The inquiry examining the citizenship crisis in Australia’s parliament is considering the use of a random assembly to decide how best to repeal or replace the constitution’s disqualification of dual citizens.
Linda Reynolds, chair of the joint standing committee on electoral matters (JSCEM), said on Friday it was becoming “very clear” to the inquiry that dealing with the disqualifications in section 44 of the constitution would require constitutional amendment.
The committee took evidence from the New Democracy Foundation, a not-for-profit organisation that is developing the jury model to help solve public policy questions.
The jury model involves inviting Australians to put their hand up for service, then randomly selecting a group, controlling for factors such as age, sex and home ownership in the same manner that opinion polls draw together representative samples.
The group of up to 50 or 100 citizens then hears from experts, develops solutions and writes a report.
Models for deliberative democracy have been largely absent from federal politics since Julia Gillard’s ill-fated 2010 election promise to have a citizens’ assembly consider a price on carbon.
Reynolds told the hearing on Friday that fixing section 44 – which prohibits foreign citizens from sitting in parliament – was “a very hard challenge” for politicians because the public sees the issue as their failure to “fix [their] own paperwork”.
“The approach you’re talking about – we’re actually discussing how could we achieve public support for a referendum on this issue,” Reynolds said.
Andrew Giles, JSCEM deputy chair, said the government “could and should do more” on issues that went to how democracy operates to “open up decision-making to a wider group of citizens”.
“Personally, subject to our executive government masters and my colleagues, I think it’s something we should be looking at,” he said.
New Democracy founder Luca Belgiorno-Nettis said it had met Reynolds and Giles before returning with the proposal to use the citizens’ jury model to help deliberate on policy questions, including the proposed ban on foreign donations.
The New Democracy executive director, Iain Walker, told the committee the citizens’ jury was a valuable consultation exercise given the public would perceive that JSCEM had a “conflict” because politicians were seen to act “as both poacher and game-keeper”.
Guardian Australia understands JSCEM members will recommend administrative reforms to help candidates comply with section 44 but are unlikely to put the Australian Electoral Commission in charge of testing their eligibility.
Legislative changes cannot fix the citizenship issue because – as constitutional experts such as Anne Twomey have warned – foreign law determines if a person is a foreign citizen and parliament “can’t legislate in a way to remove the application of the constitution”.
JSCEM is due to report by the middle of the year but is likely to come back sooner, recommending either complete repeal of section 44 or its amendment, so that parliament, not the constitution, sets the disqualifications.
The constitution
<p>Section 44 (i) of Australia's constitution bars "citizens of a foreign power" from serving in parliament, including dual citizens, or those entitled to dual citizenship. But the provision was very rarely raised until July 2017, when the Greens senator Scott Ludlam <a href="https://www.theguardian.com/australia-news/2017/jul/14/scott-ludlam-resigns-from-australian-senate-after-finding-out-he-has-new-zealand-citizenship">suddenly announced he was quitting parliament</a> after discovering he had New Zealand citizenship.</p><p>That sparked a succession of cases, beginning with <a href="https://www.theguardian.com/australia-news/2017/jul/18/larissa-waters-quits-greens-senator-dual-citizenship-with-canada">Ludlam’s colleague Larissa Waters</a>, as MPs and senators realised their birthplace or the sometimes obscure implications of their parents’ citizenship could put them in breach. Unlike Ludlam and Waters, most of those whose dual citizenship was called into question did not immediately quit. </p>
The Citizenship Seven
