Barnaby Joyce and Labor's s44 giant piñata

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Deputy Prime Minister Barnaby Joyce (image via YouTube).

Barnaby may get off but even if he's found ineligible under s44, he will likely return, redder than ever in 2018. Sydney bureau chief Ross Jones reports.

AUSTRALIA IS about to stick its hand into the beehive known commonly as Section 44(i) of the Constitution.

This little section may well dictate the future of our nation.

The problem is that right now there is no precedent upon which the court can hang its hat.

Section 44(i) excludes from Parliament any person who:

a) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power;

b) is a subject or a citizen of a foreign power;

c) is entitled to the rights or privileges of a subject or a citizen of a foreign power.

While bits a) and b) have been previously chewed over by the High Court, bit c) has not.

Back in 1988, the Court disqualified NSW Senator Robert Wood of the Nuclear Disarmament Party.

While Wood was found ineligible under the Commonwealth Electoral Act and not s44(i), Their Honours (Mason, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron) felt the need to add a commentary to their judgment which said:

The interpretation of s.44(i) and its applicability to an Australian citizen, who is also a citizen or who may, conceivably against his own wishes, be 'entitled to the rights or privileges of ... a citizen' of the United Kingdom or of countries other than Australia, are questions of great contemporary importance. As those questions were not fully argued, their resolution must be left for another day. 

Nothing has changed since 1988 — no new precedents set, no new interpretations made. (Sue v Hill did not concern part c.) "Another day" seems to be now.

Or soonish, anyhow. Various media reports have speculated August, or maybe October, for the High Court to announce its opinion, but the truth is no-one has the slightest inkling — including, I suspect, Their Honours.

All we know for sure is there is to be a directions hearing on Thursday, but that’s just the starting gun.

Until the decision comes down, Deputy Prime Minister Barnaby Joyce will need every centimetre of his thick hide to withstand accusations of illegitimacy.

As will the Turnbull Government collectively. Add this woe to an already embattled Coalition and watch them stagger. Labor will look at the Government benches and see only a giant piñata.

Might Barnaby get off?

Pryles suggests that the third test only disqualifies a person who

presently enjoys the rights or privileges of a foreign national. A right to acquire a foreign nationality, unless it carries with it the present enjoyment of such benefits, is no more than the right to enjoy the benefits ... at some time in the future. (Source: aph.gov.au)

Of course, he might. High Court judges are an interesting lot and the matter is seriously complex.

What, exactly, is "entitlement"? What are "reasonable steps"? What is "section’s intention"?

If Joyce does get off, things will proceed as usually as they can for an infighting Coalition with no apparent policy agenda.

But if things don’t go well, Barnaby would still have a trick up his sleeve — a by-election.

In 2016, Barnaby enjoyed 66 per cent of the New England two-party-preferred vote and would probably romp it in.

And as Barnaby has apparently now renounced his Kiwiness, he would then be free to settle back on the front bench.

The fun question is, what would happen during the time between Barnaby being forced to leave Parliament and his (presumably) triumphant return?

This return could take some time.

Let’s say Their Honours bring down their opinion in early September, say 4 September — the first day of a Parliamentary sitting period scheduled to finish on 14 September. 

An election cannot be held until at least 33 days after the writs are issued. You’d think the Coalition would issue writs immediately and 33 days later would conveniently be a Saturday, 7 October.

So, in this totally speculative circumstance, the Coalition would be reduced to 50/50 for two weeks and, as we know, a week is a long time in politics.

Anything could happen.

Other speculative timings are equally fraught.

The best scenario for the Coalition would be for Their Honours to take their time and deliver a decision in, say, late December, which would allow the Coalition to foist a by-election on holidaying New England voters and have Barnaby back before Parliament resumes in 2018.

The extracts included above are from Sarah O Brien’s Parliamentary Library publication, 'Dual citizenship, foreign allegiance and s. 44(i) of the Australian Constitution'. In it, she discusses in detail the operation of Section 44 as it apples to dual citizenship and foreign allegiance. Page 41 has a section titled, 'Third test — "Entitled to the rights ... of ... a citizen"'. It is worth a read.

For my money, I reckon the odds favour Barnaby being found ineligible under s44(i), but coming back redder than ever in 2018.

Be funny if he came back to Opposition.

Sydney bureau chief Ross Jones is a licensed private enquiry agent. You can follow Ross on Twitter @RPZJones.

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