The weekend is upon us and the news is in. Five of seven Parliamentarians, some more well known to us than others, have just been disqualified from holding office because they held dual citizenship when they were nominated for election.
Everyone is talking about it, and you have dinner plans on Saturday night (or any night). Clearly, you have views and you want people to listen to you. But where’s the time to read the decision, if you even wanted to?
Do not despair. Help is on hand. Here is your cheat’s guide (with the emphasis on cheating) to enable you to hold forth with authority. Just remember that ‘authority’ and ‘popularity’ can be two different things.
Tip 1: ‘Prove’ you have read the judgment.
Try this, “OMG I’m never going to get back that hour of reading 44 pages again.” Good start.
If you can name all seven judges behind the unanimous decision [Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.], then you are on your way. And if you mention that Edelman J is the first Gen-X judge to sit on the bench, you have earned your second gin and tonic.
Tip 2: Correct someone who suggests the High Court was sitting in its appellate jurisdiction.
How about, “No, No, No darling. it’s sitting as the Court of Disputed Returns, of course.” You can then add that the person who does the referral is either the President of the Senate (in relation to Senators) or the Speaker of the House of Representatives (in relation to those sitting in the Lower House). Warning: Effective demonstration of knowledge, but a bit on the annoying side.
Tip 3: Use legal language when describing the outcome
Consider, “Amazing day in politics today. Five vacancies. Who knew s 44(i) of the Constitution would come into play like this”.
Refer to the fact that, for the ‘winners’, there will be ‘no vacancy’ for the places of either Senator the Hon Matthew Canavan or Senator Nick Xenophon. Note: Bonus points if you can explain why Matthew Canavan scores “the Hon” in the judgment but Nick Xenophon does not.
When discussing what comes next for the five ‘losing’ politicians, show some Antony Green-style political know-how:
- The vacancy of four spots to be filled by a special count of the ballot papers –Senator Scott Ludlum (Western Australia); Senator Larissa Waters (Queensland), Senator Malcolm Roberts (Queensland), and Senator Fiona Nash (New South Wales);
- In the case of the Hon Barnaby Joyce MP, the Member, there shall be a by-election in his seat of New England. Note: Nice one if you crack a joke involving New England and ‘New Zealand’.
Tip 4: Comment on the likely costs of the case, but not in a way that bags out barristers (because I say so)
If you are in the mood to grumble about taxpayer funded litigation, you could mention that there were 25 barristers all up, which makes for a crowded court room.
To make an informed comment on this fun fact, you could note that a number of these barristers are well known for representing parties pro bono (for free) if the matter is in the public interest.
An interesting aspect to the case for the technically minded is that our legal system is inherently adversarial. However, what happens if there isn’t a contest? That is, Senators Canavan, Nash and Xenophon were sitting members of Parliament and had their own legal representation, and the Government (represented by the Solicitor General) supported their positions. They were on the same side, so to speak. Which is not exactly adversarial. The Court dealt with this by appointing a ‘contradictor’ as amicus curiae (latin for ‘friend of the court’). The contradictor, a senior barrister, effectively stood in the shoes of the notional opponent.
Barnaby Joyce did not have a contradictor because he had Antony Windsor as his opponent.
Mr Ludlam and Ms Waters had already resigned their seats so they did not have a contradictor either.
Senator Roberts had an actual contest, resolved at an earlier hearing before Keane J.
Tip 5: Learn the words of s 44(i) by heart then turn them into a drinking game (to make you – sort of – popular again)
“Any person who:
(i) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; …
shall be incapable of being ** or of sitting as a senator or a member of the House of Representatives.”
[**Assessed from the date of nomination.]
Section 45(i) of the Constitution provides that if a senator or a member of the House of Representatives “becomes subject to any of the disabilities mentioned in the last preceding section”, his or her place “shall thereupon become vacant.”
Tip 6: Explain “the three arguments” when referring to the Government’s argument
As the Court noted, there were three alternative arguments, each involving a construction that departed substantially from the text.
The difference between them turned on what is called “the mental element”. The statute does not say it, but Deane J, in a dissenting judgment in Sykes v Cleary (1992) 176 CLR 77 at 100-101, was of the view that s 44(1) should be informed by this consideration. This dissenting judgment (meaning he did not agree with the majority decision) was what the Government had hung its hat on.
