NewsBite

Judgment Day for citizenship seven

THE last few weeks in parliament could be a nightmare for the Turnbull government after the High Court ruling saw it lose its majority.

Matt YoungMatt Young
@MattYoung
9 min read
October 28, 2017 - 1:48AM
Citizenship Seven decision puts government in peril

THE High Court decision to disqualify senior ministers Barnaby Joyce and Fiona Nash will lead to an “ugly month” of uncertainty for the Turnbull government in parliament.

On Friday the court ruled Joyce and Nash, along with three others, were ineligible to stand for the 2016 election because they were dual citizens of New Zealand and Britain respectively.

Joyce will face a by-election in his seat of New England on December 2 and won’t return to parliament until February at the earliest.

That means the government will be forced to rely on at least one crossbencher for passing legislation in the final two weeks of the year, likely to include a critical vote on same-sex marriage.

Independent Cathy McGowan has indicated she will support the government against any vote of no-confidence, however Labour politicians have suggested they may seek to take on the government over key issues they narrowly lost earlier in the year.

Labor deputy leader Tanya Plibersek said the party wouldn’t plan “mischief” but indicated it could force a revisit to penalty rate cuts and the establishment of a banking royal commission — both issues the government decided by one vote earlier this year.

“Every decision made by both Barnaby Joyce and Fiona Nash since October last year is under a legal cloud,” Ms Plibersek said.

“Labor regrets that the Prime Minister chose to keep two of his cabinet ministers, Barnaby Joyce and Fiona Nash, in their positions, after they had chosen to refer themselves to the High Court. It was reckless judgment from the Prime Minister and a decision with serious consequences.”

ABC political reporter David Lipson confirmed the “next month is going to be ugly”. On Friday, Labor MP Tony Burke told 7:30 there are “real impacts” of decisions the government had won by a single vote.

“700,000 people, this Sunday, will be paid less. Why are they being paid less? The vote of one person, now found by the High Court to be unlawful. There are real impacts happening out there,” he said.

On the same-sex marriage vote expected to take place after the postal survey results, Burke said Labor would not “try and blow up” the result.

“We want to get that [SSM] vote done. So it’ll depend on what legislation is in front of us. There’s a whole lot of procedural barriers that you deal with in the parliament, and as Opposition, you’re not in control of everything — there are some things you need 76 votes for,” he said.

The High Court decision went against what Australian Prime Minister Malcolm Turnbull had predicted and puts key legislation in doubt before the end of the year. Picture: AAP Image/Lukas Coch
The High Court decision went against what Australian Prime Minister Malcolm Turnbull had predicted and puts key legislation in doubt before the end of the year. Picture: AAP Image/Lukas Coch

Prime Minister Malcolm Turnbull has been criticised for leaving many heads scratching over the fate of the Australian government after the High Court’s decision today.

The High Court ruled Deputy Prime Minister Barnaby Joyce out of Parliament due to his dual New Zealand citizenship.

Nationals Senator Fiona Nash, One Nation Senator Malcolm Roberts, and former Greens Senators Larissa Waters and Scott Ludlam were also disqualified over holding dual citizenship.

Senator Nick Xenophon and Matt Canavan were the only two out of the “citizenship seven” to survive the High Court’s decision.

— Read the High Court’s judgment in full here —

With Mr Turnbull scheduled to leave for Israel this weekend, the question of who might be the acting prime minister in Mr Joyce’s absence weighed heavily on the PMO’s mind.

Deputy Liberal Leader and Foreign Minister Julie Bishop was a candidate to step into the role but Nigel Scullion — who becomes Nationals Leader with Mr Joyce and the party’s deputy leader Fiona Nash both ruled ineligible to sit — was also an option.

The trip has now been delayed but you wouldn’t have known, according to reporters at the scene he “barely answered one question before bolting”. Some say the Prime Minister is improving his “poker face”.

