2017 Australian constitutional crisis
In 2017, the eligibility of Australians with actual or possible dual citizenship to sit in the Parliament of Australia was called into question, amounting to an ongoing political event referred to by some as the 2017 Australian constitutional crisis or the citizenship crisis. The issue arises from section 44 of the Constitution of Australia, which includes a subsection prohibiting allegiance to a foreign power for electoral candidates.
Various cases of elected politicians discovering that they unknowingly hold or may hold dual citizenship have been referred to the High Court of Australia, however they have yet to be ruled on. As of August 20, Senators Scott Ludlam and Larissa Waters of the Australian Greens have voluntarily resigned their seats, and their cases have been referred to the High Court alongside those of: Deputy Prime Minister Barnaby Joyce and Senators Matt Canavan and Fiona Nash, all National Party ministers in the Turnbull Government; Senator Malcolm Roberts of ; and Senator Nick Xenophon, leader of the Nick Xenophon Team.
There will be a directions hearing for at least some of the cases in the High Court on 24 August.
Background
Section 44 of the Constitution of Australia states:
The wording of this section of the Constitution has cast doubt on the eligibility of several MPs and Senators who may hold citizenship with countries other than Australia, either through failure to renounce their citizenship of their country of birth or through ignorance of the citizenship by descent laws of their parents' and grandparents' countries of birth.
Precedent exists of the High Court disqualifying parliamentarians on the grounds of s 44(i). In Sykes v Cleary, the High Court ruled that both major-party candidates in a 1992 by-election for the Division of Wills were ineligible to replace the separately ineligible independent Phil Cleary; Labor's Bill Kardamitsis and Liberal John Delacretaz failed to renounce their Greek and Swiss citizenships respectively. In addition, the High Court ruled that a candidate who takes "all reasonable steps" to renounce their non-Australian citizenship before their election would not face disqualification. The most immediately relevant case is Sue v Hill, in which London-born Heather Hill, elected as a Senator for Pauline Hanson's One Nation in 1998, was ruled to have been invalidly elected and disqualified by the High Court after failing to renounce her citizenship with the United Kingdom. Following a recount, Hill was replaced by Len Harris, the second Senate candidate for One Nation.
In the current Parliament of Australia, following the 2016 election, the Turnbull Government holds a one-seat majority in the House of Representatives, which would be be lost if two government members of the House were to resign due to disqualification. The government would then be vulnerable to an Opposition motion of no confidence, which if carried would require the government to resign. In any case, a by-election would be held in any vacated seat and the government's majority would be removed if it lost least one such election.
On 14 July 2017, Scott Ludlam announced that he still retained New Zealand citizenship from his birth in New Zealand. Ludlam had settled in Australia with his family aged eight, and had previously assumed he lost his New Zealand citizenship when he naturalised as an Australian citizen in his mid-teens. It is expected that Ludlam will be found to have been ineligible to be elected, requiring the seat to be filled by a recount of the . The next un-elected Greens candidate on the Senate ticket in Western Australia was Jordon Steele-John, a 22-year-old disability rights advocate, who will become Australia's youngest senator in history if he replaces Ludlam.
The revelation prompted Ludlam's fellow co-deputy leader of the Greens, Senator Larissa Waters, to similarly discover that she held Canadian citizenship, and to resign four days after Ludlam. Waters was born to Australian parents who were briefly living in Canada, and returned with them to Australia while still a baby. She had previously believed that she was solely an Australian citizen, and that if she had wished to gain Canadian citizenship she would have needed to taken active steps before age 21. However, she discovered she had in fact always held dual citizenship since birth. Her seat is also likely to be filled by a recount, giving former Democrats leader Andrew Bartlett, who held the second position after Waters on the Greens' 2016 Senate ticket in Queensland, a high chance of returning to the Senate.
On 8 August 2017 the Senate resolved, with all-party support, to refer the matters of Ludlum and Waters, as well as that of Matthew Canavan, to the High Court as Court of Disputed Returns.
Matthew Canavan
On 25 July 2017, Liberal National Party Senator Matthew Canavan resigned from his positions of Minister for Resources and in the Cabinet over doubts as to his eligibility to be a member of the parliament, after discovering that he was considered by the Italian authorities to be a citizen of Italy.
Canavan's mother had registered him as an Italian resident abroad with the Italian consulate in Brisbane in 2006. Canavan stated he was unaware of this until his mother was prompted to inform him following news of the holding dual citizenship. The government has taken the view that he is not in breach of the Constitution as the registration was not made with Canavan's knowledge or consent.
On 8 August 2017, with all-party support, the Senate referred the position of Canavan, along with the cases of Ludlam and Waters, to the High Court as Court of Disputed Returns. The Attorney-General indicated that the Commonwealth will argue, in favour of Cavanan, that s 44(i) requires a personal acknowledgement of the connection. Canavan spoke in support but stated that he would not be voting in the Senate until the High Court decision. The reference was moved by Roberts's party leader Pauline Hanson, with his support. He did not respond to a question in the Senate whether he would be voting before the Court's decision.
