The government would have us believe there’s really no fundamental difficulty with the citizenship provision in the constitution, which has cut a swathe through the federal parliament. It is just a matter of not being careless.
Unwilling to confront the genuine and ongoing problems now the dual citizen genie is out of the bottle, the government says candidates for parliament simply need to get their paperwork in order.
But a report from the joint standing committee on electoral matters, released on Thursday, presents a compelling case for going back to taws on section 44, which covers not just citizenship but also people having conflicts of interest and offices of profit under the crown.
Staggeringly, according to the committee more than half of all Australians would have to reorder some aspect of their affairs if they wanted to nominate for parliament – and some might never be able to overcome the barriers. The title of the report is “Excluded”.
The only way of making things more workable, the bipartisan inquiry concluded, is by overhauling the section via a referendum.
The government, however, has made it clear it hasn’t any stomach to go down the referendum path. While sources claim it is not necessarily ruling it out for ever, that’s the distinct message coming from the public words.
If the committee, chaired by Western Australian Liberal senator Linda Reynolds, had recommended a referendum before or at the coming election, the government’s position might be reasonable. The challenge would be too big; its political capital too small.
The committee, however, has accepted a longer timetable is needed.
Section 44 disqualifies dual citizens from sitting in parliament. The High Court’s black letter law interpretation, which also applies to other parts of the section, is that a person must not be a dual citizen at the time of nomination.
The section “allows the laws of other countries to create dual citizenships without the knowledge or consent of Australian citizens,” the committee found. It “creates an ongoing cloud of uncertainty over those who have parents, grandparents or spouses born overseas. This cloud also covers those who do not have documentation about their family, including Indigenous Australians”.
One of the cameos given in the report is fictionalised as “Christine” but obviously based on Labor Indigenous senator Pat Dodson. It raises the issue of someone whose mother was part of the stolen generations, without family records, but whose grandfather was rumoured to have been Irish. The senator “Christine” has no disqualification she knows of but remains in “jeopardy that the identity of her grandfather will be discovered”.
The report – unanimous except for one dissenting Liberal - said the evidence suggested “only those with documented generations of wholly Australian forebears can be completely assured of their citizenship status for the duration of their parliamentary term. This creates two classes of Australian citizens for the purposes of engaging in representative democracy.”
Under the committee’s proposal, the referendum would be either to scrap section 44 or have added to it “until the parliament otherwise provides”.
It says that if the referendum passed, the government should engage with the community to determine “contemporary expectations” about suitable qualifications, in relation to citizenship and other matters (such as whether someone holding an office of profit under the crown should have to quit before nominating, as at present, or when elected).
The committee hasn’t taken a view on whether the present requirement for a parliamentary aspirant to be an Australian-only citizen should remain, or dual citizenship should be acceptable.
There are arguments on both sides: the instinctive attraction to feeling an MP should have renounced claims to any other citizenship, versus the feeling that in a multicultural country this might be too rigid a position.
Fairfax’s Latika Bourke reported British Conservative MP and co-chair of the ANZAC parliamentary friendship group Andrew Rosindell describing in particular the ban on dual Australian-British citizens as absurd. She also pointed to Catherine West, an Australian who is a British Labour MP.
While whether MPs should be allowed to be dual citizens would be a debate worth having, one can also understand a government not wanting to have it. It could be fraught and divisive.
Responding to the committee’s report Turnbull said that “what people have to do is simply get their act together.
"Australians expect politicians to set a high standard and they look to us and they say, ‘we have to fill in our forms’, whether it is for tax, or Centrelink, or childcare … ‘We have to get all the details and information together. So should you, people who want to be members of parliament’”.
No doubt many people, highly cynical about politicians, would say just that. But Turnbull knows he is resorting to a populist argument, rather than a soundly-based one. As a lawyer he’d be fully aware, as the report emphasizes, that the citizenship matter is more complex.
This is shown, for example, by the situation of Labor MP Anne Aly. She has produced a letter from the Egyptian embassy saying she is not an Egyptian citizen, but that hasn’t stopped doubts being canvassed. In response, Labor defaults to questions around Liberal MPs Julia Banks and Jason Falinski. The point is, while in the case of some people and countries, determining and renouncing foreign citizenship is relatively straight-forward, in other instances it can be anything but.
The government plans to implement measures, drawing on the report, to make it less likely people will fall foul of the citizenship trap, such as requiring candidates to publicly disclose their family citizenship history when they nominate.
Although the committee has suggested interim steps, it doesn’t regard them as an adequate permanent fix.
The committee was adamantly against giving the Australian Electoral Commission a role in vetting candidates. “For legislative, practical, and reputational reasons this is a dangerous and unworkable suggestion,” it said. “Most crucially, having the AEC both conduct elections and adjudicate on candidate disqualification would seriously corrupt the probity of Australia’s democracy”.
The citizenship provision has claimed 15 members of this parliament, of whom two (Barnaby Joyce and John Alexander) have been re-elected and another four (Justine Keay, Susan Lamb, Rebekha Sharkie, and Josh Wilson) are seeking re-election in the coming byelections.
Ahead, the choice is between a patch-up or a proper solution. The patch up is inevitable in the short term but is a cop-out as a long-term answer.
When it comes to updating the constitution, the task seems beyond this country. Recommendations for various changes from conventions and inquiries over many years have come to nothing. Only eight referendums (including changes to the federal parliament’s powers) have been carried since federation, the last in 1977.
For all the talk, the prospect of a referendum on Indigenous recognition, which only a few years ago seemed likely relatively soon, has once again slipped away.
Our politicians, and we the Australian people, are stuck like glue to aspects of our constitution that have become unfit for purpose.