The citizenship crisis is politics at its worst, has been unresolved far too long, and is a distraction from much more important issues. That’s the view from the real world, reflected by voters in focus groups this week.
As Malcolm Turnbull and Bill Shorten play politics over a disclosure motion to be put to parliament, these ordinary people are baffled and impatient with the whole affair.
While the four groups of “soft” voters (two each in Brisbane and Townsville) were part of a Queensland election study for the Institute for Governance’s research at the University of Canberra, the dual citizenship imbroglio was raised unprompted and the comments give an insight into ordinary Australians’ thinking about the fiasco engulfing the parliament in general and the Turnbull government in particular.
People are mystified by the fallout from the High Court decision, especially when citizenship of Britain, Canada or New Zealand is involved. As one participant put it: “It’s not like they’re aligned with some enemy”.
For many, the Constitution is out of date, failing to reflect modern Australia, and should be changed. “Australia is a young country so we’re going to have a mixed bag,” said a female flight attendant from Brisbane.
There’s also concern about money. “This business of saying you’re going to have to quit parliament – it’s going to cost a bomb,” a retired Brisbane woman complained.
People do differ, however, about the substance of the issue. Some think the consequences have been too severe, or invite ridicule. “It’s making Australia the laughing stock of the world,” said one.
A few were judgemental, taking the attitude the law is the law and candidates should have checked they met the rules. A retired Brisbane man was blunt: “We wouldn’t even be in this situation if they weren’t negligent”.
In terms of MPs rectifying their status, some voters thought the inadvertent dual citizens should be allowed to correct their situation without having to resign – “just renounce their citizenship and go on with it”, as one put it. If only it were so easy – unfortunately, that path is no answer constitutionally. The test is a person’s eligibility when nominating.
Some people favoured definitive action, such as a comprehensive audit or a fresh election. A Townsville retiree believed “they should have a full, complete audit of all federal politicians, of current and future ones, to make sure you comply with Section 44”.
There was much cynicism about Turnbull resisting a full audit. A young Brisbane voter opined that it was “probably because he’s hiding people”; another said the prime minister had not got a big enough parliamentary margin “to be sure that he’s going to keep the power”. More generally, a Townsville health worker condemned “a lame-duck federal government not achieving anything”.
The bottom line is that voters want the matter fixed quickly. “We don’t want this distraction to stretch for another two months. It’s just dumb,” declared a Brisbane engineer, while a young female occupational therapist from Townsville said: “I’d like them to get it finished and done with so they can look at other issues. … Let’s just finish it”.
Given the paralysing effect of the crisis, with multiple names now being tossed into a cauldron of uncertainty, tactical skirmishing can only become increasingly unacceptable to the public. Yet even if the games were put aside, this nightmare can’t be resolved fast, despite the voters’ frustration.
It demands both short-term and permanent solutions.
Most immediately, bipartisan agreement is required on the disclosure regime, with parliamentary decisions before Christmas on whatever High Court referrals are to be made. The leaders have been fighting and posturing over the detail but agree on pre-Christmas action.
Any MPs in obvious breach should resign at once – the recent cases have set benchmarks with brutal clarity. If that happened with lower house members, court referrals wouldn’t be needed. If senators quit, the court would formalise their disqualifications and order recounts to fill their seats.
But when cases are arguably more murky – MPs who have renounced their foreign citizenship but only received their confirmation after nomination, such as Labor’s Justine Keay and the Nick Xenophon Team’s Rebekha Sharkie – High Court clarification surely would be needed. In light of the potential extent of the debacle, it’s just possible the court might decide their efforts were sufficient.
Assuming there are some dual citizens in the lower house, the timing of byelections will depend on when resignations and/or court decisions come.
There is no way of knowing whether the process will be catastrophic for the government, or something less. It would all depend on the ownership and margins of the seats hit with byelections, and what attitude the voters took in them.
What about the long term?
Despite all the difficulties involved, it’s increasingly looking like the best course would be a referendum to attempt to change the Constitution’s Section 44 (i), which prohibits dual citizens sitting in parliament.
The objective should be to capture the broad intent of the provision, and facilitate candidates meeting that intent.
Turnbull is right when he says that, despite our multicultural makeup, people would not vote for a change that permitted dual citizens to sit.
But if there was bipartisan support, there surely would be a reasonable chance – perhaps no more than that – of passing new wording saying that a candidate must have only Australian citizenship and that a sworn declaration was sufficient to renounce any other citizenship.
The High Court judgement in effect makes federal MPs – and so the federal parliament – hostage to changes in other countries’ laws. This is unacceptable. New constitutional wording would stop that.
I must admit to altering my view on this matter. I’ve previously thought voters are so angry at politicians they wouldn’t want to make things easier for them. But in view of the chaos, it may be that people would be persuaded by the need to instil clarity.
Anyway, it would be worth a go, because while a defeat would be bad, it wouldn’t have the sort of negative consequences of, say, the loss of a referendum on Indigenous recognition.
If this course were taken, the commitment to a referendum could be made soon, but the vote could then be held with the election, to prevent an argument about cost.
There has been speculation that perhaps the situation could be sorted by a change to citizenship legislation. But constitutional expert Anne Twomey, from Sydney University, doubts this – given the court’s indication that determining issues of dual citizenship involves the laws of other countries over which Australia has no control.
Twomey – who doesn’t advocate constitutional change – also points out that if the citizenship part of Section 44 were to be tackled, it would only be prudent to also clarify the parts of the same section that disqualify from parliament anyone who holds an office of profit under the crown or has any direct or indirect pecuniary interest in any agreement with the public service of the Commonwealth.
This makes sense, although admittedly it could complicate the task of selling a referendum.
But let’s stand back. If our politicians, and we as voters, can’t update a troublesome section of this more-than–century-old document, what does it say about all of us?