The Prime Minister is, at least, getting plenty of opportunity lately to exercise his old barrister’s advocacy skills, a key one of which is the ability to argue a weak case.  And so there he was at the dispatch box on Monday, ears still ringing to the sheep noises with which the opposition had welcomed Deputy Prime Minister Barnaby Joyce to the House, probably wondering if he will ever catch a break.

However, deep breath and in Malcolm launched to his latest courageous imperative: “The leader of the Nationals is qualified to sit in this House, and the High Court will so hold.”

Ooh, I’m afraid that particular bold overstatement may come back to bite, and hard. Politics 101: make all the brave predictions you like, but don’t go telling the High Court how it’s going to rule.

I did say a few weeks ago that section 44(1) of the constitution was circling Parliament like a rabid dog; well, this time it has its teeth set deep in the juiciest of rumps. If Barnaby goes, so may well the government.

What we know so far about Joyce’s particular case is that the New Zealand Department of Internal Affairs, on Crown Law advice, has formally confirmed that Joyce is a current New Zealand citizen. Joyce’s father was born in New Zealand and migrated to Australia in 1947. He married an Australian citizen, and their son Barnaby was born here.  

[Crikey Clarifier: what is section 44 of the constitution and how did it trip up the Greens?]

Under New Zealand law, if one of your parents is a New Zealand citizen by birth or grant, then so are you. Apparently, neither Barnaby Joyce nor his father ever took steps to formally renounce New Zealand citizenship; therefore, if his father was a citizen, then so still is Joyce.

Joyce has argued that, before 1948, all New Zealanders (like all Australians) were British subjects. However, he might be wrong in thinking that his father never became a New Zealand citizen. The New Zealand government is apparently sure that he did by automatic force of law when that country’s citizenship law first came into effect.

Section 44(i) is a pretty brutal instrument. It disqualifies from Parliament anyone who “is a subject or a citizen of a foreign power”. The literal impact of those words has been dramatically reduced by the High Court, which read the provision down in a 1992 case to only operate on dual citizens who have not “taken reasonable steps to renounce” their foreign citizenship.

Matt Canavan, the other National Party minister caught up in this mess, is set to argue that he should be let off the s44(i) hook because he didn’t know he’d become an Italian citizen, didn’t ask for it and didn’t consent to it. I’ve pointed out the problem with that line of argument; the High Court in the earlier case did not consider ignorance to be a valid basis for avoiding the effect of the provision.  

In that case, the court was dealing with two MPs who were born overseas and mistakenly thought they had renounced their foreign citizenships automatically when they became naturalised Australians. They were disqualified because they had taken no steps to seek renunciation. The fact that they didn’t know or believe they had anything to renounce didn’t save them.

Canavan is in a different boat, having had foreign citizenship given to him unknowingly (on his evidence), and the court will have to decide whether that necessitates expanding the defence it earlier established. However, it is difficult to see how Joyce’s situation materially differs from that of the two MPs kicked out by the court in 1992. If he is a New Zealand citizen, then he has been so since birth. If ignorance continues to be no defence, I don’t know how he avoids ineligibility.

[Poll Bludger: section 44 is a sticky wicket in need of reform]

Joyce says that the government has legal advice from the Solicitor-General that is so strong that the government decided it’s OK for him to not just remain in Parliament and exercise his vote, but to remain in cabinet (unlike Canavan, who resigned his ministry). He didn’t disclose the content of the advice, of course.

Politically, the government would feel it has no choice but to guts this out until the High Court has passed judgment. It has a one-seat majority in the lower house, and its legitimacy is now under question. However, the purely political perspective also begs the question why, so many weeks after it first became obvious that every member of parliament would be having their ancestry raked over and that any questionable legitimacy issues would be exposed, the government has done nothing proactive and instead allowed itself to be blindsided again by the media. It’s basic incompetence of an inexplicable degree.

Legally, this is an embarrassing disaster. Everyone needs to move with maximum speed to get this sorted out and cop the consequences. Then, once we again have a functioning government (which we might not get until after a byelection or even a full election if the government cannot maintain the confidence of the House), we need multi-partisan agreement on a reform of the anachronistic s44(i) before it eats our multicultural democracy whole.

Peter Fray

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