“This process has been long and drawn out, he should have come out and shown they’re ready to govern,” said Sky News’ Laura Jayes.

“There are questions left open and the public are left scratching our heads. There should have been more answers.”

Ten minutes later, the Prime Minister’s office announced the Mr Turnbull was delaying his trip, with the role of Acting Prime Minister not yet final.

Acting Opposition Leader Tanya Plibersek said “we now have a hung parliament with a minority government”.

Insiders have called it “embarrassing” for the embattled PM and believe there is now a question mark over who how the government will “hold it together”.

“It’s up to the Prime Minister to explain how he got it so wrong,” said Ms Plibersek.

The decision also triggers a by-election in the Nationals Leader’s seat of New England, where Mr Joyce will attempt to regain his place. He confirmed it will be held on December 2.

“The decision of the court today is clearly not the outcome we were hoping for,” Mr Turnbull said. “[We] are obviously disappointed that the court has found against Barnaby Joyce.”

Mr Joyce’s longtime rival, Tony Windsor, said he will not contest the election out of respect for his wife.

Senator Nigel Scullion will replace Mr Joyce as temporary Parliamentary leader for The Nationals until the result of the by-election. The content for New England is expected to become a major political showdown.

“I am going to make sure that I don’t cry in my beer,” Mr Joyce said after the announcement, despite describing it as a “momentous day”.

Mr Joyce said he was “naturally cautious” and “always prepared for this outcome”.

“I don’t actually stand here totally surprised. I always expect that this was going to be a tough game.”

He is expected to hold another press conference at 5.00pm AEDT on Friday at the local Tamworth pub, the Longyard Hotel.

Mr Turnbull this afternoon took on Mr Joyce’s ministerial responsibilities, being sworn in as Minister for Agriculture and Water resources, a portfolio he described as “not entirely unfamiliar to me”. Senator Canavan was also returned to cabinet as resources minister.

Mr Turnbull said he would hold onto the agriculture portfolio until “the people of New England have had their say”.

In terms of Senator Nash’s portfolios, Communications Minister Senator Mitch Fifield will act as Minister for general communications and infrastructure and Transport Minister Darren Chester will act as Minister for regional development, Territories and local government.

Like Mr Joyce, Greens Senators Larissa Waters and Scott Ludlam were disqualified from parliament over holding New Zealand dual citizenship.

Nationals Senator Fiona Nash and One Nation Senator Malcolm Roberts were found to be ineligible for election due to holding British citizenship.

Nick Xenophon, whose citizenship status with Britain was in question, and Matt Canavan, who was made an Italian citizen, survived the High Court’s decision.

“Today the High Court, sitting at the Court of Disputed Returns upon references from the Senate and the House Representatives, unanimously held that each of Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts, the Hon. Barnaby Joyce MP and Senator the Hon. Fiona Nash was ‘a subject of a citizen ... of a foreign power’ at the time of his or her nomination for the 2016 federal election,” read the judgement.

“The Court unanimously held that neither Senator the Hon. Matthew Canavan nor Senator Nick Xenophon was disqualified by reason of that provision.

Labor has reacted to the decision with satisfaction, with Opposition frontbencher Anthony Albanese declaring the ruling an embarrassment for the government.

“They’ve lost the leader of the National Party, they’ve also lost the deputy leader of the National Party, and Barnaby Joyce have been humiliated,” he told Sky News.

The High Court has ordered a recount of ballots to fill the now vacant seats.

The politicians, dubbed the “citizenship seven” were referred to the High Court after Greens senator Scott Ludlam was alerted in July over his dual citizenship status with New Zealand.

In Australia, the constitution bans politicians from sitting in parliament if they hold citizenship to another country.

But no one — even some of Canberra’s most seasoned insiders — was confident which way the High Court would swing its gavel.

Before the decision was handed down, Mr Joyce was seen furiously signing ministerial documents in the last sitting of Question Time. Onlookers saw it as a sign he was confident of a win, or “trying to get his ducks in a row”.