Barnaby Joyce and Fiona Nash
On 14 August 2017, Deputy Prime Minister Barnaby Joyce (leader of the National Party of Australia and member of the House of Representatives) announced that the New Zealand government had informed him that he might be a citizen of New Zealand by descent from his father; he stated that he was "shocked to receive this information". At his request, the government moved in the House of Representatives that Joyce's position be referred to the High Court as Court of Disputed Returns, which was carried with all-party support. Prime Minister Malcolm Turnbull stated that legal advice from the Solicitor-General confirmed Joyce's eligibility, but refused to release that advice or to say how it may have distinguished Joyce's position from that of Canavan. Joyce has now renounced his New Zealand citizenship and produced documentary evidence of having done so. He has not resigned from his ministerial offices and will continue to vote in Parliament. The Leader of the House, Christopher Pyne, named four Labor members of the House whose positions under s 44(i) he claimed to require explanation and suggested that there are "many more" among the Opposition. Leading experts on constitutional law do not share the government's confidence about Joyce's eligibility.
Three days later on 17 August, 2017, Nationals deputy leader and Senator, Fiona Nash revealed that she had British citizenship by descent through her Scottish father. She has elected not to step down from leadership or cabinet while she is referred to the High Court. Later he said that he had renounced Greek citizenship but, on finding that he might be British, he had sought clarification from British authorities. On 19 August he announced that British authorities had confirmed that he is a British Overseas citizen, a lesser form of British nationality. He will not resign from the Parliament, but will await a High Court decision.
New Zealand political row
A row ensued between the Australian Government and the New Zealand Labour Party after it was reported that staff member for an Australian Labor senator had asked a New Zealand MP to find out whether or not the Deputy Prime Minister of Australia, Barnaby Joyce was a citizen of that country. Australian Foreign Minister Julie Bishop accused New Zealand's Labour Party of being "involved in allegations designed to undermine the government of Australia" and Australian Prime Minister Malcolm Turnbull accused the Australian Labor Party of conspiring "with a foreign power". This claim was outright refused by the New Zealand Minister of Internal Affairs, Peter Dunne, as well as NZ Labour Leader Jacinda Ardern.
Implications for parliamentary majority
On August 15, 2017, Bob Katter, the sole MP of Katter's Australian Party, announced that he was withdrawing his support for the Turnbull Government as a result of this scandal. However, independent MP Cathy McGowan has indicated she will maintain 'confidence and supply' for the Turnbull Government, meaning that if MP Barnaby Joyce is disqualified from Parliament, the government will still have the confidence of a majority of members. However, the disqualification of any additional government members, or Joyce's defeat in a consequent Division of New England by-election, could prove fatal to a government with a one-seat majority and limited crossbench support.
Various cases of elected politicians discovering that they unknowingly hold or may hold dual citizenship have been referred to the High Court of Australia, however they have yet to be ruled on. As of August 20, Senators Scott Ludlam and Larissa Waters of the Australian Greens have voluntarily resigned their seats, and their cases have been referred to the High Court alongside those of: Deputy Prime Minister Barnaby Joyce and Senators Matt Canavan and Fiona Nash, all National Party ministers in the Turnbull Government; Senator Malcolm Roberts of ; and Senator Nick Xenophon, leader of the Nick Xenophon Team.
There will be a directions hearing for at least some of the cases in the High Court on 24 August.
Background
Section 44 of the Constitution of Australia states:
The wording of this section of the Constitution has cast doubt on the eligibility of several MPs and Senators who may hold citizenship with countries other than Australia, either through failure to renounce their citizenship of their country of birth or through ignorance of the citizenship by descent laws of their parents' and grandparents' countries of birth.
Precedent exists of the High Court disqualifying parliamentarians on the grounds of s 44(i). In Sykes v Cleary, the High Court ruled that both major-party candidates in a 1992 by-election for the Division of Wills were ineligible to replace the separately ineligible independent Phil Cleary; Labor's Bill Kardamitsis and Liberal John Delacretaz failed to renounce their Greek and Swiss citizenships respectively. In addition, the High Court ruled that a candidate who takes "all reasonable steps" to renounce their non-Australian citizenship before their election would not face disqualification. The most immediately relevant case is Sue v Hill, in which London-born Heather Hill, elected as a Senator for Pauline Hanson's One Nation in 1998, was ruled to have been invalidly elected and disqualified by the High Court after failing to renounce her citizenship with the United Kingdom. Following a recount, Hill was replaced by Len Harris, the second Senate candidate for One Nation.
In the current Parliament of Australia, following the 2016 election, the Turnbull Government holds a one-seat majority in the House of Representatives, which would be be lost if two government members of the House were to resign due to disqualification. The government would then be vulnerable to an Opposition motion of no confidence, which if carried would require the government to resign. In any case, a by-election would be held in any vacated seat and the government's majority would be removed if it lost least one such election.
