Citizenship saga: Turnbull decides everything's fine because it has to be

By Stephen Easton

August 21, 2017

MELBOURNE, AUSTRALIA – OCTOBER 19: Minister for the Arts and Sport Senator George Brandis speaks to the media during the press conference announcing Netball Australia will receive $AUD 2.4 million in government funding at the State Netball and Hockey Centre on October 19, 2007 in Melbourne, Australia. (Photo by Quinn Rooney/Getty Images) *** Local Caption *** George Brandis

With no option but to carry on and hope for the best, the Turnbull government is trying to project an air of supreme confidence to reassure voters that the dual-citizenship saga will not be its undoing.

Deputy Prime Minister Barnaby Joyce and Regional Development Minister Fiona Nash will continue wielding executive power as ministers, despite being revealed as dual citizens, and the government claims their eligibility to stand at last year’s election is all but certain to be confirmed by the High Court. A messier alternative to this rosy scenario is possible, but not worth contemplating for Turnbull, at least not in public.

“I do not think there is a problem and I don’t think there’s any doubt.” — George Brandis

Newspoll results published today show support for the government falling to 46% versus 54% who would prefer the opposition to take over, and the increasingly shaky administration will have to keep up appearances for several months at least.

Attorney-General George Brandis thinks it will be October when the High Court begins considering the citizenship status of the parade of parliamentarians whose positions have been put in doubt by the revelations of recent weeks.

When Senator Matthew Canavan was the sole member of the government among the group, which now also includes high-profile independent Nick Xenophon, senior members of Cabinet agreed with his decision to stand down as Resources Minister. But the tune changed when Canavan was joined by the two most senior Nationals ministers, Joyce and Nash, both of whom have refused to step back from their ministerial posts.

Cabinet Secretary Arthur Sinodinos said this was because Canavan made a quick decision after the unexpected revelation but advice was sought from solicitor-general Stephen Donaghue when Joyce and Nash became involved.

“In the case of Barnaby and Fiona, there was more time behind the scenes to work this out, work out what to do, get proper legal advice, make sure the solicitor-general had had a chance to look at the advice,” he said on the ABC’s Insiders.

Sinodinos admitted the issue had blindsided the Coalition, and said he did not think there was a case for changing the relevant part of the Constitution a few weeks ago — but that changed when the government was threatened.

“Now this has developed, this whole situation has developed in a way that I don’t think anybody in the Government anticipated that it would.

“Now it is clearly affecting the Parliament as a whole. … The question in my mind, and I was of the opposite opinion a couple of weeks ago, down the track after we have sorted this all out and the High Court have had a chance to look at this, maybe we need to go back to some of the reports of the Parliament itself about the status of parts of section 44 in the light of what happened in our society.”

It appears the claims made by Canavan, Nash and Joyce that they were unaware of their dual citizenship will form a major plank in the Commonwealth’s legal arguments.

Brandis said that in past High Court rulings, there had been “quite a lot of judicial language to the effect that there has to be some conscious acknowledgement of an obedience or adherence or allegiance to a foreign sovereign” and that Joyce had only found out that he was considered a New Zealand citizen on Thursday afternoon.

Stephen Donaghue

Brandis refused to say whether, in the government’s view, Joyce was actually a citizen of NZ or not. Canavan could have remained as minister as well, he added.

“Now the Government has taken advice from the solicitor-general, Dr Donaghue, and on the basis of that advice, we are confident that on the proper interpretation of Section 44, Mr Joyce, because of his unawareness of his status as a New Zealand citizen, if indeed that turns out to be the case, would not be disqualified,” he told the ABC. Nash also claimed she was unaware of her UK citizenship.

The decisions of Joyce and Nash to carry on despite the uncertainty is now the “standard” and in the event the High Court rules they have been ineligible all along, the Cabinet Secretary claimed any executive decisions they had made in the past would hold.

“My advice I have received to date is that decisions in the Parliament and decisions by ministers, the validity of those decisions, will not be affected,” said Sinodinos.

“I do not think there is a problem and I don’t think there’s any doubt,” added Brandis on Sky TV.

But the “de facto officer” principle the government is relying on is not that simple, according to leading constitutional law expert Anne Twomey, who thinks standing down as minister would be the “prudent” course for Nash, Joyce and any other minister who is “under a cloud” due to their citizenship status.

“Of course, strictly speaking, you don’t have to be a Member of Parliament, even to be a minister for a period of time. Under Section 64 you can be a minister without being a Member of Parliament for three months,” the Attorney-General pointed out.

That’s correct, but Twomey argues it is precisely this three-month limit on non-parliamentarians serving as ministers that could cast doubt on the validity of their past decisions. “That three months ran out a long time ago,” she writes, if one counts from the last election in July 2016.

Brandis refuses to release Donaghue’s legal advice that informed the decision to carry on as if everything is fine. “There are simply no compelling reasons in the current circumstances” for this secrecy, argues University of New South Wales law professor Gabrielle Appleby in the Australian Financial Review today.

“Governments never release their legal advice for good reason, and we won’t be departing from that orthodox practice on this occasion, but I can tell you … we have taken advice from the solicitor-general in relation to Mr Joyce,” said Brandis last Tuesday.

He suggested some academic lawyers would naturally take a view that is as unfavourable as possible to the government.

The eligibility of two other Nationals to sit in Parliament has also been challenged under the part of the Constitution that deals with pecuniary interests in financial deals with the Commonwealth. The opposition has challenged MP David Gillespie’s election in the High Court and on Friday, questions were raised along similar lines about Senator Barry O’Sullivan.

Another member of the Nationals, Minister for Infrastructure and Transport Darren Chester, was upfront about the obvious failures of diligence on the part of the Coalition’s rural contingent, speaking to the ABC.

“Well we have had a rotten few weeks, we acknowledge that, in terms of making sure we have the vetting procedures up front when people nominate to become a candidate,” he said.

“We need to do better at that and we will do better at that. I mean we have had the situation in the past where people simply sign their nomination form, indicating that they don’t have any dual citizenship.”

Chester also offered a similar explanation to Sinodinos on why Canavan stepped aside from representing the mining industry — as he saw his role as Resources Minister — but Joyce and Nash are holding on to their porfolios for dear life.

“I think that is a very good question, and the answer, quite simply, is that Barnaby and Fiona, upon receiving the information from the New Zealanders and the UK Home Office, sought legal advice through the solicitor-general immediately.

“The advice they received was that they were still eligible – had a very defendable case, if you like, to take to the High Court — and that is where, quite appropriately, the decision will be made. Matt acted without getting that advice and made his own decision at that time to report that he should be going to the High Court to seek some clarity.”

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