Dual Citizenship

[Alinta]

“We have a strict vetting process. There is no cloud over any of our people, let’s be straight here,” he said in ­August in Sydney.
Mr Shorten repeated the line whenever he was asked about a Labor politician’s ­potential foreign citizenship.

He even rejected Prime Minister Malcolm Turnbull’s request in August to refer all politicians with any questions over their citizenship status to the High Court.

While agreeing it was “manifestly in the national ­interest” for the High Court to determine eligibility, Mr Shorten wrote: “The Labor Party has the strictest processes in place to ensure all candidates are compliant with the Constitution prior to their nomination for election. Therefore, I politely decline your offer.”

OK, I get all that. He took legal advice and commented on that basis in August 2017.

BUT....following the HC Canavan decision in October 2017, Gallagher was referred to the Court of Disputed Returns. THIS was the point at which Shorten should have seen fit to modify his previous comments. Of course it was ultimately up to the HC to test the "strict vetting process", but he knew there was the possibility it was not watertight...... and as we now know following the HC Gallagher decision, the process was indeed flawed.

So, egg on face.....YES, absolutely.

[cods]

and they are still getting paid alinta...they have resigned....and he hasnt told them too...

imagine if they were libs??????

[mellie]

and they are still getting paid alinta...they have resigned....and he hasnt told them too...

imagine if they were libs??????

True, but doubt Labor are the only party doing it.

Perhaps a thorough citizen re-screen is in order for all politicians?

[Rorschach]

LOL
One Nation asked for that back in the 90's when Heather Hill was booted thanks to Labor and then all parties closed ranks on PN and refused... they all knew that they had dodgey members.

[mellie]

LOL
One Nation asked for that back in the 90's when Heather Hill was booted thanks to Labor and then all parties closed ranks on PN and refused... they all knew that they had dodgey members.

Well perhaps it's worth bringing to the table.

[Rorschach]

LOL
One Nation asked for that back in the 90's when Heather Hill was booted thanks to Labor and then all parties closed ranks on ON and refused... they all knew that they had dodgey members.

[Rorschach]

Citizenship debacle: Labor cries foul but Shorten’s dead wrong
The Australian
12:00AM May 10, 2018
Chris Merritt

Labor’s Katy Gallagher deserves not one second of pity. Bill Shorten’s claims to the contrary — that the High Court changed the Constitution at her expense — are utterly wrong.

Gallagher acted unlawfully by nominating for the Senate while retaining British citizenship. That is no reason to change section 44 of the Constitution so those with divided loyalties can have a say in governing Australia.

Now, more than ever, a nation of migrants should see the wisdom behind this provision, which places great value on a national parliament where everyone has a single, undivided loyalty.

Watering down section 44 would be an affront to those who have chosen this country above all others and now see themselves as unhyphenated Australians.

Gallagher’s argument before the court sounded like a whinge: she tried to renounce her British nationality before the 2016 election but the UK bureaucracy was too slow. The fact that she finally complied with this precondition for election — two weeks after she was elected — does not make this a close run thing. She missed by a mile.

The constitutional ban on dual citizens standing for parliament operates from the day they nominate — not polling day and not the day on which the polls are declared.

Gallagher nominated for election on May 31, 2016 — which was 2½ months before her renunciation of British citizenship went into effect.

Those who claimed yesterday the High Court had tightened the ban on dual citizens were dissembling. The deadline for complying with section 44 has been clear for decades.

In a 1992 case known as Sykes v Cleary, the critical time was the date of nomination. The court made the same point in last year’s citizenship case.

It was last year’s ruling, not yesterday’s, that removed any remaining doubts about the “reasonable steps” exception to section 44. It does not help candidates like Gallagher if they do everything they consider to be reasonable yet still fail to renounce foreign nationality.

The exception, thankfully, applies in narrow circumstances and is designed to ensure other countries cannot use overreaching citizenship laws to prevent people in Australia standing for federal parliament.

It applies when candidates have done everything reasonably required of them by the foreign law to renounce foreign citizenship; and that foreign law has “irremediably” made it impossible to do so.

British law imposes no such restriction. Gallagher just left it too late.

[Rorschach]

Two more Labor MPs face questions over their citizenship
The Australian
12:00AM May 12, 2018
Ben Packham

Constitutional experts have warned that the fallout from parliament’s citizenship crisis isn’t over, amid fresh questions over the status of two Labor MPs — Emma Husar and Emma McBride.

Parliament’s citizenship register shows both MPs sought to renounce foreign citizenship, but no evidence is provided that their ­applications were received or acted upon.

