Barnaby Joyce, Fiona Nash, Matthew Canavan, Malcolm Roberts, Nick Xenophon. Scott Ludlam and Larissa Waters, the Magnificent Foreign Seven have just had their cases decided by the High Court and only Xenophon and Canavan have survived. The others have all been ruled ineligible for election based on their dual citizenship1. The loss of Joyce is a significant blow to the Government, because he sat in the lower house, and the government have only a one-seat majority.
Section 44 of the Constitution is very specific and clear2. While many people have said that this part of the constitution is archaic and needs to be amended, those whingeing the loudest have a vested interest in it being ignored, or at least interpreted by the High Court in a fairly liberal fashion. However, you cannot ignore the constitution. It is the foundation of our democracy; you do not get to choose which bits you like and which you do not. That is what the high court is for, in part; to interpret the constitution.
Michael Collett has related some of the history of this part of the constitution and argues that if the version argued earlier had been included, this problem for the Foreign Seven would not have been so serious. This version stated that it would disqualify anyone who “has done any act whereby he has become a subject or citizen or entitled to the rights and privileges of a subject or a citizen of a foreign power.” Indeed, Sir John Hannah Gordon, wanted to add “or has not since been naturalised” He was shouted down by several other who were at the debate, with Barton arguing that a dual citizen could leave our parliament and ‘serve against us’3.
While the Foreign Seven were all possibly citizens of other nations, these nations were all western democracies, and are currently on our side of the political fence. However, what would happen if a person was a dual national of a country who does not look upon our sovereignty favourably?. If in government, they would be party to a great deal of confidential or, depending on their office in government, secret information, possibly even relating to defence matters. Therefore, I’d be inclined to keep Section 44 of the constitution just as it is. Not only does it help weed out those with allegiances to other nations, it also weeds out the occasional halfwit. When they realised their situation, Ludlam and Waters took the honourable path and resigned their seats in the Senate, but Joyce and Canavan did not; all Canavan did was to go to the backbench, while Joyce did nothing. The extra $3,000 or so a week might have been a motivation for him. Their main claim to be allowed to remain in parliament was the Shane Warne defence (‘it was mum’)4, or the Sergeant Schultz defence (‘I know nothing’)5. The fact that a politician could ask to be believed when stating they didn’t know, itself beggars belief. While the detailed reasoning behind the High Court’s decision will take some time to process, ignorance of the law is no defence5. Similarly, supposed ignorance of your citizenship status is also no defence.
Now that we are all experts in section 44 of the constitution, has anyone checked up on section 46? Very interesting…
Not that interesting now that the ‘damages’ have been limited.