Citizenship revenge: Labor targets rebel senator Fatima Payman
Senior Labor figures are raising Fatima Payman’s Afghan citizenship as a risk to her remaining in the Senate because of a potential breach of section 44 of the Constitution, after she quit the ALP.
Senior Labor figures are raising Fatima Payman’s Afghan citizenship as a risk to her remaining in the Senate because of a potential breach of section 44 of the Constitution, after she quit the ALP and left the door open to forming her own political party.
Senator Payman on Thursday declared she would joint the crossbench as an independent senator due to her concerns about Labor’s policy on Palestine, but refused to rule out establishing a political party to contest ALP-held seats with large Muslim populations.
“Watch this space,” Senator Payman said.
Labor ministers fear an independent Muslim party could cost them up to six seats in western Sydney and have already started to mobilise branches and resources to defend traditionally safe ALP seats.
Senior ALP figures say Senator Payman could have questions to answer if someone referred her to the High Court, despite the party backing her as a Senate candidate ahead of the 2022 election.
Senator Payman’s statement on parliament’s register of qualifications – introduced following the 2017-18 citizenship crisis – confirms that she is a dual citizen of Afghanistan and Australia.
Peter Dutton labelled the citizenship concerns an “outrage” given Senator Payman had been preselected by Labor prior to the 2022 election.
“It’s pretty red hot if there is a constitutional issue and the Labor Party knew about it,” the Opposition Leader told Channel Nine on Friday.
“They’ve supported a member of parliament knowing that she wasn’t constitutionally able to sit in the parliament, which I think is an outrage. That’s quite different from some existing section 44 issues.”
But NDIS Minister Bill Shorten expressed his confidence in internal Labor Party processes and played down the reports senior Labor figures were raising he concerns.
“I’m sure that the West Australian Labor Party would have checked that out,” Mr Shorten said.
“Mate, you lost more members of your political party under the Constitution than I think Collingwood was awarded unfair free kicks in the last footy game.”
Earlier in the interview, Mr Dutton said Senator Payman’s defection to the crossbench was indicative of division within the Labor Party.
“There’s general disquiet in the Labor Party at the moment … and if you can’t govern yourself, you can’t govern the country,” Mr Dutton said.
“For the Labor Party, they’ve got a huge split within their ranks. You’re seeing it with the anti Israel stance at the moment.”
Senator Payman’s resignation and move to the crossbench on Thursday sparked a political crisis for Anthony Albanese on the final parliamentary sitting day before the five-week winter break.
Declaring she had felt intimidated on many fronts, including being “escorted” to the Prime Minister’s office, Senator Payman resigned after refusing to compromise on her support for recognising Palestinian statehood.
The resignation came hours after four pro-Palestine supporters breached Parliament House’s security and unfurled anti-Semitic banners from the front entrance and coat of arms. The protest immediately sparked a review by the Australian Federal Police into the building’s security arrangements.
The three men and one woman, who were banned from Parliament House and released on bail in Canberra on Thursday afternoon, were charged with trespassing on commonwealth land and face a maximum fine of $2750.
The Australian can reveal Renegade Activists, the group behind the protest, met Senator Payman just over a week ago. Renegade Activists spokesman Jacob Grech said the group wanted “to give as much support to Fatima” as it could and “show her that her stance is appreciated”. “Our colleagues met with her the day before she crossed the floor (to support the Greens’ motion for the immediate recognition of Palestine as a state),” Mr Grech said.
The group would not confirm whether the senator’s intention to break from the ALP or its plans to stage the protest were raised in the meeting.
Senator Payman, who was born in Afghanistan in 1995 before fleeing Taliban rule and resettling in Australia with her mother in 2003, was granted Australian citizenship in 2005. In her 2022 register of qualifications statement, Senator Payman said she had received legal advice confirming that she was eligible to sit in the Senate because she had taken reasonable steps to renounce her Afghan citizenship.
“In light of the situation in Afghanistan and the impossibility of progressing my application to renounce Afghan citizenship following the recent takeover by the Taliban, I am not disqualified from sitting as a senator and so I can nominate as a candidate,” Senator Payman wrote.
Senator Payman, whose resignation from the Labor government triggered a wave of anger inside party ranks, said she approached the Afghanistan embassy in October 2021 to renounce her Afghan citizenship.
