› Parliament deadlocked over referring MPs to the High Court › Uncertainty to linger into 2018
The citizenship fiasco has paralysed the federal Parliament with the major parties refusing to agree on who should be referred to the High Court, guaranteeing doubts over the legitimacy of Parliament will linger over the summer.
The government signalled last night it was prepared to tough out the situation, believing the three Labor MPs and one crossbencher under a cloud will have their fates decided when the High Court rules on the case of ACT Labor senator Katy Gallagher, whose circumstances are identical.
If Senator Gallagher is dismissed by the High Court, which will not hear her case until February at the earliest, the other four MPs will also have to quit Parliament, resulting in four byelections in the first half of the year.
If Senator Gallagher is cleared, they can stay. Either way, the government avoids the risk of having any more of its own MPs referred to the court.
Senator Gallagher renounced her dual British citizenship before the last election but the British High Commission did not process it before she nominated to stand for the Senate. Senator Gallagher has legal advice saying she ‘‘took all reasonable steps’’ to renounce and therefore is not in breach of section 44(i) of the Constitution.
Senator Gallagher referred herself to the High Court yesterday. Labor MPs Justine Keay, Josh Wilson and Susan Lamb, and the NXT’s Rebekha Sharkie also all renounced their dual British citizenship but the renunciation was not official until after they nominated. They have the same legal advice that they took ‘‘all reasonable steps’’.
‘‘In the event that Katy Gallagher is disqualified, they should resign immediately,’’ manager of government business Christopher Pyne said. ‘‘I think they should have resigned by now. The truth is they were all citizens of the UK on the 9 June 2016 when nominations closed for their seats.’’
In a similar vein, Liberals Stephen Parry and John Alexander resigned immediately on the basis their fathers were British and after the High Court, on October 27, disqualified former Nationals senator Fiona Nash because her father was British.
With just one scheduled day of Parliament left for the year, Labor’s David Feeney was the only lower house MP referred yesterday. Mr Feeney says he renounced his dual British citizenship in 2007 but cannot find the supporting documentation. If he is dismissed, his marginal Victorian seat of Batman is vulnerable to being lost to the Greens.
Labor leader Bill Shorten said he only found out about Mr Feeney’s predicament ‘‘just over a week ago’’ and is believed to be unhappy at the embarrassment he has caused.
The three Labor MPs, Ms Sharkie and four Liberals remain subject to disagreement between the major parties.
Yesterday, Labor crumbled and agreed that its MPs, the bona fides of whom Mr Shorten had long defended, should test their legitimacy before the High Court. But only if the Coalition agreed to refer four of its MPs who Labor contends have unanswered questions about their citizenship, which the government rejects.
The five crossbenchers sided with Labor ona motion torefer allthe MPs to the High Court but the government, its numbers boosted by the return of Barnaby Joyce, voted against it, tying the vote at 73 votes apiece. Speaker Tony Smith, as convention dictates, voted with the government to preserve the status quo.
Labor and the crossbench would only refer the Labor MPs and Ms Sharkie if the government agreed to refer Liberals Julia Banks, Alex Hawke, Jason Falinksi and Nola Marino.
Mr Hawke and Ms Banks have Greek heritage and letters from the Greek embassy saying they are not dual citizens but Labor does not believe the embassy, saying it does not accord with Greek citizenship rules. This invited a stinging rebuke from Prime Minister Malcolm Turnbull.
Mr Turnbull noted Labor’s deputy leader Tanya Plibersek has a letter from the Slovenian embassy confirming she was not a dual citizen and the Coalition accepted this.
‘‘What Labor is now seeking to do is to debase this House by not only covering up people they know should go to the High Court but wanting to refer people to the High Court who are not dual citizens and they have no basis for claiming that they are,’’ Mr Turnbull said.
‘‘Tit-for-tat is no substitute for justice.’’
Mr Shorten said Mr Falinski’s legal advice was not conclusive and there was still a cloud over Ms Marino.
‘‘What we are proposing very simply is one rule for all,’’ he said.
‘‘We have an obligation to restore some confidence in this Parliament.’’
The ruckus exposed a nasty split in Labor when two MPs, Ed Husic and Michael Danby, rounded on shadow attorney-general Mark Dreyfus for his pursuit of Energy Minister Josh Frydenberg, whose Hungarian mother fled the holocaust and was declared stateless.
‘‘This reflects the absolutely feral state of Australian politics right now,’’ Mr Husic said.
Mr Danby said ‘‘the Dreyfus approach is just political tactics and not cognisant of the wider political, historical and ethical issues’’.
‘‘I support Tanya Plibersek earlier view, that the issues around Josh Frydenberg’s mother’s statelessness should not be raised as part of the citizenship debate.’’
Attorney-General George Brandis said the government was investigating if the law could be changed so that dual citizenship with any foreign country could be overridden by a simple, onesize-fits-all renunciation.
Senator Brandis said the two longerterm options to bring the Constitution up to speed with modern Australia were to either change it by referendum or make changes to citizenship law.
There is little appetite for a referendum to enable dual citizens to sit in federal Parliament and even less chance that it would pass.
The Fairfax/Ipsos poll published Monday found the country was evenly split with 49 per cent supporting changing section 44(i) of the Constitution and 47 per cent opposed.
Senator Brandis told ABC Radio National yesterday that the other option, which is being investigated, was whether Australian citizenship law could be changed ‘‘so that there can be an Australian law of renunciation of foreign citizenship’’.
It is understood legal opinion inside and outside of government is split as to whether this can be made to work.
However, the government is taking advice as it would be the simplest way to ensure that all future political candidates do not find themselves in breach of the constitution should they be elected.