The government argued Mr Joyce and four others were unaware they had inherited citizenship of another country and took steps to renounce it as soon as they realised.

The two excluded from the government’s fight were Greens Senator Scott Ludlam and One Nation’s Malcolm Roberts.

Mr Ludlam was born in New Zealand, while Indian-born Mr Roberts had failed to renounce his UK citizenship, the High Court found in September.

Senators Matt Canavan, Fiona Nash and Mr Joyce were born in Australia but were citizens by descent.

“The constitution as everybody understood it up until now was that if you had foreign citizenship, well that was it: you were out,” Constitutional law expert Professor Anne Twomey told Sky News.

“The obligation is on you to sort it out. There’s still a very strong argument that at least on the basis of the law as we knew it ... people should have done due diligence, and he (Barnaby Joyce) didn’t.”

WHAT THE HIGH COURT RULED, IN A NUTSHELL

* Deputy Prime Minister Barnaby Joyce; deputy Nationals leader Senator Fiona Nash; former Greens senators Scott Ludlam and Larissa Waters; and One Nation senator Malcolm Roberts were “a subject or a citizen ... of a foreign power” at the time of their nomination for the 2016 federal election.

* Each was therefore incapable of being chosen or of sitting as a senator or a member of the House of Representatives by reason of section 44(i) of the constitution.

* Nationals senator Matthew Canavan, who stood down from cabinet, and independent Nick Xenophon were not disqualified from nomination for the election.

* Confirmed the ordinary textual meaning of s44(i) that an Australian citizen is not be prevented from standing for parliament where it can be demonstrated that he or she took all steps reasonably required by foreign law to renounce his or her citizenship of a foreign power.

* Rejected the commonwealth argument that s44(i) was subject to an implied mental element in relation to the acquisition or retention of foreign citizenship.

* There should be a by-election for the NSW seat of New England.

* The vacant Senate seats will be filled by a special count of ballot papers from the 2016 election.

WHAT WILL HAPPEN TO T HE CITIZENSHIP SEVEN

BARNABY JOYCE: With his election now ruled ineligible, Joyce will be forced to a by-election in his NSW seat of New England. He is likely to retain the seat. But the government, which has a majority of just one seat, will have six weeks of anxiety and distraction. Independent Tony Windsor could put up a solid fight if he decides to run again. A by-election loss would deliver minority government. Labor has advice his post-election ministerial decisions are open to legal challenge.

FIONA NASH: Nash’s Senate seat would ordinarily go to the next person on the NSW coalition ticket, who is this case is the Liberal Hollie Hughes. But the Nationals may insist on one of their own taking it, which would likely require Hughes to take up the seat, resign and cause a casual vacancy. Hughes is disqualified from sitting at the moment because she holds a government job at the Administrative Appeals Tribunal.

MATT CANAVAN: He will remain in parliament and is expected to get his cabinet post back. If he lost, the next candidate on the Queensland Liberal- National Party ticket was Liberal Joanna Lindgren.

MALCOLM ROBERTS: His seat will go to the next candidate on the Queensland One Nation ticket, Fraser Anning. Anning was facing bankruptcy proceedings which would have ruled him out of the seat, but the case has been dropped.

NICK XENOPHON: Xenophon was going to quit the parliament anyway, but as he won the case, there will be a casual vacancy to be filled by NXT. At least three other senior NXT members are interested.

LARISSA WATERS: Waters has already resigned from the Senate. Because she was disqualified she will be replaced by the next person on the Queensland Greens ticket, former Democrats senator Andrew Bartlett.

SCOTT LUDLAM: Ludlam has also resigned. The next candidate on the West Australian Greens ticket is 23-year-old student Jordon Steele-John.

— With additional reporting by AAP

More related stories

Original URL: https://www.news.com.au/national/politics/judgement-day-for-citizenship-seven/news-story/3e7ed5f5e958a0aff422c49fe86aca97