Frydenberg, Parry and the s44 dual citizenship domino effect

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Cartoon by Mark David / @mdavidcartoons

The ramifications of the High Court 'Citizenship Seven' decision may run deeper than imagined for the Turnbull Government, says Michael~John Shea.

DEEPER GROOVES run through the dual citizenship debate and recent High Court decision concerning the so-called "Citizenship Seven" than can be detected at first glance.

As I have pointed out previously in IA, dual citizens have been sitting in the Australian Federal Parliament illegally in the recent past — and probably long before that. It is not only in the current term of Parliament that we have had Members and Senators who were ineligible to run for election — and who have been earning better than a decent salary.

The Sydney Morning Herald's Adam Gartrell records that five recidivists in the recent batch have earned in the vicinity of $9 million between them while sitting in Parliament illegally. As Noely Neate notes there is no talk of any of these individuals facing further court action over their illegal behaviour. Are there more dual citizens to still emerge? Minister for the Environment and Energy Josh Frydenberg, Member for Mitchell Alex Hawke and Member for Bennelong John Alexander have been named over the past few days as potential dual citizens.

It might be that the question on the nomination form is too difficult for some candidates to understand. Section 44 of the Constitution states that a nominating candidate is ineligible to nominate for election to Federal Parliament if he or she 'is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power.' Perhaps this isn't plain enough English.

Besides the known "elected" MPs and Senators, a more worrying aspect of all this ignorance of the law is the number of other candidates over the years who may have been ineligible to even have their name on a ballot paper. They remained unelected and history might not even record their lawlessness.

However, there is at least one detrimental outcome of such behaviour and that is the question of how election outcomes have been affected by ineligible candidates over the years? That situation is immeasurable but it's interesting to contemplate. The Australian Electoral Commission relies on the honesty of candidates nominating for a seat on the aspect of dual citizenship. Recent events demonstrate the folly of that.

At every Federal election, votes are cast for a list of names, numbers are assigned, results are tallied and preferences are distributed — not only to eligible candidates but also to any ineligible candidates. If ineligible candidates were not on the list of names, their preferences (or those of their voters) would go to other names on the list. So even if an eligible candidate wins a seat in the Lower House or the Senate it may have been because of distributed preferences from ineligible candidates.

For example, writing in The Conversation, statistician Adrian Beaumont suggests that given Tasmanian Liberal Senator Stephen Parry’s dual citizenship – and thus ineligibility to sit in the Senate and subsequent count-back – eligibly elected Tasmanian Greens Senator Nick McKim might be replaced by Pauline Hanson's One Nation candidate Kate McCulloch, after the count-back is conducted.

How likely it is for the High Court to remove a legitimately elected Senator maybe only Malcolm Turnbull can judge, given his recent prescience as to how the High Court “will so hold”.

What is obvious from this dual citizenship shemozzle is that the Federal Parliament of Australia, in all likelihood over a very long time, have been if not illegal, then at least dodgy in regard to illegibility. Therefore, all legislation, but especially any bills that were carried by tight margins, are now in question. And this not only affects the Federal legislation but also State laws, because as Section 109 of the Constitution states,

'When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.'

If examples were found where an "illegal" Federal Parliament law has over-ridden State law in contentious circumstances, that might be enough to bring the Federation to an end. As Backman Turner Overdrive so succinctly put it, 'you ain’t seen nothin' yet'!

Michael~John Shea is a freelance writer who lives on Queensland's Sunshine Coast.

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