As Turnbull accuses Labor of trying to "blow up the Parliament" over the s44 debacle, external events are conspiring to prove its worth, writes Dr Lee Duffield.
AUSTRALIA exited the weekend on a worrying note: Prime Minister Malcolm Turnbull was shaking hands overseas with the President of the United States, but looked as weak as that President looked unstable.
Turnbull's "elected" mantle had actually slipped, his Parliamentary majority lost as another Government MP, who did not know what citizenship he had, handed in his papers. Turnbull threatened to "out" Opposition MPs for the same offence in the High Court — possibly, once again, presuming what the court would “so hold”.
National sports teams turned in mixed performances — not quite the distraction that was ordered.
Divisiveness struck in election-bound Queensland, around movement politics on the far right.
Rough-housing of 600 asylum-seekers on Manus Island got to the point of serious concern as to whether things would get so out of hand that massacre would be in the air.
Amid all this, the charisma and dignity of the Remembrance Day services, as ever, could not obliterate the dull ache of pitiful memory and loss.
SORTING THE MESS — CHECK IF WE CAN NOW GET THIS CLEAR
Monday saw the Government agree to a settlement on "dual citizenship", which, according to the Labor leadership, was, in fact, the plan that they had put forward.
They had told the Government that all MPs should submit public dossiers on their citizenship background:
- in better detail than the Government initially had in mind (for example probing to the grandparents’ generation, not just Mum and Dad); and
- by 1 December (as against initial Government hopes to stall it off a few weeks, then into 2018) — it would be called the “disclosure process”, to show up whether any more members should go, or be sent by the Parliament to court for a ruling on their eligibility.
That is now going to be the plan: everybody goes through the disclosure process and then, depending on what is or is not disclosed, some may have to go to court to see if they are eligible to stay on in their seats.
Labor @SenatorWong discusses the citizenship disclosure deal that's been struck between both sides of Government. #sun7 pic.twitter.com/fHjpRNXY7N
— Sunrise (@sunriseon7) November 13, 2017
Labor Senate Leader Penny Wong told Parliament on Monday that Malcolm Turnbull had been “dragged kicking and screaming” into the deal. The standard had to be, she said, whether members had taken "reasonable steps" to get any foreign citizenship revoked before running for election.
The agreement was made with Senator Mathias Cormann on the part of the Government. He is the cigar-smoking, jobs-cutting free-marketeer Finance Minister from the days of the 2014 Budget. On Monday, as Acting Special Minister of State and Deputy Government Leader in the Senate, Cormann showed that, as a man from Belgium – where they patch up coalitions or have no government at all – compromise might be lurking in his blood. He might have worked out that it was a feasible way to get the whole matter over with in the coming few months.
The Government actually had three performances running in public, in various directions, at the same time, causing some continuing confusion:
- Cormann settling with Labor on behalf of the Government;
- Turnbull and his Leader of the House in the House of Representatives, Christopher Pyne, doing some of the "kicking and screaming" referred to by Wong; and
- Attorney-General George Brandis having a fresh go at talking law about it.
The Turnbull and Pyne exercise looked much like a game of muddying the waters. Never mind about disclosure processes; they had enough numbers they said – with some help from the Greens – to send four Labor members straight off to the High Court. If that could be brought off it would end the immunity so far enjoyed by Labor.
All of the parties have had members caught in the dual citizenship trap, except Labor, which says it just followed due process and checked each of its candidates thoroughly. Labor says its people “took all reasonable steps” to renounce excess citizenship identity, as was required. If some of its Members can be dragged in anyway and then kicked out as well, in the event of by-elections, Labor will also have something to lose. However, pushing political opponents involuntarily in the direction of a court hearing would upset some earlier legal thinking — see notes on Brandis’ role, below.
BLOWING UP PARLIAMENT?!
Turnbull and Pyne also had an arresting line — that being obdurate about not dobbing in members they thought had done no wrong, Bill Shorten was trying to “blow up the Parliament”. What could they have been talking about?
