The Greens’ annus horribilis cranked up another notch yesterday as the dual citizenship debacle claimed a second senator in nearly as many days.

As with Scott Ludlam in Western Australia, a replacement for outgoing Queensland Senator Larissa Waters looks sure to be determined through a court-mandated recount of last year’s Senate votes that excludes the candidate or candidates deemed ineligible.

It is no less certain that this will lead to the election of the next candidate along on the party’s Senate ticket, but an important distinction between the two cases arises from the fact that the Greens achieved their best case scenario of winning two seats in WA, but failed to do so in Queensland.

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The next candidate along in WA, 22-year-old disability advocate Jordon Steele-John, held an unwinnable position, which the party felt it could give over to a harmless display of gesture politics, and it is expected that he will not take the unexpected opportunity to fill Ludlam’s vacancy.

By contrast, the No. 2 candidate in Queensland was a real contender: Andrew Bartlett, who represented the Australian Democrats in the Senate from 1997 to 2008, and was later endorsed by the Greens for high-profile candidacies in the federal seat of Brisbane in 2010 and the city’s lord mayoralty in 2012.

While Bartlett’s status as Democrats leader during the party’s terminal phase from 2004 onwards might be thought a bad omen for a party grappling with a rebellion in its largest state branch, he has remained popular in progressive political circles over the years through his activism and online presence.

If the enlistment of Bartlett constitutes some sort of silver lining, it’s small comfort against the loss of two of the party’s most electorally appealing figures, and the exposure of serious deficiencies in its organisational professionalism.

[Another Green falls by the wayside as Larissa Waters discovers Canadian citizenship]

However, those at a loss to understand how this could have happened may be underestimating the extent of the mess that section 44(i) of the constitution has developed into after a series of uncompromising High Court rulings in the 1990s.

Because dual citizenship can be acquired by default, those with parents or even grandparents born overseas can be ensnared if the relevant country’s citizenship laws are accommodating enough.

An instructive example of where this can lead is provided by Nick Casmirri, an electoral commentator and blogger who confronted the issues involved when he nominated for Australian Democrats preselection in 2004.

As Casmirri describes it, his Italian-born father does not entitle him to citizenship of that country, since he relinquished his own Italian citizenship when he became an Australian citizen before Casmirri was born; but he could potentially become an Italian citizen via his Australian-born mother, who never had occasion to abandon the Italian citizenship rights she has through her own parents, and could thus apply for an Italian passport and in turn make Casmirri eligible for one as well.

Does the potential for Casmirri to attain an Italian passport, depending on what his mother does, constitute entitlement to “the rights or privileges of a subject or a citizen of a foreign power”, such as would disqualify him from parliament under section 44(i)?

To have any real confidence about the answer, he would probably need to enlist a lawyer, as it seems Larissa Waters should have done — and even then, that lawyer’s conclusion might prove different from that of the court, given many of the issues involved have not been properly tested.

Probably the safest course would be to befuddle the Italian authorities with a letter inquiring about a probably non-existent process for relinquishing a citizenship he doesn’t actually hold, so that if it came to it, an argument could be made before court that he had passed the test of taking “all reasonable steps” to renounce his rights.

[What we lose when we lose Scott Ludlam]

Graeme Orr, a legal academic at the University of Queensland and specialist in electoral law, argues that the High Court brought little expertise to bear on such issues when it made its landmark rulings, owing to the infrequency with which it is called upon to adjudicate on points of electoral law, and still less expertise on the knotty realities of party politics.

The result is two strands of unfairness: one against the many millions of citizens without a clean run of Australian heritage going back a few generations, who are presented with obstacles that serve no real purpose if they wish to run for parliament, and another against minor party and independent candidates, who lack the major parties’ ready access to legal advice.

The only solution to the problem is constitutional reform, requiring a daunting referendum process that the major parties have no incentive to pursue.

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Peter Fray
Peter Fray
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