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Federal budget and dual citizenship: Katy Gallagher ruled ineligible – politics live Federal budget and dual citizenship: Katy Gallagher ruled ineligible – politics live
(35 minutes later)
The Coalition is really doubling down on the Bill Shorten needs to force his MPs to resign thing. Labor is still working out its next move. And so is Katy Gallagher. There is some pressure on her to move to the lower house, but then there are others who want to see her back in the Senate.
Penny Wong has already stated the party wants her back (in so many words)
It’s worth noting that if Rebekha Sharkie resigns, it is going to put even more pressure on the Labor MPs.
And right before question time too.
If anyone remembered or still cares about the budget, Scott Morrison is about 15 minutes out from his National Press Club address.
If we do go to a byelection in Braddon, Jacqui Lambie won’t be on the ticket:
Statement regarding the decision handed down by the High Court today. #auspol #politas pic.twitter.com/6A0rxYrTt3
Rebekha Sharkie has called a press conference for 12.45
For everyone asking ‘what about’ the government MPs who have questions over their citizenship status, it is complicated.
International citizenship law is varied and complicated and while not all MPs put forward their documents, we can’t force them. The government has the numbers in the house, and would need to refer its members. The high court has put a 30-day limit on when electors can challenge an election.
So in short, yes there are questions, but we can’t answer them for you, or force them to provide answers.
As I have just been reminded, the committee looking into section 44 is a joint committee. My apologies.
Barnaby Joyce says he would have had sympathy for the Labor MPs who look like being forced to resign, “if they had left when I did”.
Talking to Sky, he says once his ruling was done, Labor should have sent their MPs through as well.
And a handy reminder of what we are talking about:
Section 44 (i) of Australia's constitution bars "citizens of a foreign power" from serving in parliament, including dual citizens, or those entitled to dual citizenship. But the provision was very rarely raised until July 2017, when the Greens senator Scott Ludlam suddenly announced he was quitting parliament after discovering he had New Zealand citizenship.
That sparked a succession of cases, beginning with Ludlam’s colleague Larissa Waters, as MPs and senators realised their birthplace or the sometimes obscure implications of their parents’ citizenship could put them in breach. Unlike Ludlam and Waters, most of those whose dual citizenship was called into question did not immediately quit. 
By October, seven cases had been referred by parliament to the high court, which has the final say on eligibility. They were Ludlam and Waters; the National party leader Barnaby Joyce, deputy leader Fiona Nash and minister Matt Canavan; One Nation’s Malcolm Roberts; and independent Nick Xenophon.  
The court found that five of the seven had been ineligible to stand for parliament, exonerating only Canavan and Xenophon. That meant the senators involved had to be replaced by the next candidate on the ballot at the 2016 federal election, while the sole lower house MP – Joyce – would face a byelection on 2 December in his New South Wales seat of New England. Joyce renounced his New Zealand citizenship and won the seat again. 
After the court ruling the president of the Senate (equivalent to the Speaker in the lower house), the Liberal Stephen Parry, also resigned on dual citizenship grounds. The shaky majority of the governing Liberal/National coalition was further threatened when MP John Alexander quit, triggering a byelection in his Sydney seat of Bennelong – which he later won. In the meantime, independent Tasmanian senator Jacqui Lambie became the next casualty. David Feeney and Katy Gallagher NXT senator Skye Kakoschke-Moore soon followed. 
The loss of the two lower house MPs briefly cost the government its majority, before Joyce and Alexander both re-won their seats in the byelections. The government has agreed with Labor that all MPs and senators must now make a formal declaration of their eligibility, disclose foreign citizenship and steps to renounce it. But the constitution cannot be changed without a referendum, which have a poor record of success. More likely, future representatives will have to abide by the strict interpretation of the high court.
There is a senate committee which is looking into how they fix the section 44 issue. It is due to report next week.
The obvious (and only way, really) is a referendum. It is in the constitution. The constitution can only be changed by referendum.
However there is some chatter that there is another fix/bandaid in the works, which would improve vetting processes. We will see.
The Coalition is really doubling down on the ‘Bill Shorten needs to force his MPs to resign’ thing.
From Christian Porter and Christopher Pyne’s statement:From Christian Porter and Christopher Pyne’s statement:
While Bill Shorten had many opportunities to refer each of his three Labor Members to the High Court and was urged to do precisely this to avoid unnecessarily politicising this issue, he repeatedly failed to do the right thing and make these referrals. While Bill Shorten had many opportunities to refer each of his three Labor members to the high court and was urged to do precisely this to avoid unnecessarily politicising this issue, he repeatedly failed to do the right thing and make these referrals.