It might have meant just that by not helping the Government out, he was making Parliamentary debates more tense and testy — that is to say, a pale shadow of the rabble created by their own side during the good old days of the crisis of late 1975, just before the “Dismissal”.
Possibly, in early November, they were thinking of the Guy Fawkes plot. With England in the grip of bitter sectarian politics, that Catholic nobleman and his friends stacked an enormous cache of gunpowder underneath the Parliament building, intending to blow it up — only to be caught on 5 November 1605, and later hung, drawn and quartered.
It sounded as though if they could garotte Shorten this time, they would have done it.
LAW TALK
The third strand of Government activity was Brandis setting out in Parliament to forensically deal with the known evidence on two of the Labor members being accused of being Pommies, or Kiwis, or Greeks and so on — the two with the smallest by-election margins in their seats.
As IA heard it, Brandis said that, as candidates last time, they might have made reasonable efforts to discharge foreign citizenship, but had not got that done before the election was called and he thought they could well fall short of the High Court’s standard. The issue might be whether they got it done before they actually nominated for election and, at time of writing, it seems that one, or both might not have done that.
We can’t simplify it at this point.
Independent legal opinion says, on one hand, having made all reasonable efforts should enable the members to stay in their seats. On the other hand, independent legal opinion indicates that if formal separation from the Old Country was possible and not formally achieved in time, then those members have to go. (Maybe independent legal opinion-givers just don’t know.)
Court precedents don’t give an open-and-shut answer, although the High Court in its last judgment on the MPs, in October, seemed to put some onus on adults seeking public office:
'Nomination for election is manifestly an occasion for serious reflection.'
Should aspiring MPs – some, admittedly, not over-intelligent – be held to the same standard of performance, getting together evidence in double-time, as applicants for Centrelink benefits? Maybe so.
Will the Govt refer Labor MPs @justinekeay & @SusanLambMP to the High Court? George Brandis says that’s up to Bill Shorten. #abc730 #auspol pic.twitter.com/wQ66dli9W6
— abc730 (@abc730) November 13, 2017
Wong remarked that Brandis’ earlier reservations – about politicians being sent to the High Court by their political opponents being “dangerous” – had lapsed and observed that he had not been included in the Opposition-Government negotiations.
The overall Government drive against the Labor members looked like “desperation”, she said — a hope that if it came to by-elections the Government might still hold on to a majority. Brandis and Turnbull – who both had legal backgrounds before entering politics – are prone to talk law. After changes and misjudgements, citizens may not be taking much notice.
BACKGROUND TO THE "BLOW-UP"
In the background to all this, of course, is Section 44 of the Australian Constitution, which requires MPs to be Australian citizens only, not beholden as citizens to any other state.
Opinion polls have continued to show erosion of the government position in national voter intention — the latest, published by Newspoll on Monday, showing a stable Labor lead of towards ten per cent, two-party-preferred.
The academic Clive Hamilton produced a case history for discussion on the topic of allowing joint citizens to sit in the Australian Parliament. It was announced that printing of his book, Silent Invasion: How China is turning Australia into a Puppet State, was stopped by the publishers because of possible difficulties, including legal difficulties anticipated from Chinese sources.
Monitoring and pressure on Chinese citizens in Australia from their home authorities has caused widespread concern, especially in universities — where thousands of students from China are thought to have come under surveillance or outside supervision, together with some actual inhibition of curricular and teaching. The problem with the publishers, Allen and Unwin, wanting to delay the book, or pull it, is its bearing on the subject matter of the book itself: is this legendary Chinese “soft power” at work against Australian cultural freedoms? Without its publication, do Australians get to know what the author wants to say?
How would we go with MPs holding foreign citizenship being subject to relentless interventions from some former home country like that?
Dr Lee Duffield is a former ABC foreign correspondent, political journalist and academic.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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