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High Court Ruling – the start of a potential horror run for Turnbull

There is an old saying that warns people about the consequences of chickens that come home to roost. This saying is quite apposite for Malcolm Turnbull’s Liberal-National coalition government. This government has let a number of political chickens fly from the coop, and some of these are now starting to come back with the potential to cause it some damage.

The first of the major problems to come back to haunt the government involved the High Court’s determination of the citizenship status of a number of parliamentarians, two of whom are member of the Liberal party’s coalition partner, the National party. One of these was none other than the deputy prime minister, Mr Barnaby Joyce.

Using precedent set particularly in a 1992 case in which it was asked to rule on the status of a parliamentarian and various candidates for a by-election held that year, the High Court examined the ancestry of the seven MPs brought before it to determine if any of these could claim any citizenship status from the countries of birth of themselves, their parents or, where appropriate, their grandparents.

The High Court’s reasoning for this approach can be explained thus: having accepted that dual citizenship is a common law right and a principle of international law (to which Australia as a nation state is a signatory), the court reviews the citizenship laws of the countries from which the parliamentarian, or the parliamentarian’s parents, or the parliamentarian’s grandparents originally came from. If those countries have laws that allow the children or grandchildren to be able to claim citizenship, the High Court holds that this satisfies the sentence in Section 41 (i) of the Australian constitution that disqualifies people from the federal parliament because they would be “entitled to the rights or privileges of … a foreign power”.

Because Mr Joyce’s father was a New Zealander, and because New Zealand allows the children of New Zealanders to be able to claim citizenship, Mr Joyce was deemed by the High Court to have an entitlement that rendered him ineligible to sit in the Australian parliament regardless of the fact that he had never contemplated or actually acted on taking out New Zealand citizenship. All the other former MPs declared ineligible to be in parliament have similar stories to Joyce. On the other hand, the two senators whose election was validated (Nick Xenophon and Mat Canavan) were deemed to be eligible precisely because no entitlement to citizenship of another power could be demonstrated.

What this tells us is that the Australian constitution, as interpreted by the High Court, now makes genealogical distinctions between those who can run for national politics and those who cannot. If you are a naturalised Australian, or your parents were immigrants, or your grandparents migrated to Australia you may not be eligible to run for parliament unless you write to the embassies or citizenship offices of those countries from which your parents or grandparents came from to declarer your explicit wish to be expunged from any such entitlement.

Is this a major problem? From the perspective of the major political parties, it would appear not as insights have emerged showing that their parliamentarians understood the consequences of the first slew of citizenship cases and have taken the necessary action to discharge their potential entitlements. This was revealed when Labor leader Bill Shorten tabled correspondence he had with the British High Commission confirming any severance of entitlement (Shorten’s father had migrated from Britain). One would assume the Liberal party is similarly administratively capable to understand and act on constitutional law once the High Court determines what it is. It’s the administratively inept minor parties that have been over-represented in these citizenship cases.

Of course, the symbolism of what has happened is slightly more problematic. Section 44 (i) as it now stands implies that there are different classes of Australians, and that only those with a deep genealogical link going back to great-great grandparents are spared the administrative burden of writing to a potentially vast array of foreign governments ahead of being nominated to run for the Senate or the House of Representatives. This rather undercuts the notion that used to underpin Australian immigration policy that those who migrate to this country do so with the intention of aligning their aspirations with their new home.

It’s even more offensive to those who are born in Australia to migrant parents who took out Australian citizenship and, in the process, made a declaration of loyalty to Australia to the exclusion of other countries. Apparently the fact that one was born in Australia to parents who swore allegiance to Australia isn’t enough for the High Court. In its desire to uphold Australia’s role in international law, the court has been willing to create second-class political citizens in Australia for whom seeking election to the parliament involves an administrative burden not required of fourth generation Australians. For a country that used to venerate inclusion as an integral part of its approach to multiculturalism, the High Court’s approach is not a good look.

Meanwhile, back in Canberra, the Turnbull government has had its lower house numbers reduced and the leadership of the coalition party decimated to the point where there isn’t a National capable of being deputy prime minister whilst Mr Joyce re-contests his seat of New England. It looks as if the opposition parties will seek to pressure the government over contentious policies such as diminished salary penalty rates for service sector workers and the convening a royal commission in to the banking sector.

As if all this isn’t enough, the government will soon be getting results of its marriage equality survey which means that that particularly destructive social issue will return to the Liberal party room very soon. Stand by for another round of internal instability in the Liberal and National party rooms as this matter returns for consideration.

If Turnbull can survive this issue in particular, he may yet lead the Liberals at the next election.

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