The situation now is that any referral to the High Court of any of these Members would do no more than cause a further delay and expense to the taxpayer before reaching a conclusion that now is beyond doubt. The time for the referral of this group has passed and the only course of action is their immediate resignations to allow for by-elections to be held as soon as possible. The situation now is that any referral to the high court of any of these members would do no more than cause a further delay and expense to the taxpayer before reaching a conclusion that now is beyond doubt. The time for the referral of this group has passed and the only course of action is their immediate resignations to allow for byelections to be held as soon as possible.
While it is never too late to do the right thing, it is now clear that both Bill Shorten and his shadow Attorney-General, Mark Dreyfus, have deliberately mischaracterised the application of previous High Court decisions to their own Members of Parliament and have misled Australians for months as part of a cynical delaying tactic. While it is never too late to do the right thing, it is now clear that both Bill Shorten and his shadow attorney-general, Mark Dreyfus, have deliberately mischaracterised the application of previous high court decisions to their own members of parliament and have misled Australians for months as part of a cynical delaying tactic.
Bill Shorten initially claimed that none of his MPs were dual citizens because of Labor’s ‘extremely stringent vetting process’ (Bill Shorten press conference 21 August 2017; The Australian 21 August 2017) and that the difference between Katy Gallagher and the cases of Barnaby Joyce and Fiona Nash were as different as ‘night and day’ (Canberra Times, 5 December 2017).Bill Shorten initially claimed that none of his MPs were dual citizens because of Labor’s ‘extremely stringent vetting process’ (Bill Shorten press conference 21 August 2017; The Australian 21 August 2017) and that the difference between Katy Gallagher and the cases of Barnaby Joyce and Fiona Nash were as different as ‘night and day’ (Canberra Times, 5 December 2017).
Mr Dreyfus claimed Ms Gallagher ‘…took the reasonable steps that the High Court has spoken of in repeated decisions’ (Sydney Morning Herald, 10 December 2017). Dreyfus claimed Gallagher ‘… took the reasonable steps that the high court has spoken of in repeated decisions’ (Sydney Morning Herald, 10 December 2017).
These statements were deliberately designed to mischaracterise High Court decisions and mislead the Australian people and what is now going to be tested is Mark Dreyfus’s claim that ‘…Labor, care about the constitutional legitimacy of the Australian Parliament’ (Sydney Morning Herald, 10 December 2017). These statements were deliberately designed to mischaracterise high court decisions and mislead the Australian people and what is now going to be tested is Mark Dreyfus’s claim that ‘…Labor care about the constitutional legitimacy of the Australian parliament’ (Sydney Morning Herald, 10 December 2017).
If Labor does care about the constitutional legitimacy of the Australian Parliament, they must now accept the outcome of the High Court decision and finally do the right thing and demand the resignations of the three Labor If Labor does care about the constitutional legitimacy of the Australian parliament, they must now accept the outcome of the high court decision and finally do the right thing and demand the resignations of the three Labor members who are in clear breach of the constitution so that the people in their electorates can elect a legitimate representative to the parliament.
Members who are in clear breach of the Constitution so that the people in their electorates can elect a legitimate representative to the Parliament.
***end statement***
Christian Porter:Christian Porter:
They were delaying, they were obfuscating, and they did so at enormous expense to the Australian taxpayer and radically, they tried to take everyone for mugs and there was always going to be a day of reckoning and here it is, and where are they?They were delaying, they were obfuscating, and they did so at enormous expense to the Australian taxpayer and radically, they tried to take everyone for mugs and there was always going to be a day of reckoning and here it is, and where are they?
Christopher Pyne says the government sees no reason for the Labor party to refer its other MPs to the high court:Christopher Pyne says the government sees no reason for the Labor party to refer its other MPs to the high court:
They will be wasting more taxpayer money, more time in order to run this protection racket around their caucus.They will be wasting more taxpayer money, more time in order to run this protection racket around their caucus.
Neither Christian Porter or Christopher Pyne will say if the government will use its numbers (and break a longstanding convention) and force the MPs to the high court. They say it is up to Bill Shorten “demanding, requiring and effecting the resignation” of his three MPs.
Christian Porter says Rebehka Sharkie’s case is no different from the Labor cases and she should also resign.
Christian Porter went through a list of Labor claiming its MPs were fine, because of the reasonable steps test, over the last six months.
Christopher Pyne, rewriting history a little bit, says the Coalition MPs who were in question, “did the right thing and resigned”.