“The embassy advised me that there is no communication between it and the new Taliban government in Afghanistan. As such, the embassy told me that my application for renunciation could not (be) finalised in Kabul (as required under pre-Taliban Afghan law),” she wrote.
“There is nothing further that can be done to progress my renunciation of Afghan citizenship, and it would be very dangerous for me to return to Afghanistan or to attempt to engage with the Taliban regime directly.”
During the 45th parliament, seven by-elections were called following resignations of lower-house MPs and declarations of ineligibility triggered by section 44. Eight senators including Katy Gallagher were forced to resign for holding dual citizenship.
Labor sources said they believed Senator Payman’s eligibility would likely need to be tested in the High Court.
They referenced a 2018 High Court full bench order in relation to Senator Gallagher’s case, with paragraph 45 outlining a potential issue for Senator Payman.
Chief Justice Stephen Gageler, Australia’s most distinguished constitutional lawyer who replaced Susan Kiefel last November, was involved in the Gallagher order. “An Australian citizen who has done everything reasonably within his or her power to renounce his or her citizenship of another country under the law of that country remains within the ambit of the disqualification expressed in s44(i) for so long as a process of renunciation provided for by the law of that country simply remains incomplete,” the High Court order said.
Senator Payman – considered an “accidental senator” following a record Labor vote in Western Australia – narrowly claimed the state’s sixth spot after weeks of counting following the 2022 election.
Labor-aligned pollster Kos Samaras warned that the fallout from Senator Payman’s resignation had made the situation worse for the government “in its red wall and of course in seats they will have to defend against the Greens”.
Mr Samaras said the western Sydney seats of Blaxland and Watson, held by cabinet ministers Jason Clare and Tony Burke, and the Victorian electorate of Calwell, represented by Maria Vamvakinou, had a high proportion of Muslim voters and were now at greater risk.
The Australian Federation of Islamic Council said it was the ALP’s lack of a “principled approach” to the Middle East conflict and not Senator Payman’s resignation that would hurt its electoral chances.
ALP national president Wayne Swan said the most fundamental lesson of Labor’s success and failures over 133 years was the party couldn’t win the battle of ideas without political unity.
“Senator Payman’s decision to place herself outside the party can only empower Labor’s opponents on the far right and on the left who have always opposed progressive foreign, economic and environmental policy,” Mr Swan.
Labor’s numbers in the Senate have been reduced to 25 while the crossbench has expanded to nine with Senator Payman’s resignation. The government must gain the support of the Coalition or the Greens and at least three crossbenchers in order to pass legislation through the chamber.
Despite crossing the floor to vote with the Greens on Palestinian statehood – which sparked her first short suspension from caucus before an explosive television interview led to her being suspended indefinitely – Senator Payman ruled out joining the minor party.
The 29-year-old said she had met with teal-style group The Muslim Vote on one occasion and supported what it was doing in seeking to increase the “political literacy” of the Muslim community. “I don’t have any intentions of collaborating with them, per se, and I haven’t thought about it,” she said.
The Muslim Vote said it would “support anyone who shares our principles of justice and fairness”.
Senator Gallagher rejected Senator Payman’s claim that the Labor Party could not represent modern Australia unless it allowed MPs to cross the floor.
“I disagree with that, and I think the caucus disagrees with that,” Senator Gallagher told ABC Radio.
“We have our process, so we have Caucus committees, we have Caucus itself, we have factional meetings, [all] where members of the Labor Party argue and can contest the ideas that are before us.
“There’s heaps of disagreement, and people bring their diversity and their own experience into those forums. We argue, we agree, and ultimately, we land on a position and that is how it works.”
Mr Albanese said the pro-Palestinian protesters at Parliament House should face the “full force of the law”, after public access to the building was restricted. He said the government supported peaceful protest, which had an important place in Australia, but “this was not a peaceful protest”.
Speaker Milton Dick said he was concerned about the security breach and asked AFP Commissioner Reece Kershaw for an investigation into the “unacceptable behaviour” and a wider review of the building’s security.
Mr Dutton said the protest was “designed to inflict fear and instil chaos in Australia’s society”.
Additional reporting by Jack Quail
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