Australia citizenship crisis reignites as senator and four MPs quit

https://www.theguardian.com/australia-news/2018/may/09/australia-citizenship-crisis-reignites-as-senator-and-four-mps-quit

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Australia has lurched into a fresh political crisis after a court ruled that a Labor senator was ineligible to sit in parliament because she had failed to renounce her British citizenship, triggering a spate of MP resignations.

The latest twist in the saga brings to 14 the number of parliamentarians who have resigned or been ruled ineligible since mid-2017, when renewed scrutiny on a constitutional clause set politicians scrambling to prove they only had Australian citizenship.

On Wednesday the high court ruled that the Labor senator Katy Gallagher was ineligible because she had failed to renounce her British citizenship by the nomination deadline before the 2016 election.

Three Labor MPs and a minor party MP quit within hours, accepting that the case was a precedent because they had relied on the same defence of having taken “reasonable steps” to renounce their British citizenship before the election.

In a litmus test for both the Liberal prime minister, Malcolm Turnbull, and the Labor opposition leader, Bill Shorten, the four MPs will now fight to retain their seats in a “super Saturday” of byelections in four different states.

While the Turnbull government targets Shorten for his failure to force his MPs to resign sooner, the Labor leader has attempted to frame the looming contests – to be held as early as June – as a chance to cast judgment on the coalition government’s May budget and 10-year company tax cut plan.

The byelections include the marginal Labor seats of Longman (Queensland) and Braddon (Tasmania), so the risk of losing MPs falls on the opposition. But with the possibility of swings away from the ruling Liberal-National coalition in Queensland and the Western Australian seat of Fremantle, the results may also spell danger for Turnbull.

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.

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, the Liberal Stephen Parry, also resigned on dual citizenship grounds. Then MP John Alexander quit, triggering a byelection in his Sydney seat of Bennelong – which he won. Independent Tasmanian senator Jacqui Lambie became the next casualty and NXT senator Skye Kakoschke-Moore soon followed. Labor MP David Feeney also had to quit, but Ged Kearney won his seat of Batman back for the ALP.

The case of senator Katy Gallagher tested the interpretation relied on by Labor that taking ‘reasonable steps’ to renounce citizenship was enough to preserve eligibility. In May 2018 the high court ruled against her, forcing a further three Labor MPs – Justine Keay, Susan Lamb and Josh Wilson – to quit, along with Rebekha Sharkie of the Centre Alliance (formerly NXT). The major parties have agreed 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.

While the MPs can recontest their seats to re-enter parliament within two months – as several other MPs have done – Gallagher will be replaced by her Senate running-mate, forcing her to wait until the next election to re-enter parliament.

In Gallagher’s case the high court adopted a strict approach to the constitutional bar on foreign citizens sitting in parliament, clarifying that taking “all steps reasonably required” is only a defence where foreign law “irremediably prevents” the Australian citizen renouncing foreign citizenship.

That would require an “insurmountable obstacle” to renouncing foreign citizenship, five justices said in a joint decision. The court found there was no such impediment for Gallagher and the requirements of UK law to renounce citizenship could not be described as onerous.

The attorney general, Christian Porter, said the legal test had been clear since the high court’s Re Canavan decision in October, which found five MPs and senators ineligible over dual citizenship.

The Liberal leader of the house, Christopher Pyne, said Shorten had “faced a character test” over the citizenship of his MPs and he had “failed it quite spectacularly”.

Shorten refused to apologise for his handling of the citizenship issue. He said the Labor MPs – all but one of whom were eventually able to renounce their other citizenships albeit after the deadline – had relied on legal advice in “good faith”.