The high court should find it has the power to hear challenges to the eligibility of MPs from ordinary citizens, lawyers have argued in a test case.
Bret Walker SC made the submission on behalf of Peter Alley, the failed Labor candidate for Lyne at the 2016 federal election, who is challenging the eligibility of David Gillespie, the National party MP for the electorate.
Such challenges would be a safeguard against the “partisan political process” refusing to disqualify or refer suspect MPs, Walker argued.
Alley is arguing Gillespie may have an indirect pecuniary interest in an agreement with the commonwealth, because he and his wife own a shopping centre that leases a shop premises which includes an Australia Post outlet.
The government and Gillespie have argued for a stay of proceedings in a major test case on whether citizens can challenge MPs’ eligibility at any time under section 44 of the constitution, which includes the dual citizenship provision. Last week the government used its numbers to block the referral of nine MPs facing questions over their citizenship, including four of its own.
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>
Before a full hearing of the case, Alley has to persuade the court the Common Informers Act gives citizens the ability to challenge a candidate’s eligibility, even though the Electoral Act sets a time limit of 40 days to challenge a result after the writs are returned.
On TuesdayWalker argued that although parliament has powers to settle issues of members’ eligibility and its own composition, it was not an exclusive power of parliament.
Walker submitted that, where a question existed about an MP’s eligibility, the parliament could find them eligible or not, or the alleged disqualification could be “raised, politically,” with the house declining to determine the issue one way or the other.
The common informers provisions provided a safeguard in the event that parliament refused to refer or disqualify a person with a “genuine question” over their eligibility to sit, Walker submitted.
Walker quoted a speech to parliament in 1975 by the then-attorney general, Kep Enderby, warning that political parties could engage in what to the public “would appear to be something not very different from a conspiracy” and refuse to refer or disqualify ineligible members.
The public would say “the silly politicians are ganging up to protect one of their members”, Walker said, quoting Enderby.
Walker said the high court had a clear legislative power in the Common Informers Act to issue a penalty against ineligible parliamentarians who continued to sit, and that power should be construed broadly to include determining their eligibility.
He said it would be “surprising to the point of absurd triviality” if the court’s only jurisdiction under that law was to wait for parliament to determine if a person was eligible and then count the days they sat while ineligible to determine the penalty.
The court should not defer to a “partisan determination, bereft of evidence, actuated only by party loyalty” if parliament refused to refer or disqualify ineligible MPs.
The solicitor general, Stephen Donaghue, submitted that reading the constitution and the Act in this way would allow “any person, at any time [to] obtain a ruling” on parliamentarians’ eligibility.
Underscoring the importance of the case to the citizenship eligibility crisis, which has already claimed nine MPs and senators, Donaghue noted “the events of the last four or five months” and said common informers’ challenges would not require a reference from the House of Representatives.
Donaghue said the electoral law and its antecedents included time limits to ensure the composition of parliament could be “rapidly settled” after an election without “ongoing uncertainty”.
Gillespie’s lawyer, Guy Reynolds, said allowing the common informers provisions to bypass time limits in the electoral laws would mean “for some time, years in fact” an action could be brought to challenge MPs. He said that could undermine the position of parliamentarians, or the government, “well after an election”.
The high court reserved judgment in the preliminary hearing on Tuesday.