On 14 July 2017, Scott Ludlam announced that he still retained New Zealand citizenship from his birth in New Zealand. Ludlam had settled in Australia with his family aged eight, and had previously assumed he lost his New Zealand citizenship when he naturalised as an Australian citizen in his mid-teens. It is expected that Ludlam will be found to have been ineligible to be elected, requiring the seat to be filled by a recount of the . The next un-elected Greens candidate on the Senate ticket in Western Australia was Jordon Steele-John, a 22-year-old disability rights advocate, who will become Australia's youngest senator in history if he replaces Ludlam.
The revelation prompted Ludlam's fellow co-deputy leader of the Greens, Senator Larissa Waters, to similarly discover that she held Canadian citizenship, and to resign four days after Ludlam. Waters was born to Australian parents who were briefly living in Canada, and returned with them to Australia while still a baby. She had previously believed that she was solely an Australian citizen, and that if she had wished to gain Canadian citizenship she would have needed to taken active steps before age 21. However, she discovered she had in fact always held dual citizenship since birth. Her seat is also likely to be filled by a recount, giving former Democrats leader Andrew Bartlett, who held the second position after Waters on the Greens' 2016 Senate ticket in Queensland, a high chance of returning to the Senate.
On 8 August 2017 the Senate resolved, with all-party support, to refer the matters of Ludlum and Waters, as well as that of Matthew Canavan, to the High Court as Court of Disputed Returns.
Matthew Canavan
On 25 July 2017, Liberal National Party Senator Matthew Canavan resigned from his positions of Minister for Resources and in the Cabinet over doubts as to his eligibility to be a member of the parliament, after discovering that he was considered by the Italian authorities to be a citizen of Italy.
Canavan's mother had registered him as an Italian resident abroad with the Italian consulate in Brisbane in 2006. Canavan stated he was unaware of this until his mother was prompted to inform him following news of the holding dual citizenship. The government has taken the view that he is not in breach of the Constitution as the registration was not made with Canavan's knowledge or consent.
On 8 August 2017, with all-party support, the Senate referred the position of Canavan, along with the cases of Ludlam and Waters, to the High Court as Court of Disputed Returns. The Attorney-General indicated that the Commonwealth will argue, in favour of Cavanan, that s 44(i) requires a personal acknowledgement of the connection. Canavan spoke in support but stated that he would not be voting in the Senate until the High Court decision. The reference was moved by Roberts's party leader Pauline Hanson, with his support. He did not respond to a question in the Senate whether he would be voting before the Court's decision.
Barnaby Joyce and Fiona Nash
On 14 August 2017, Deputy Prime Minister Barnaby Joyce (leader of the National Party of Australia and member of the House of Representatives) announced that the New Zealand government had informed him that he might be a citizen of New Zealand by descent from his father; he stated that he was "shocked to receive this information". At his request, the government moved in the House of Representatives that Joyce's position be referred to the High Court as Court of Disputed Returns, which was carried with all-party support. Prime Minister Malcolm Turnbull stated that legal advice from the Solicitor-General confirmed Joyce's eligibility, but refused to release that advice or to say how it may have distinguished Joyce's position from that of Canavan. Joyce has now renounced his New Zealand citizenship and produced documentary evidence of having done so. He has not resigned from his ministerial offices and will continue to vote in Parliament. The Leader of the House, Christopher Pyne, named four Labor members of the House whose positions under s 44(i) he claimed to require explanation and suggested that there are "many more" among the Opposition. Leading experts on constitutional law do not share the government's confidence about Joyce's eligibility.
Three days later on 17 August, 2017, Nationals deputy leader and Senator, Fiona Nash revealed that she had British citizenship by descent through her Scottish father. She has elected not to step down from leadership or cabinet while she is referred to the High Court. Later he said that he had renounced Greek citizenship but, on finding that he might be British, he had sought clarification from British authorities. On 19 August he announced that British authorities had confirmed that he is a British Overseas citizen, a lesser form of British nationality. He will not resign from the Parliament, but will await a High Court decision.
New Zealand political row
A row ensued between the Australian Government and the New Zealand Labour Party after it was reported that staff member for an Australian Labor senator had asked a New Zealand MP to find out whether or not the Deputy Prime Minister of Australia, Barnaby Joyce was a citizen of that country. Australian Foreign Minister Julie Bishop accused New Zealand's Labour Party of being "involved in allegations designed to undermine the government of Australia" and Australian Prime Minister Malcolm Turnbull accused the Australian Labor Party of conspiring "with a foreign power". This claim was outright refused by the New Zealand Minister of Internal Affairs, Peter Dunne, as well as NZ Labour Leader Jacinda Ardern.
Implications for parliamentary majority
On August 15, 2017, Bob Katter, the sole MP of Katter's Australian Party, announced that he was withdrawing his support for the Turnbull Government as a result of this scandal. However, independent MP Cathy McGowan has indicated she will maintain 'confidence and supply' for the Turnbull Government, meaning that if MP Barnaby Joyce is disqualified from Parliament, the government will still have the confidence of a majority of members. However, the disqualification of any additional government members, or Joyce's defeat in a consequent Division of New England by-election, could prove fatal to a government with a one-seat majority and limited crossbench support.
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