Nationals section 44

With the 45th parliament’s descent into farce now complete, the government’s ability to keep its show on the road all the way to the next election is looking increasingly uncertain.

Yesterday’s announcement by Senator Fiona Nash that she may have inherited British citizenship from her Scottish-born father brings the number of MPs whose citizenship issues stand to be adjudicated by the High Court up to six, three of whom are from the Nationals.

The good news for the government, relatively speaking, is that two of the three are from the Senate, and thus have no bearing on the government’s one-seat lower house majority.

But with new complications from section 44 emerging with every passing week, a lot may hinge on the High Court’s attitude in dealing with the cases shortly to come before it.

The situations faced by the three Nationals can be summarised as follows:

Barnaby Joyce

The Deputy Prime Minister’s obliviousness to the implications of his father’s country of birth may have arisen from the fact that he never registered as a New Zealand citizen, which is required as a preliminary to applying for a passport.

However, NZ government websites give an unambiguous impression that those eligible are no less citizens for not having registered.

Unless our own High Court can be persuaded otherwise, it will be hard to avoid the conclusion that Joyce is a “citizen of a foreign power” according to section 44.

While it’s plausible that the court may prefer to take a softer line in the current environment than when it brought down its landmark Sykes v Cleary ruling in 1992, it’s clear that the Prime Minister and Attorney-General have been erring extravagantly on the side of optimism in their public pronouncements on the matter.

If events prove them wrong, a byelection will ensue in Joyce’s seat of New England in northern New South Wales, which he will be free to contest himself once he’s resolved his present difficulty.

Joyce would most likely retain the seat, but a byelection can only be a nervous prospect for the government in the current environment, particularly given this area’s past record of voting for independents.

Fiona Nash

Nash’s situation echoes Joyce’s in that she believed her father’s birth in Scotland merely entitled her to be a British citizen, rather than making her one automatically.

However, the political consequences of her New South Wales Senate seat becoming vacant are quite different, in that the High Court would presumably direct a recount of the votes cast last year as if she had not appeared on the ballot paper.

This would give rise to an awkward situation in which Nash would be succeeded by Liberal candidate Hollie Hughes, notwithstanding that the two parties negotiated their joint Senate ticket in the clear expectation that the Nationals would get two seats.

If the Liberals wished to honour the sanctity of the Coalition agreement, they could theoretically prevail upon Hughes not to take the seat, and then choose Nash to fill the resulting casual vacancy after she has sorted out her citizenship.

Matt Canavan

For some headline writers (and Greens leaders) Queensland Senator Matt Canavan’s credentials as an Italian were immediately called into question when he sought to blame the situation on his mother.

However, the fact that Canavan’s citizenship indeed derived from the action of a third party may throw him a lifeline.

In Sykes v Cleary, the test applied was not the mere fact of dual citizenship, but the failure of candidates to take “reasonable steps” to ensure they were not ensnared.

Canavan can argue that it was entirely reasonable of him not to act on a situation he had no idea existed.

Furthermore, the issue with Canavan is not that he is a “citizen of a foreign power”, but merely that he is “entitled to the rights or privileges” of a citizen.

The court has never previously adjudicated on this aspect of section 44, and may well be in the mood to set a more relaxed precedent than it did in Sykes v Cleary, now the implications of that ruling have become apparent.

If not, the situation will be much like that facing Nash, with a vacancy to be filled by a Senate recount that would return a Liberal rather than a National — in this case Joanna Lindgren, who had a one year stint in the Senate before failing to win re-election last year.

Given that independent MP Cathy McGowan has reaffirmed her commitment to support the government on confidence and supply, even the worst case scenario with respect to Joyce, Nash and Canavan would not immediately compromise its hold on power.

However, things could yet get ugly with respect to Liberal MPs Michael Keenan and Ann Sudmalis, who have both been batting off claims relating to British-born parents.

Keenan is resisting calls to provide documentary proof of his claim to have renounced British citizenship in 2004, while Sudmalis says only that she has “never held British citizenship”, which seems to leave open the possibility that her situation is akin to that of Barnaby Joyce.

Sudmalis’s southern New South Wales seat of Gilmore is perilously marginal, and Keenan’s Perth seat of Stirling would surely be swept away if the Liberals’ recent form in Western Australia is any guide.

All of which may explain the government’s talk of a “nuclear option” of sending four of Labor’s potentially compromised MPs to the High Court should it try to press the issue.

But like so many of the government’s strategies of late, this one suffers a glaring flaw: unlike the Coalition, Labor is in little danger of losing its seats at any byelections that might result.

Peter Fray

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