The alternative arguments for construing s. 44(i) were these:
- Being a foreign citizen must have a voluntary component – For instance, you knew you were a foreign citizen or that there was a real and substantial prospect that you might be one (urged by Senators Canavan, Roberts and Xenophon)
- You can only be a foreign citizen for the purposes of the section if you have chosen to be one or maintained this status – This is very close to requiring actual knowledge that you are a citizen (urged by Mr Joyce and Senator Nash).
- If you have been “put on notice” that is, have knowledge of the factors that would lead a reasonable and diligent person to investigate the matter, then you have been caught by the section (urged by Mr Ludlam and Ms Waters).
The problem with three competing tests, none of them in the plain language of the statute, is that it rather invites the Court to stick with the text. Which is what it did.
Tip 7: Provide a pithy synopsis of the legal reasoning
The upshot is that there was no new law. Rather, the High Court simply applied Sykes v Cleary. The interest in this decision lies in the outcome, and the machinations leading up to it.
The High Court found that the ordinary and natural meaning of s. 44(i) must be accepted. This accorded with the view of the majority in Sykes v Cleary, which all parties accepted was the relevant authority. This approach also avoided the uncertainty and instability of the competing approaches.
The Court adopted the approach submitted by the amicus curiae, namely, that s. 44(i) has two limbs. See how the ‘acknowledgement’ words and ‘adherence’ words are split by the word ‘or’? The first limb suggests an exercise of the will of the person concerned, whereas, the second limb is passive, involving the existence of a status or of rights under the law of the foreign power. In other words, the lack of any apparent ‘mental element’, according to the High Court, was deliberate.
Such a broadly drafted provision was said to be:
- Consistent with its purpose – to avoid people having a split allegiance between Australia and another nation;
- Consistent with the history of how the provision was drafted and enacted; and
- Consistent with the need for stable Government, because no one should be required to investigate the state of mind of a candidate.
This might sound harsh, the Court said, but it cautioned candidates seeking election. Nominating yourself for election is “manifestly an occasion for serious reflection on this question”. And, as to the level of diligence required: “A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the Parliament”.
The only get out of jail clause the Court was prepared to offer was if the person had taken all reasonable steps to renounce the other nationality. The Court stated, relying on previous authority, that it would be wrong to interpret the provision to disbar an Australian citizen who had taken all reasonable steps to do this. For the avoidance of doubt, a unilateral declaration renouncing foreign citizenship would not be enough. One must do something effective under the relevant foreign law to release that person from the duty of allegiance or obedience.
Tip 8: Tell your companions what happened to each person, after which everyone will call for an Uber and you can finish off the evening, alone
The fate of the individuals:
- Senator Canavan – did not apply himself to be an Italian citizen because ‘his Mum did it’. The evidence did not establish he was an Italian citizen given he took no positive steps.
- Senator Ludlum – After being contacted by a person stating he had reason to believe Mr Ludlum was a New Zealand citizen, he checked this himself, and found out he was.
- Senator Waters – She came to Australia when a baby from Canada. At the time of her birth, Canadian Citizenship was governed by a 1970 piece of legislation that basically said, if you are born in Canada after 1946, you are a citizen.
- Senator Roberts – A circuitous route to British citizenship via his father’s nationality and India; he was a British citizen by descent.
- The Hon Joyce MP – A New Zealand citizen courtesy of his father. Interestingly, he had obtained his own legal advice on 12 August 2017 from a New Zealand QC which confirmed he was a citizen of New Zealand by descent. This was after Mr Joyce met with the New Zealand High Commissioner on 10 August 2017 who conveyed to him that in the eyes of the New Zealand government he was a citizen of New Zealand by descent. However, this did not persuade him to resign immediately.
- Senator Nash – Her parents divorced in 1973 when she was eight years old. Thereafter, she was raised by her mother and had little contact with her father until the later years of his life. He was born in Scotland, and she knew this. She also knew her sisters were British citizens, having been born in England. She was found to be a British citizen, by descent.
- Senator Xenophon – he was a British overseas citizen (or BOC) which does not confer the rights, privileges and obligations conferred under the law of a foreign power. For instance, you do not have the right to enter or live in the UK. It followed that he had no reciprocal obligation or allegiance to the UK that could disqualify him.
Tip 9: If there is anyone left around the dinner table, ask the question, will there be more?
Then you can engage in some enjoyable speculation and gossip, which is nicely compatible with dessert.