Constitutional lawyer George Williams predicted “chaos” at the next election, especially if the result was close, as candidates and political parties challenged opponents on the basis of alleged dual citizenship.

The major political parties have ramped-up their vetting of candidates in the wake of the citizenship crisis, which this week claimed a further five MPs. Particular scrutiny will fall on current MPs whose citizenship register declarations appear incomplete.

Professor Williams, the dean of law at the University of NSW, said there would be “great scope for litigation and mischief-making” under section 44 of the Constitution, with election results challenged on the grounds of alleged dual citizenship.

“We are talking about large numbers of people, many of whom will not have the capacity to do any vetting,” he said. “A lot of sloppiness is going to be involved, and I do not have any doubt that there will be large numbers of candidates at the next election who are ineligible to run.”

Ms Husar, the member for the marginal Western Sydney seat of Lindsay, sent a letter to the Polish consul-general on May 24, 2016, acknowledging she may have ­acquired Polish citizenship through her paternal grandfather. In the letter, sent 16 days before the close of nominations for the 2016 election, she renounces “all allegiance, obedience or adherence to Poland, and renounce Polish citizenship”.

However, there is no evidence provided from the Polish government acknowledging receipt of the letter, or confirmation of the renunciation of her citizenship.

Ms McBride, the member for the marginal NSW seat of Dobell, posted a signed “Declaration of Alienage” form renouncing her Irish citizenship, dated August 9, 2013 — days before the close of nominations for the 2013 election.

Her entry states that “Pursuant to Section 21 of the Irish Nat­ionality and Citizenship Act 1956, my Irish citizenship automatically ended upon lodgement of the Declaration of Alienage”.

There is no confirmation provided from the Irish government that the form was lodged.

The High Court ruled this week that former Labor senator Katy Gallagher had been ineligible under section 44 of the Constitution to stand in the 2016 election because she was also a British citizen at the time of nomination. Labor MPs Susan Lamb, Justine Keay and Josh Wilson and Centre Alliance MP Rebekha Sharkie resigned following the verdict, acknowledging their circumstances were the same as Ms Gallagher’s. The ruling and subsequent resignations have set up a “Super Saturday” of by-elections.

[Alinta]

Based on info in the above post, sounds to me that McBride and Husar are currently ineligible. Am guessing two more candidates for the Super Saturday By-elections.

[Rorschach]

Power grab by the political class thwarted by Turnbull
The Australian
12:00AM May 19, 2018
Paul Kelly

In a deluded judgment the political class has made a grab for power and reached an implied decision about dual citizenship — it wants a sweeping referendum to remove from the Constitution the disqualification criteria for MPs and vest that power in itself.

The Turnbull government has acted swiftly this week to kill that proposal. It will not countenance a referendum on section 44 (1) of the Constitution, the provision that bans dual citizenship, as recommended by the Joint Standing Committee on Electoral Matters with representatives from both major parties.

The government’s mind was set against a referendum before the committee’s report and just as set against any referendum after the report. This is a flawed document but revealing of an extraordinary and arrogant mentality. It shows many and even perhaps most MPs have drawn the entirely wrong conclusions from the dual citizenship fiasco of the past 10 months and the by-elections it has produced.

There is little or no sympathy in the higher reaches of the government to change the Constitution to allow dual citizens to sit in parliament or to create a process allowing this outcome. The idea that multicultural Australia has been compromised by this provision, and must falter if it is retained, is absurd.

Attorney-General Christian Porter is opposed to any referendum. Finance Minister Mathias Cormann rejected it as soon as the report was released. Malcolm Turnbull said the government would not seek a referendum, that it would not pass and that the obligation must remain with MPs to ensure they were not citizens of another country. Any referendum in the current political climate is little short of madness. But there is a bigger issue — this is a bad idea and deserved to be dismissed by the government.

The Australian public will be unimpressed by this report and its recommendations. It is a sustained argument for more power for politicians to solve the dual citizenship problem and justify this as being in the public interest. In this sense, it is a con job. The committee, while expressing hope for a referendum’s success, was realist enough to concede it might fail or might not be put. This understates the situation — a referendum would have zero prospects.

Consider the reality — for the past eight months too many MPs have been in denial of their responsibility, their incompetence has created the by-election traumas yet the attitude of the Joint Standing Committee is: let’s solve the problem by removing the dual citizenship restriction from the Constitution, reward the offenders and give the parliament the entire discretion to sort the problem.

