We must end the uncertainty over politicians’ citizenship

The High Court of Australia in Canberra, which has opened a Pandora’s box and laid it at the feet of the Turnbull government.

The way things are going, without remedial action the federal parliament could become the most exclusive club in Australia with membership restricted to direct descendants of those who arrived on the First Fleet, or those who watched them from the shore as they landed. Malcolm Turnbull, who can trace his lineage back to a sailor by the name of Owen Cavanagh on the flagship HMS Sirius, would still be OK — assuming there is still a Coalition government for him to lead, and these days it is best not to assume anything. Also, this is not the way indigenous people wanted the issue of recognition resolved, but it could create the circumstances to provide a much more significant voice inside the parliament. Just kidding. Sort of.

A full-throttled campaign led by the prime minister on that issue would have been preferable, but it won’t be this Prime Minister who advocates it, although he may end up proposing another change to the Constitution that can safeguard future parliaments, and ensure that their make-up reflects Australia today, not Australia in 1788 and not in 1901. And that does not, nor should it, mean dual citizens would be eligible.

Dopey MPs aside, with its capital-B Black-letter ruling, the High Court has opened a Pandora’s box and laid it at the feet of the Turnbull government. With all due respect, your honours, this is a bloody nightmare. Turnbull has provided a process to deal with the fallout, but it is not a fix and certainly not a solution.

Unless the court, in adjudicating a complex case — such as that of Josh Frydenberg, say — takes the opportunity to “refine” its judgment from Friday, October 27, fixing it could require a change to the Constitution to allow prospective politicians born overseas or who are the children of migrants to be regarded as Australian, if they have taken steps to actively renounce any other citizenship, real or suspected, or would rule out as candidates those who had “activated” or knew of a foreign entitlement.

Constitutional law experts such as Anne Twomey have said it is possible the court’s latest ruling would disqualify people who had taken “reasonable steps” to renounce foreign citizenship, which threatens to leave other MPs, including Labor’s Justine Keay and Susan Lamb, vulnerable.

Keay has admitted her renunciation of British citizenship did not take effect until after the election last year. Labor refuses to concede it has a problem, despite the Black October decision, while the government is convinced the ruling means it is in trouble. The time for gloating has well and truly passed.

As flagged here last week, depending on the number of MPs ensnared, which side they are from, and which chamber they are in, there is now the real possibility of a general election before the middle of next year. The pressure — from the opposition, from media, from the public — would be too intense to resist.

While John Alexander’s status is under question now, he could be joined by others, including — or so the government hopes — even more Labor MPs. There is nothing like misery having lots of company. Regardless, a succession of by-elections, or even a super Saturday of by-elections involving predominantly Liberal or Nationals members of the house won’t cut it. Business and the economy would suffer from the uncertainty. Taxpayers and voters will likely demand the issue be resolved in one fell swoop and certainly the Liberal Party would struggle to fund a gaggle of mini-elections next year, which could result in a hung parliament and a full election the year after or — horror of horrors — months after, if the government crumbled.

The government could get away with a few by-elections if only Labor MPs were found to be non-compliant, given the fate of the government would not hinge on the results. It would be stunning if Pauline Hanson were ineligible.

Turnbull and his cabinet ministers were fully aware of the repercussions and possible consequences when they discussed the issue on Monday.

To suggest the 21-day period to allow MPs to declare is an attempt by him to forestall a leadership coup, as Penny Wong did on Tuesday, is silly. Wong has been channelling the delcons, whose repeated predictions that he would be gone by Christmas, followed by their increasingly hysterical efforts to make it happen, have been hampered by a chronic inability to do the math or to face the reality that there is no challenge nor is there a challenger. So the cannibalism continues.

Although there are criticisms of his handling of it, this crisis is not of Turnbull’s making. If blame needs to be laid, it should be at the feet of previous leaders, their off­ices or the parties’ federal directors in control when the “offenders” were preselected or elected. If Turnbull could resolve it tomorrow, so that it didn’t kick into next year, he would. Labor could prove it cared more about the parliament than the politics by speeding up passage of Turnbull’s process.

There are MPs who could need all the time allowed to gather the level of proof now deemed appropriate. What happens with MPs who are adopted? Or if the man they believe to be their father is not their father? Does that sound far-fetched or a bit nit-picky? Not really, not when you think someone born in Tamworth, NSW, is deemed to be a New Zealand citizen simply because a foreign government says so, or that the Melbourne-born son of a stateless Jew has to prove he is not Hungarian.

Even apparently straight­forward cases where all parents and grandparents were born in Australia can get bogged down if documentation is missing because it has been stolen during a robbery (as has happened) or destroyed.

If Alexander finds in the next couple of days his father did not renounce his British citizenship, the government could just squeeze in the by-election for Bennelong this year. If it takes longer and the news is bad, it will have to wait until early next year, meaning not only is the rest of this year a write-off, politically speaking, it means at least the early part of 2018 remains highly uncertain, and for Turnbull and his ministers, highly undesirable.