that the political process has everybody digging and seeking legal advice on how to interpret the Court's rulings for subsequent use.

If I understand the three cases on which QC advice was obtained, they had been through a formal renunciation process but the acceptance of renunciation was not received until after nominations. This is different from Mr Roberts belated ad hoc approach. The issue now is whether or not that was sufficient in light of latest Court interpretation.

In a less febrile atmosphere the matter would have been allowed to rest, with all parties ensuring that their processes were made exactly compliant. We don't know what the Court might rule, there seems to be some doubt, nor do we know that the Parliament will actually refer the cases to the High Court, but all this is adding load to the Court and costs to others.

I also note, as I have previously suggested, that it is not the Court's fault that Parliament failed to address the constitutional issue even when it was recognised as a significant problem.

Anonymous said...

"nor do we know that the Parliament will actually refer the cases to the High Court"

So, you are suggesting that only 'The Parliament' may refer such knotty cases to the High Court? If so, the inmates really are in charge of their asylum.

The High Court has said that the law is fairly clear; it is a constitutional matter, so that means any change is by referendum; so where's the further debate?

What relevance, or any relevance, are you attaching to the "Parliament failed to address the constitutional issue even when it was recognised as a significant problem"

And "when" was it "recognised"? And how could "Parliament... address" a problem not (thankfully) actually within its remit?


ps every time I see some pundit suggesting that the law is obviously an ass, I think to myself that at least it's a 2,000 year old ass

Jim Belshaw said...

Leaving shortly, kvd. Briefly, the High Court has been considering these matters as the court of disputed returns, a power conferred on it by the Commonwealth Electoral Act. Under that Act, "COMMONWEALTH ELECTORAL ACT 1918 - SECT 376

Reference of question as to qualification or vacancy
Any question respecting the qualifications of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question." More later