University of Sydney law professor Anne Twomey captured the essence of the issue in her submission to the committee: “My personal view is that there is no necessity to amend s44 (1) of the Constitution. The current problem was not caused by a matter of principle but rather by the fact that some members and senators did not make the effort to inquire into their circumstances and take the necessary steps at the appropriate time to avoid disqualification.”

Twomey told The Australian the committee report is “geared heavily” towards the problems section 44 creates for candidates and MPs. It fails to provide “sufficient balance” by outlining the reasons for the existing disqualifications including the dual citizenship provision. She brands its core recommendation as “potentially dangerous”.

Among all the MPs involved, only one filed a minority report. That was Liberal MP Ben Morton, formerly the West Australian Liberal Party director. His is the voice of common sense. Morton said: “I believe that there has been no compelling argument to remove the requirement that members of parliament should only be Australian citizens and hold no other ­citizenship. Like many others, I will campaign against any ­constitutional change that attempts to remove from the Constitution the disqualification of dual citizens from being members of parliament.

“The committee recommends that the parliament delete from the Constitution the setting of disqualifications of members of parliament. On this point I fundamentally disagree. The Constitution is the correct place to deal with the disqualification of members of parliament and not the parliament itself as proposed.

“By adopting this position the committee is effectively asking the Australian people to remove their direct say in who should be disqualified as a member of parliament and to give that deter­mination to the politicians themselves. Not only should this not happen, it is extremely unlikely to pass in a referendum.”

That no other MP took this stand reveals the mentality of the committee chaired by Liberal senator Linda Reynolds. The report offers many valuable insights and Turnbull has called it a “very good report”. Yet its conclusions are flawed and self-serving. It has fallen for the oldest trick when debating constitutional issues — being mesmerised by constitutional lawyers focused on how to “improve” our Constitution.

Twomey says: “There are obvious problems with section 44 but handing complete control to parliament is not the answer. What is to stop one side of politics with control of both houses from imposing disqualifications that have a more serious impact on their opponents?

“The risk of abuse means that as a matter of prudence parliament should not have ­complete control over disqualification.”

The report significantly exaggerates the problems arising from the dual citizenship ban for MPs. It says the constitutional provision “imposes obligations on potentially half of all Australians which would prevent them from what should be their fundamental right in a democracy — nominating to stand for election”. The committee even claims section 44 “creates two classes of Australian citizens for the purposes of engaging in representative democracy”.

This is a descent into polemic. Many of the MPs in trouble were British citizens and UK procedures hardly pose an insurmountable obstacle to renouncing British citizenship. In her submission Twomey provided a better grasp of the real world: “Now that they are more conscious of the rules and the ramifications, one would expect that candidates and political parties would be more diligent in the future so that such problems would rarely arise again.

“While in some circumstances it may be difficult to renounce a foreign citizenship and problems may arise when documentary evidence has been lost due to war and displacement, such circumstances are likely to fall within the ‘reasonable steps’ exception acknowledged by the High Court.”

Morton makes a similar point, saying the High Court is emphatic: the principle it has enunciated is that “an Australian citizen not be irremediably prevented by foreign law from participation in representative government”. He says: “The committee’s report incorrectly suggests that a whole range of people will be forever disqualified from seeking election as a member of parliament. Section 44 and the decisions of the High Court have placed hurdles for some to ensure they are not disqualified. However, these hurdles are not irremediable barriers, as the committee has suggested.”

Simon Cowan from the Centre for Independent Studies told the committee: “The obligations of s44 in my view are not an onerous burden for the vast majority of the population and having such a provision in our Constitution sends the message very clearly that politicians should have unequivocal and undivided loyalty to Australia and its people. This is neither too great a price to pay nor an outdated idea.”

The Prime Minister said he felt the Australian public expected politicians “to make sure that our paperwork is in order before we nominate”. He’s right. There are problems with the Constitution but there are even greater problems with politicians who don’t honour the provisions properly.

Twomey says a number of the problems highlighted in the committee report are “overblown”. She says: “Yes, some sacrifices have to be made to qualify for election but election also brings great privileges. Some perspective is needed.”

The committee says it makes “no judgment” on the dual citizenship issue itself. A reading of the report shows this is technically true but disingenuous. Its sympathy for removal pervades the report. Its core recommendation is for a referendum to repeal sections 44 and 45 of the Constitution, thereby eliminating the restriction on dual citizenship for MPs.

Its alternative is a constitutional amendment to insert the words “until the parliament otherwise provides”, which transfer the decision-making power entirely to the parliament.

The report says a public debate should follow as a prelude to new laws being passed governing all matters of disqualification including dual citizenship. In short, let the politicians decide! So extreme is the report that the committee finds there is “no viable alternative” but a referendum along one of the two above lines.