<p>By October, seven cases had been referred by parliament to the high court, which has the final say on eligibility. They were Ludlam and Waters; the National party leader <a href="https://www.theguardian.com/australia-news/2017/aug/14/australias-deputy-pm-barnaby-joyce-revealed-to-be-a-new-zealander">Barnaby Joyce</a>, deputy leader <a href="https://www.theguardian.com/australia-news/2017/aug/17/nationals-deputy-fiona-nash-referred-to-high-court-over-citizenship">Fiona Nash</a> and minister <a href="https://www.theguardian.com/australia-news/2017/jul/26/matthew-canavans-dual-citizen-account-questioned-by-italian-immigration-experts">Matt Canavan</a>; One Nation’s <a href="https://www.theguardian.com/australia-news/2017/sep/21/malcolm-roberts-citizenship-court-one-nation-brisbane">Malcolm Roberts</a>; and independent <a href="https://www.theguardian.com/australia-news/2017/aug/19/nick-xenophon-will-go-to-high-court-after-finding-out-he-holds-dual-citizenship">Nick Xenophon</a>. </p><p>The court <a href="https://www.theguardian.com/australia-news/2017/oct/27/high-court-rules-barnaby-joyce-and-four-others-ineligible-in-dual-citizenship-case">found that five of the seven had been ineligible to stand for parliament</a>, exonerating only Canavan and Xenophon. That meant the senators involved had to be replaced by the next candidate on the ballot at the 2016 federal election, while the sole lower house MP – Joyce – would <a href="https://www.theguardian.com/australia-news/2017/nov/04/he-speaks-for-us-why-tamworth-is-oozing-sympathy-for-barnaby-joyce">face a byelection</a> on 2 December in his New South Wales seat of New England. Joyce, who has renounced his New Zealand citizenship, is standing again.</p>
Further cases
<p>After the court ruling the president of the Senate (equivalent to the Speaker in the lower house), the Liberal Stephen Parry, also <a href="https://www.theguardian.com/australia-news/2017/oct/31/senate-president-stephen-parry-says-he-may-hold-dual-citizenship">resigned on dual citizenship grounds</a>. The shaky majority of the governing Liberal/National coalition was further threatened when <a href="https://www.theguardian.com/australia-news/2017/nov/11/citizenship-crisis-john-alexander-resigns-and-triggers-byelection">MP John Alexander quit</a>, triggering a <a href="https://www.theguardian.com/australia-news/2017/nov/19/kristina-keneally-says-bennelong-byelection-a-referendum-on-turnbull-government">byelection on 16 December in his Sydney seat of Bennelong</a>. The independent <a href="https://www.theguardian.com/australia-news/2017/nov/14/jacqui-lambie-to-quit-senate-owing-to-dual-citizenship">Tasmanian senator Jacqui Lambie</a> became the next casualty. David Feeney and Katy Gallagher <a href="https://www.theguardian.com/australia-news/2017/nov/22/skye-kakoschke-moore-nxt-senator-resigns-over-dual-citizenship">NXT senator Skye Kakoschke-Moore</a> soon followed. </p><p><br></p>
The implications
<p>The loss of the two lower house MPs <a href="https://www.theguardian.com/australia-news/2017/nov/20/government-accused-avoiding-revolt-parliamentary-sitting-week-cancelled">cost the government its majority</a>, pending the outcome of the byelections. The government has agreed with Labor that all MPs and senators must now <a href="https://www.theguardian.com/australia-news/2017/nov/13/one-nation-boilover-citizenship-deal-and-new-senate-president-share-roiling-day-in-politics">make a formal declaration of their eligibility</a>, disclose foreign citizenship and steps to renounce it. But the constitution cannot be changed without a referendum, which have a poor record of success. More likely, future representatives will have to <a href="https://www.theguardian.com/australia-news/2017/oct/28/high-courts-citizenship-message-is-clear-you-have-been-warned">abide by the strict interpretation of the high court</a>.<br></p>
Current disqualifications include foreign citizenship, bankruptcy, office of profit under the crown, and indirect pecuniary interests in an agreement with the commonwealth.
Reform options include allowing dual citizens to serve in parliament, stipulating that only somebody who chooses to retain foreign citizenship is disqualified, or allowing people to stand with a disqualification as long as it is removed if they win.
Giles told Guardian Australia that deliberative democracy – while not a replacement for representative democracy – could help build engagement, and achieve trust and confidence in the political system.
“We shouldn’t shut the door on some form of exercise here – in testing what Australians think the limits on the eligibility of other Australians to hold office should be,” he said.
Walker said he was “pleasantly surprised” with how JSCEM received the jury model proposal and it appeared “our mechanism is under consideration”.
The special minister of state, Mathias Cormann, said he would not provide running commentary while the JSCEM inquiry was under way.
