When Malcolm Turnbull made a bold prediction of what the high court “will so hold” in relation to the citizenship crisis, the Coalition was furiously arguing for a more lenient interpretation of the constitution to save the then deputy prime minister Barnaby Joyce.
When the high court bucked the prediction, its black-letter approach to section 44 of the constitution looked like a disaster for the government.
But eight months later, the Coalition has seen Joyce and John Alexander re-elected at byelections, the citizenship wrecking ball swinging back in Labor’s direction and, on Monday, it gained a new senator in Tasmania’s Steve Martin.
With byelections in Rebekha Sharkie’s seat of Mayo in South Australia and Labor marginals Braddon (Tasmania) and Longman (Queensland), the Coalition has a good chance of taking at least one seat.
Although the Senate maths is still daunting for the Coalition, Martin’s defection means it now needs eight out of 10 crossbench senators to vote with it to pass legislation, as opposed to nine out of 11.
When you add in Bob Day’s successor Lucy Gichuhi defecting to the Liberals, section 44 hasn’t worked out too badly for the Coalition.
The toll of the citizenship crisis can’t be precisely defined by seat movements, though. There were intangible harms: reduced faith in politicians, chaos in parliament, the government’s agenda being derailed for months by surprise landmines and costly byelections. Nobody would want to get back on this ride.
The constitution
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 suddenly announced he was quitting parliament after discovering he had New Zealand citizenship.
That sparked a succession of cases, beginning with Ludlam’s colleague Larissa Waters, as MPs and senators realised their birthplace or the sometimes obscure implications of their parents’ citizenship could put them in breach.
The Citizenship Seven
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 Barnaby Joyce, deputy leader Fiona Nash and minister Matt Canavan; One Nation’s Malcolm Roberts; and independent Nick Xenophon.
The court found that five of the seven had been ineligible to stand for parliament, 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 face a byelection on 2 December in his New South Wales seat of New England. Joyce renounced his New Zealand citizenship and won the seat again.
Further cases
After the court ruling the president of the Senate, the Liberal Stephen Parry, also resigned on dual citizenship grounds. Then MP John Alexander quit, triggering a byelection in his Sydney seat of Bennelong – which he won. Independent Tasmanian senator Jacqui Lambie became the next casualty and NXT senator Skye Kakoschke-Moore soon followed. Labor MP David Feeney also had to quit, but Ged Kearney won his seat of Batman back for the ALP.
Legal implications
The case of senator Katy Gallagher tested the interpretation relied on by Labor that taking ‘reasonable steps’ to renounce citizenship was enough to preserve eligibility. In May 2018 the high court ruled against her, forcing a further three Labor MPs – Justine Keay, Susan Lamb and Josh Wilson – to quit, along with Rebekha Sharkie of the Centre Alliance (formerly NXT). The major parties have agreed that all MPs and senators must now make a formal declaration of their eligibility, disclose foreign citizenship and steps to renounce it. But the constitution cannot be changed without a referendum.
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But Martin’s defection does highlight one of the consequences of all this upheaval – the different treatment of lower house and Senate vacancies.
When Joyce, Alexander, David Feeney, and now Sharkie, Justine Keay, Josh Wilson and Susan Lamb resigned, their successors were or will be chosen by the voters, allowing the MPs to recontest and renew their mandates (or win a fresh one in Ged Kearney’s case).
But when senators are disqualified because they were not eligible for election, the vacancy is filled by a recount election. In some cases, this has resulted in the return of some familiar faces, resurrected from down-ticket spots. In other cases, it has led to relative unknowns entering the Senate from unwinnable positions.
These recounts theoretically reflect the will of the voters, but realistically – as Martin himself said in his inaugural Senate speech – amount to a collection of “Steven Bradburys” speed-skating through a field of opponents splayed across the ice to claim the prize of a Senate seat.
It makes it more extraordinary then that Martin has now changed parties. Asked how Jacqui Lambie Network voters would feel that he was joining the Nationals, given Lambie had long been a “thorn in the side” of the Coalition, Martin said he would represent all Tasmanians and noted that he joined the JLN on the proviso he could be independent.
“The recount is just a part of life – unfortunate for the JLN – but here I am, large as life, proud to be here, having scored some very important projects for Tasmania,” he said.
The Nationals deputy leader, Bridget McKenzie, chuckled to herself over Martin’s shoulder – evidently pleased either with the coup of a new senator or just the chutzpah of Martin brushing aside any possible inconsistency about running for JLN and promptly turning Nat.
Running as a Liberal didn’t stop Cory Bernardi forming his own party, Australian Conservatives, so why should down-ticket candidates installed by the high court respect such niceties?
Politics has been rough and tumble in the 45th parliament: stay out of the way of the section 44 wrecking ball and pick up the pieces as best you can afterward.
On Monday, it delivered the first Tasmanian National in federal parliament in 90 years. Who knows what comes next? Perhaps a government thrown a lifeline by a byelection upset?