When we understood that members of our side of the house had a cloud over them, they were referred to the high court, or they resigned. In fact, quite a number – Fiona Nash, Matt Canavan, who was cleared by the high court, Barnaby Joyce, who wasn’t, and faced the byelection that he won.
John Alexander, when he couldn’t satisfy himself that he didn’t have dual citizenship, he resigned, faced the byelection. On our side, we did the right thing. When there was a problem, we responded to it, methodically, sensibly, as a good government would, faced byelections, and the people re-elected those two members.”
Which is not exactly true. The government held out until the last moment. And then after the ruling, Stephen Parry, the former Senate president, discovered he was in the same position. Then John Alexander discovered his.
Christian Porter:
It means that there four other dual citizens- in fact all dual citizens of Great Britain – who were dual citizens after the close of nominations, who are presently ineligible to sit in the federal parliament, and who should not be sitting in the federal parliament.
And those four people must resign. They must resign today. Bill Shorten must require the resignation of those three Labor members today, and that must occur before close of business today.
Christian Porter and Christopher Pyne have opened their press conference looking quite pleased.
Pyne gestured to Porter to speak first and he did, opening with an attack on Bill Shorten:
If I might start by saying that Bill Shorten said something very curious on Channel Nine yesterday. ‘If the high court today set the new precedent, the Labor Party will deal with it.’ He then, when pressed, said, if the interpretation of the law changes, we will consider what we have got to do.
I want to make it clear from the outset that this decision is not a reinterpretation or a change of the law, it is a crisp and crystal clear clarification of the law as it was stated in the Canavan decision last year, and anyone, Bill Shorten, Mark Dreyfus or anyone else, who says this is a reinterpretation or a change, is talking absolute rubbish.
So I have spent the last couple of weeks chatting to both parties about the possibilities of byelections, and I can tell you that neither is either enthused by the prospect.
Mostly because they are expensive and we are a year (less than a year?) out from a general election. But also because neither want a test so close to the election.
Christian Porter, the attorney general, has called a press conference in the Blue Room - the fancy one where ministers hold their “we have something important to say” pressers.
He is expected to say the four MPs need to stand down. Christopher Pyne will be with him.
And just like that, we are no longer talking about the budget.
Bill Shorten says it’s a new precedent – what he means there is Labor had interpreted the reasonable steps ruling from Skyes v Cleary to mean that as long as you filled out your forms and met all your own personal obligations to divest yourself of your dual citizenship before you nominated for parliament, then you were eligible.
The high court has now ruled that it is not just the taking of the actions – it is also the timing. Which means just filling in and sending off the forms is not enough, you have to take into account the time to send it off and receive your confirmation.
The only one of the four who are in question who might have a case on the timing issue is Josh Wilson – he was a late pre-selected candidate, who moved to divest his British citizenship on the day he was nominated. It just didn’t come back as confirmed until after the election. Not sure how much quicker he could have acted, but the high court may not care.
Bill Shorten has released a statement:
I am deeply disappointed for Katy Gallagher today.
This is a loss to the Senate, and a loss for Labor. We are a better parliament with Katy in it, and a stronger party with Katy in our caucus.
Katy has always acted on the best available legal advice, which indicated that she had satisfied the eligibility requirements under the constitution.
Today, the high court has set a new precedent.
I know this period of uncertainty has been tough for Katy and her family. She has shown great resilience and grace in difficult circumstances.
As a community worker, as a disability advocate, as chief minister and as a senator, Katy has always served others. She has made a valuable contribution to the Australian parliament, and to our shadow ministerial team.
Katy is a key part of Labor’s Senate leadership team. She is too good to lose from public life – and I know we won’t lose her. Katy has a lot more to contribute to Labor and to Australia.
The Labor party will now consider what further implications today’s decision by the high court may have.
The questions in this reference turn upon one issue – whether British law operated to irremediably prevent an Australian citizen applying for renunciation of his or her British citizenship from ever achieving it. An affirmative answer cannot be given merely because a decision might not be provided in time for a person’s nomination. The exception is not engaged by a foreign law which presents an obstacle to a particular individual being able to nominate for a particular election.
That’s the paragraph which has implicated the lower house MPs.
Does the British system stop Australians from being able to nominate for parliament? The court can’t be sure. So Katy Gallagher is out – and the others may be made to resign by the party.
Josh Wilson sent off his documents the day he was preselected. It wasn’t confirmed until after nominations closed. This could have even more layers but, as we have now seen, this high court bench is very black letter. It may not matter.