Labor should never have claimed they were purer than pure on s44, says Dr Binoy Kampmark, who reports on the “world’s most ridiculous constitutional crisis”.
BE WARY of the pure and those who claim no adulteration. The warning is especially important when it comes to political certainty, asserted as convincingly as monarchs before the incoming tide. For months, certainty in the politics of the Australian Labor Party was claimed with a priestly doggedness as members of Parliament fell before them.
According to the federal opposition leader, Bill Shorten, and his shadow cabinet, the ALP had managed to develop a system on weeding out dual citizens so watertight as to be the envy of other parties. Section 44 of the Australian Constitution was canon, gospel and guide.
“We are entitled to be absolutely confident,” claimed Joel Fitzgibbon in August, “that we don’t have a problem.” Scottish-born Labor Senator Doug Cameron had claimed in July that he “couldn’t nominate until I had proof that I renounced by citizenship.”
Then came the Manager of Opposition Business Tony Burke, who repeatedly insisted that Labor stalwarts would comb through the background of prospective candidates, tracing lineage back to the grandparents and ensuring proper compliance prior to nomination. The processes in place for the ALP were, in other words, constitutionally proofed, vaccinated against the viral effects of Section 44. Search for dual nationals and you would find none.
It helped that, for a good period of time, members of the Coalition Government took the bullets and received the blows. The Greens, the Nationals and then the Liberals followed in succession. John Alexander fell in Bennelong; Barnaby Joyce folded in New England, as did a host of senators. All supplied targets of distraction. Throughout, the ALP refused to wilt under the pressure of exposing its own members. It smelt power on the political safari — the prospect of disrupting and perhaps even killing off an already wounded government.
Various tactics of the crude type are being used to distract parliament from the issue. Section 44, tipped with the mighty spear of disqualification, is being deployed by the major parties in pure power terms. This is less an issue of legality than an attempt to seize – or retain – power.
Even as Parliament seemed engrossed in discussing same-sex marriage legislation, a motion was prepared to refer nine members to the High Court. Labor, assisted by crossbenchers, voted to send four of its own, including David Feeney, along with four Coalition MPs and crossbencher Rebekha Sharkie, to appear before the highest court in the land to explain their case.
It seemed, on the surface at least, all too symmetrical — evening the ledger of potential casualties that either major party would suffer. The Coalition opposed the motion, leading to a 73-all tie that was only broken by Speaker Tony Smith, whose casting vote defeated it.
The conspicuous casualty in this case was Feeney, yet another member of parliament who has had a sudden Damascene conversion on the issue of citizenship. The Labor member for Batman, who barely held onto his seat at the last election against Greens candidate Alex Bhathal, claims that renunciation had taken place. There is only one catch: he cannot find the relevant paperwork proving so.
Did a dog eat Labor MP David Feeney's homework?— News Breakfast (@BreakfastNews) December 5, 2017
Professor Anne Twomey comments on @Feeney4Batman's excuse for being unable to produce his citizenship paperwork. pic.twitter.com/l3UGWB5MuQ
In July, the dual citizenship grim reaper threatened to gather him. Even then, a back story seemed to emerge, demonstrating unevenness in ALP practices. A spokesman for the Labor party claimed that Feeney had been pressed to ensure that there was no entitlement to foreign citizenship, his father having born in Belfast, Northern Ireland. In what looked like a chink in Shorten’s armour of crosschecking perfection, the request to produce documentation was declined.
Having been shown up to be distinctly less than perfect on their internal procedures, Shorten has reputedly vented his fury at Feeney’s less than diligent approach.
An unnamed Victorian Labor MP accordingly fumed to Fairfax Media.
“When this started to blow up months ago, he should have been looking for his documents.”
Another approach might have been an exercise of restraint at casting stones in very vulnerable glass houses.
But forced certainty in politics is a catching disease, with the government’s leader in the House of Representatives Christopher Pyne convinced:
“There are no people in the Coalition party room who have doubt over their citizenship at all.”
A lack of doubt on complying with section 44 has hardly helped before the cold black letter reasoning of the High Court bench.
Labor members are now attempting to play another form of certainty: that current legal advice received by certain members on whether adequate steps were taken to renounce citizenship prior to becoming a candidate holds true.
Take, for instance, Senator Katy Gallagher. Her documents reveal that she was a dual British citizen when nominations closed prior to last year’s election. The onus then shifted to the British Home Office to take action. Some 118 days elapsed, by which stage the election process was a foregone conclusion.
ACT Labor senator Katy Gallagher was still a dual citizen of the UK when she nominated for the last federal election https://t.co/zk263dTYm0 #Canberra Photo: AAP pic.twitter.com/4CfwjULZrM— ABC News Canberra (@abcnewsCanberra) December 4, 2017
Such certitude outside the court room should be done with. The only arbiter worth any salt in these proceedings remains the High Court of Australia.
While the justices are no doubt weary about these referrals to the bench, the vagaries of section 44 will continue to haunt this Parliament for its term. This continues to remain, at a pinch, the “world’s most ridiculous constitutional crisis”.
Dr Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge and lectures at RMIT University, Melbourne. You can follow Dr Kampmark on Twitter @bkampmark.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
.@barriecassidy asks @markdreyfusQCMP: why has Katy Gallagher referred herself to the High Court if you think she's taken the reasonable steps to renounce her dual citizenship? #insiders #auspol pic.twitter.com/3wI0SLA03K— Insiders ABC (@InsidersABC) December 9, 2017
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