Barnaby Joyce in strife, legal experts say

If the Deputy Prime Minister is to save his political career, some of the nation’s leading constitutional lawyers believe he will need to do something that, to legal conservatives, might look like heresy.

They believe Barnaby Joyce will need to persuade the High Court to water down the strict ban it has previously imposed on dual citizens becoming members of parliament.

And, to do that, the leader of the Nationals might need to urge the court to engage in an exercise that, in other circumstances, he might have denounced as judicial activism.

The ban on dual citizens entering parliament draws its authority from section 44(i) of the Constit­ution and has two principal targets­: people who actively acknowl­edge allegiance to a foreign power, and those who are merely “entitled” to foreign citizenship.

It is this second category, which depends on an entitlement bestowed­ by another country, that has ended the careers of a series of politicians and threatens to truncate that of Mr Joyce, who recently learned he is also a citizen of New Zealand.

His survival may well depend on whether he can persuade the court to “read down” the plain meaning of the written words of this part of the Constitution.

And that, despite the confid­ence of the government, could be a tall order.

“On the track record of the High Court on section 44(i) of the Constitution, they have tended to read it quite strictly — in which case Barnaby is in strife,” said Anne Twomey, a professor of law at the University of Sydney.

She believed there was always a chance that the court could find some exception, “but on the whole, let’s just say I don’t have the same level of confidence as the Prime Minister in Barnaby surviving a High Court challenge”.

This is in line with the assessment of Roger Wilkins, a former secretary of the Attorney-General­’s Department, who said the court’s earlier decision in Sykes v Cleary had put all politic­ians on notice.

Like Professor Twomey, he believed­ there was a chance that the court might rule in favour of Mr Joyce but said, “they are more likely to go the other way and play a straight bat”.

“They are more likely to say ‘we gave you a way out in Sykes v Cleary’,’’ — a ruling that he said endorsed­ the need for politicians to renounce foreign citizenship, or at least take “reasonable steps” to do so.

The question for Mr Joyce will be whether, knowing his father had been born in New Zealand, his inaction amounts to a breach of the rule in Sykes v Cleary.

Patrick Keyzer of La Trobe University said the court was unlikely to “read down” section 44(i). He also found it extraordinary that the government’s support for Mr Joyce meant it was now “decrying literalism”.

Literalism is usually viewed as a conservative method of constit­utional analysis that gives priority to the literal meaning of the ­written text.

But, on that point, James Allan of the University of Queensland sides with the government and ­believes Mr Joyce can still win.

“I actually believe he has a chance,” Professor Allan said.

He believed many other members of parliament were likely to be caught by section 44(i) and this might prompt the court to try to “backtrack” from earlier rulings.

He also rejected the argument that the government favoured a departure from a literal interpretation of section 44(i).

This was because “on any kind of originalist interpretation you would not be treating Kiwis as a foreign power”, he said.

Professor Allan said that in 1901, when the Constitution came into force, New Zealanders and Australians would have believed they shared the same nationality — as British subjects.

He said that section 44(i) would have made sense at that time because­ it would not have been envisaged as applying to other parts of the British Empire.

“Now it applies everywhere and it’s backdated to the time when you first think about entering politics,” Professor Allan said.

“It’s crazy.’’