The great Labor citizenship sham exploded yesterday in the High Court.
Labor’s litany of assurances over eight months about the eligibility of its MPs was exposed as utterly false — the upshot being four new by-elections, with the Turnbull government having an outside chance of winning an extra seat.
Bill Shorten’s credibility has been shredded. He is exposed after using a false argument to protect his own side from properly honouring constitutional obligations. Having comprehensively outplayed Labor on the dual-citizenship issue, Attorney-General Christian Porter charged Shorten and his legal affairs spokesman Mark Dreyfus with adopting defences they knew to be wrong.
Labor MPs who were dual citizens have been sitting in the parliament, drawing salaries, claiming entitlements, denying they were ineligible, refusing to refer themselves to the High Court and operating under the firm guidance of Shorten and Dreyfus.
Porter ridiculed as “utter rubbish” the justification that Shorten and each of the Labor MPs offered yesterday — that Labor was caught out because the High Court had enunciated a new legal position in the test case when it found against Labor senator Katy Gallagher.
“This decision is not a reinterpretation or a change of the law,” Porter said yesterday, assaulting Labor’s excuse for months of denial.
“It is a crisp and crystal-clear clarification of the law as it was stated in the Canavan decision in October of last year.”
Porter said yesterday while Shorten was under no obligation to release Labor’s legal advice, “he should at least tell us who the lawyers were in the interest of consumer protection”.
He said the claims made by Dreyfus had been “deliberately designed to mischaracterise High Court decisions and mislead the Australian people.”
After the High Court decision, Porter said the other four MPs who were dual citizens at the time of their nomination “must resign” and “they must resign today” and that Shorten could no longer avoid the issue.
The result was that at lunchtime yesterday, Labor MPs Justine Keay, Josh Wilson and Susan Lamb, along with Centre Alliance and former Nick Xenophon Team MP Rebekah Sharkie, announced they would resign and recontest the by-elections.
This ended eight months of Shorten claims that no Labor MP was ineligible as a dual citizen, that Labor had a strict vetting process and that he could “guarantee” no Labor MP was compromised.
Labor had been prepared to refer its MPs to the High Court only if the government matched this by referring some of its own MPs.
What is the basis of Porter’s claim that Shorten and Dreyfus were offering defences that were wrong and that they knew to be wrong?
It lies in the High Court decision. The court said in the Gallagher case: “The Attorney-General’s primary submission is clearly correct. It reflects the law as stated in Sykes v Cleary and Re Canavan.”
In short, as Porter argued yesterday, the court restated in the Gallagher case the position it had previously stated. The pivotal issue was Gallagher’s defence that because she had taken all reasonable steps to renounce British citizenship, this would suffice to meet the constitutional requirement. The court rejected this argument.
Addressing this, Porter said: “We have now gone through an arduous and agonising process over six months to confirm what we knew and that is this: if a person is a dual citizen of another country after the date of close of nominations, then that person is ineligible to sit in the commonwealth parliament and the only existing exception to that very clear line that the High Court drew in October of last year is if the foreign country makes it impossibly difficult to renounce.”
Britain is not such a country. The point is the “reasonable steps” defence relates only to jurisdictions that make renouncing of citizenship extremely difficult.
Porter was extremely confident in this case because he was guided by the High Court’s previous judgments. In its Gallagher judgment, the court said: “It is not sufficient that a person in her position has taken all steps reasonably required by the foreign law … for the exception to s44 (1) to apply.”
The court said the foreign jurisdiction must operate to “irremediably” prevent the renouncing of citizenship. Referring to the frequent defence of Gallagher made by Dreyfus on the grounds she had taken the “reasonable steps” required, Porter said: “That was wrong, he knew it to be wrong, he maintained that position over the intervening six months and it was absolutely wrong.”
Yet it was convenient because it served as Labor’s justification for not acting. “Bill Shorten said the Labor Party had ‘extremely stringent vetting processes’,” Porter said. “That is absurdly wrong and it was maintained during that intervening six months.”
He said the Gallagher judgment “confirms the law as we have known it to be since last October”.
This is why Porter, as Attorney-General, opposed the government using its numbers earlier to impose on Labor and refer Labor MPs to the High Court. He believed this was unnecessary — far better to await the court’s decision and see Labor driven to its humiliating accounting process. This is exactly what has happened.
Many senior ALP figures believed their own propaganda on the dual-citizenship question. The reality is that Labor sought to prevaricate and deny its obligations. It has been a shoddy episode. The MPs involved who announced their resignations yesterday are still in denial. Their explanations yesterday about the High Court decision are false and misleading.
In the end Labor will probably be re-elected in all by-elections. This includes the Perth by-election caused by Tim Hammond’s earlier, separate resignation for family reasons. The government’s best chance is in Mayo but that would mean taking a seat from the Centre Alliance, not Labor.
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