We have it from the New Zealand Prime Minister Bill English that Barnaby Joyce is a citizen of his country. We have it from the Australian Constitution that you can’t be a federal MP if you are a dual national.
We have it from Malcolm Turnbull that “the deputy prime minister is qualified to sit in this house and the High Court will so hold”.
Work that one out.
Section 44 (i) bans from being a candidate anyone who “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 citizen of a foreign power”.
Joyce had been dismissive of media questions on the possibility he might be a citizen of New Zealand, where his father was born.
Then, on Thursday, Chris Seed, the New Zealand high commissioner, rang Joyce’s office with the worst of news. After Seed briefed Joyce’s chief-of-staff, Joyce instantly rang back, and the two met around 5.30.
The New Zealand Labour opposition had lodged questions on notice, which had to be answered the following week. There was also Australian media questioning of the New Zealand Department of Internal Affairs.
While the parliamentary questions didn’t name Joyce, they obviously referred to him. Chris Hipkins, MP for Rimutaka, asked whether a child born in Australia to a New Zealand father would automatically have New Zealand citizenship.
Seed said the preliminary advice from the department was that Joyce was indeed a New Zealand citizen – a position English confirmed publicly on Monday.
The Turnbull government quickly sought advice from the federal solicitor-general, Stephen Donaghue; it came back on Sunday. It is understood that the advice focused on the reason for Section 44 (i) – to prevent allegiance to another country – and canvassed tests in relation to this.
Was the person born overseas?
Was he on a list of citizens of the other country?
Had he ever applied for citizenship of the country?
Had he ever sworn any sort of oath of acquiescence to the other country?
On these measures, according to the advice, the High Court would be expected to come down in Joyce’s favour.
The advice notwithstanding, constitutional expert Anne Twomey, from Sydney University Law School, is surprised Turnbull has been so unequivocal about the decision on Joyce.
“I’m not as confident as the prime minister seems to be,” she says. She believes that Joyce “potentially has a real problem”. But it is a matter of how the court interprets Section 44 (i), she says.
It may draw a distinction between citizenship by descent and other citizenship, Twomey says. “Or it could say the purpose of the provision is to prevent dual allegiance – and if you didn’t know [you were a foreign citizen] you were not breaching the purpose.”
The High Court mightn’t relish Turnbull – his barrister background notwithstanding – telling it what it will decide. But there’ll be a lot more at stake in its judgement on Joyce than the risk of Turnbull – and the solicitor-general, for that matter – being embarrassingly wrong.
If Joyce, the Nationals leader, were found in breach and so knocked out of parliament, that would create massive turmoil not just for the minor Coalition partner but for a government with a one-seat majority.
There’d be a byelection in his seat of New England, where in 2016 Joyce held off a challenge from the former independent member, Tony Windsor.
Joyce, who is busy divesting himself of his New Zealand citizenship, would no doubt run again and possibly face Windsor. While he had a comfortable win last time, byelections are dangerous, because they are custom-made for a protest vote.
The process would run into months. The Nationals would be effectively leaderless. The government would have lost its majority in the House of Representatives. It would be all right on supply and confidence, thanks to agreements with some crossbenchers, and would still get most legislation through. But where all the crossbenchers sided with Labor it would be in trouble.
It would be in nightmare territory, with Labor having endless opportunity for disruption.
Assuming Turnbull is right that Joyce will be found in the clear, the immediate situation is still very bad for the government. It’s another distraction, and a serious one, internally and externally.
On Thursday week there is a directions hearing for four others who are before the High Court in relation to Section 44 (i) – One Nation’s Malcolm Roberts and former minister Matt Canavan, from the Nationals, as well as the two Greens, Larissa Waters and Scott Ludlam, who have already resigned.
The Joyce referral will join them. But the decision could be anytime between October and December, a very long period for uncertainty to swirl around the future of a key member of the government’s leadership team.
Turnbull tried to drag Bill Shorten in the shambles by offering to wrap into the referral any Labor MPs whose citizenship qualifications are dubious. Shorten, unsurprisingly, rebuffed him. Labor appears confident a tough vetting process means its MPs are in the clear. Nevertheless the government is throwing around names.
Labor jumped on the double standard being applied to Canavan – who quit cabinet and isn’t voting in parliament – and Joyce, who is keeping his positions and voting.
The government claims it is also confident about Canavan, while admitting the circumstances are different – not in a good way – by virtue of the fact his mother applied for his Italian citizenship, allegedly without his knowledge, and he was listed as an Italian national at the time of his election.
The realpolitik, however, is that Canavan is a senator. In the Senate, which has been hit by multiple resignations and referrals, those already politically dead and gone and the walking wounded are being accommodated so the numbers aren’t out of kilter.
And Canavan’s exit from cabinet, while inconvenient, is not a disaster, although ironically it is Joyce who is doing his former ministerial jobs of resources and northern Australia.
In the finely balanced House of Representatives the situation is precarious, and the government is certainly not going to live more dangerously than it absolutely has to.
Anyway, the Nationals would find it intolerable if they were without their leader in cabinet for months while his fate is being decided by the court. Especially when the future of energy policy is the biggest issue before the government between now and Christmas.