The Greens’ annus horribilis cranked up another notch yesterday as the dual citizenship debacle claimed a second senator in nearly as many days.
As with Scott Ludlam in Western Australia, a replacement for outgoing Queensland Senator Larissa Waters looks sure to be determined through a court-mandated recount of last year’s Senate votes that excludes the candidate or candidates deemed ineligible.
It is no less certain that this will lead to the election of the next candidate along on the party’s Senate ticket, but an important distinction between the two cases arises from the fact that the Greens achieved their best case scenario of winning two seats in WA, but failed to do so in Queensland.
The next candidate along in WA, 22-year-old disability advocate Jordon Steele-John, held an unwinnable position, which the party felt it could give over to a harmless display of gesture politics, and it is expected that he will not take the unexpected opportunity to fill Ludlam’s vacancy.
By contrast, the No. 2 candidate in Queensland was a real contender: Andrew Bartlett, who represented the Australian Democrats in the Senate from 1997 to 2008, and was later endorsed by the Greens for high-profile candidacies in the federal seat of Brisbane in 2010 and the city’s lord mayoralty in 2012.
While Bartlett’s status as Democrats leader during the party’s terminal phase from 2004 onwards might be thought a bad omen for a party grappling with a rebellion in its largest state branch, he has remained popular in progressive political circles over the years through his activism and online presence.
If the enlistment of Bartlett constitutes some sort of silver lining, it’s small comfort against the loss of two of the party’s most electorally appealing figures, and the exposure of serious deficiencies in its organisational professionalism.
[Another Green falls by the wayside as Larissa Waters discovers Canadian citizenship]
However, those at a loss to understand how this could have happened may be underestimating the extent of the mess that section 44(i) of the constitution has developed into after a series of uncompromising High Court rulings in the 1990s.
Because dual citizenship can be acquired by default, those with parents or even grandparents born overseas can be ensnared if the relevant country’s citizenship laws are accommodating enough.
An instructive example of where this can lead is provided by Nick Casmirri, an electoral commentator and blogger who confronted the issues involved when he nominated for Australian Democrats preselection in 2004.
As Casmirri describes it, his Italian-born father does not entitle him to citizenship of that country, since he relinquished his own Italian citizenship when he became an Australian citizen before Casmirri was born; but he could potentially become an Italian citizen via his Australian-born mother, who never had occasion to abandon the Italian citizenship rights she has through her own parents, and could thus apply for an Italian passport and in turn make Casmirri eligible for one as well.
Does the potential for Casmirri to attain an Italian passport, depending on what his mother does, constitute entitlement to “the rights or privileges of a subject or a citizen of a foreign power”, such as would disqualify him from parliament under section 44(i)?
To have any real confidence about the answer, he would probably need to enlist a lawyer, as it seems Larissa Waters should have done — and even then, that lawyer’s conclusion might prove different from that of the court, given many of the issues involved have not been properly tested.
Probably the safest course would be to befuddle the Italian authorities with a letter inquiring about a probably non-existent process for relinquishing a citizenship he doesn’t actually hold, so that if it came to it, an argument could be made before court that he had passed the test of taking “all reasonable steps” to renounce his rights.
[What we lose when we lose Scott Ludlam]
Graeme Orr, a legal academic at the University of Queensland and specialist in electoral law, argues that the High Court brought little expertise to bear on such issues when it made its landmark rulings, owing to the infrequency with which it is called upon to adjudicate on points of electoral law, and still less expertise on the knotty realities of party politics.
The result is two strands of unfairness: one against the many millions of citizens without a clean run of Australian heritage going back a few generations, who are presented with obstacles that serve no real purpose if they wish to run for parliament, and another against minor party and independent candidates, who lack the major parties’ ready access to legal advice.
The only solution to the problem is constitutional reform, requiring a daunting referendum process that the major parties have no incentive to pursue.
good coverage (much better than MSM goof-balling) and last paragraph is widely ignored and underestimated. Liberal and Labor have experienced party secretariats with the legal machinery and finances to screen their candidates, unlike minor parties Greens, PHON etc and Independents, who are mostly the ones to fall foul of s44, causing periodic disruptions upheavals and humiliations in the annoying Senate crossbench (and potentially, with the House Indies in minority governments). Pragmatically, the two major parties have no incentive to change the Constitution when this works so well for them politically. Just let the debacles roll on. Haw haw. This should be of concern to We the People and to the Free Press.
People should know their citizenship status. No excuses if running for parliment.
Larissa is an Australian by birth, she has two Australian citizens who were never Canadians and under Canadian law changes in 2009 and an accident of birth in Canada she is not a Canadian either.
All the Canadian born citizenships of non citizen Canadians were revoked in 2009 when Jason Kenny adopted our regime.
Larissa under the law has never taken out or sworn allegiance to anyone because she did not have to acquire citizenship because she is not a bloody migrant.
To quote the Guardian: “Waters was born in Canada to Australian parents who were studying overseas and came to Australia when she was a baby, growing up in Brisbane. She has not returned to Canada since she was 11 months old.”
I’ve got to say that until yesterday (perhaps Friday), if I were in that same situation, I would have believed that I was an Australian citizen.
My father was born in New Zealand and emigrated to Australia when he was 3. When about 82 Dad had to retire as he could barely walk after a biopsy, and a couple of months later applied for a pension, but had difficulties because it turned out he was still a New Zealand citizen. My Grandmother was also born in New Zealand.
I was born in Australia, and have never travelled outside of Australia’s borders, and until reading this paragraph about 10 minutes ago, I would have never considered that there was any possibility I could hold citizenship in any other country:
“Because dual citizenship can be acquired by default, those with parents or even grandparents born overseas can be ensnared if the relevant country’s citizenship laws are accommodating enough.”
Alan, I assume that you consider me completely irresponsible for not knowing that there was even a remote possibility that I could also be a citizen of New Zealand. I still don’t know whether that possibility actually exists.
Commonwealth members grant you certain priveleges they normally reserve for their own citizens (“the rights or privileges of a subject or a citizen of a foreign power”)* which is a technical breach of section 44… so having a three-generation lineage in this country STILL won’t save you. Not if the Court uses the same reading I just did.
But the “big tent” parties access to heavy-duty legal support didn’t stop three Ministers from thinking that they could commit sub judice contempt of court and get away with it.
*(it’s kind of the point of being a Commonwealth, but Germany isn’t a member, Eric)
If only it were possible to wipe the smile off the dial of Abetz. Give him the option of going back home to Deutschland or a short stint in an off shore detention centre. I can but dream.
It seems to me that the whole issue of “allegiance to a foreign power” applying to citizens of Canada and New Zealand and other Commonwealth/Empire countries simply would not have occurred to or been intended by the framers of the Constitution because they were subjects of the one monarch. The loyalty of Her Majesty’s subjects in any of her domains was to her, not to the colony or domain.
These people are in the actual business of making laws. What can I say but, “Tough titties”.
Greece is one of many countries which do not allow the repudiation of nationality which is why males have to be very careful when they visit lest they be conscripted into the military.
I can think of at least three politicians (state & federal) in the past who would thus have fallen foul of s44 and just hope that Sen. Xenophon is not the next victim of this ‘hands across the sea’ refusal to recognise repudiation of the claims of “far away countries of which we know little”.