This is fatalistic and self-defeating. It is also something else — a grab for power by the political class that has been so inept at meeting its constitutional obligations in this parliament and now wants those obligations to be terminated by a referendum.

The report’s distaste for the current dual citizenship restriction is manifest. The committee correctly points out that Australian citizenship did not exist at the time of Federation. It suggests section 44 “was drafted in haste”. Today multiple citizenship exists in Australia and is celebrated. It reflects a multicultural society where many citizens and their ­parents were born overseas. There is no requirement for single citizenship in any other facet of life — from the defence force to the ­judiciary.

The committee heard evidence that section 44 (1) was outdated — a product of the world of the 1890s — and no longer conformed to contemporary societal norms. This is a half-truth. The committee seemed uninterested in the counter arguments.

Yet in many Western democracies today the pivotal test for MPs is their commitment to national sovereignty — in this case their commitment to the welfare of Australian citizens and to Australia’s national interests, not necessarily to global citizenship or cosmopolitan norms. Taking two priority policy areas as examples — people movements to this country and climate change measures — much of these policy disputes are driven by the precise question of MP loyalty: is their prime obligation to Australian or to international concerns and interests?

This tension is brilliantly illustrated by British writer David Goodhart, founding editor of Prospect magazine, in his recent book, The Road to Somewhere, which ­argues Britain and other democracies are now divided along Anywhere/Somewhere lines. The Anywheres are the cosmopolitan elites in business, finance, politics, education and cultural sectors whose views are anchored in global norms while the Somewheres value place, patriotism, security, tradition and common values.

Goodhart says the cosmopolitans have been too successful in getting their way, provoking a political backlash. How comfortable would the Australian public be with a prime minister who was a dual Australian-American citizen or a dual Australian-Israeli citizen? This is not to argue dual citizenship cancels national loyalty. That would be absurd. It is, however, to argue that being an MP, minister or prime minister, in a world dominated by national sovereignty/international norm disputes, makes exclusive Australian citizenship a prudent requirement — no more, no less.

This is not a sellout to Trump­ian “America first” sentiment or to Brexit or to growing nationalism in many jurisdictions. It merely says the existing dual citizenship restriction retains saliency in the world of today.

The central mistake in the report of the standing committee is that it puts the cart before the horse. It demands a referendum but says if the referendum is not obtainable there are a series of alternative, mainly administrative steps, required to mitigate the detrimental impact of section 44. These latter proposals should have come first, another point made by Morton. Many are sensible and desirable.

Cormann has announced the government will now improve the nomination process by accepting these proposals and seeking to implement them as soon as possible. This means candidates would provide relevant data and their family citizenship history to the Australian Electoral Commission upon their nomination.

One consequence is that the five by-elections now due are likely to be delayed by a few weeks to allow the new procedures to be implemented.

Turnbull said the government would accept the Constitution as it was written and interpreted by the High Court. The job was to ensure MPs “get your act together”. Other steps recommended by the committee were supporting the AEC to develop online assessment tools; offering extra support to independents and minor parties; exploring with foreign governments expedited or automatic citizenship renunciation.

Morton said there was one procedural constitutional change that could be desirable — moving the point at which disqualification takes effect from nomination to the point of being sworn in as an MP. There was much support for this reform. It would mean only those actually elected would have an obligation to deal with disqualification conditions. At the 2016 election there were 1625 candidates but only 225 were elected in the house and Senate double ­dissolution.

This reform would significantly resolve several concerns raised by the committee. It would be a constitutional change related to timing, not principle or power. It would not transfer the essential issue of disqualification determination from the Constitution to the parliament.

The Joint Standing Committee got hung up on the idea of “exclusion” as a result of section 44 (1). By calling for a big constitutional reform it has over-reached and overlooked the problems inherent in its own recommendations.

The committee should have accepted the existing constitutional restriction on dual citizenship and sought to better manage the real problems around its application, be they constitutional or administrative. The most significant of these, as the committee identifies, is that section 44 (1) can allow foreign law to create dual citizenships “without the knowledge and consent of Australian citizens”.

It is noteworthy, as the report points out, that when the Constitution was drafted, delegates considered an amendment that would have inserted the words “until the parliament otherwise provides” into section 44. That proposal was defeated 26 votes to eight.

The decision was the Australian people, not parliament, would have the ultimate say. Removing this power from the people is highly dubious as a solution and a serious obstacle to the passage of any referendum — as the Turnbull government recognises.