Analysis & Opinion

Parliament could Pardon its Dual Citizens, Committee Hears

Parliament has the power to grant an “amnesty” to allow MPs to renounce foreign citizenship without going to the high court, a committee examining the citizenship crisis has heard.

In a hearing in Canberra on Friday, the University of Queensland constitutional expert Graeme Orr proposed a political solution to the crisis that has seen nine senators and lower-house members quit or be ruled ineligible to sit in parliament.

Orr told the joint standing committee on electoral matters that although section 44 of the constitution states that subjects or citizens of a foreign power are ineligible, the parliament has “very broad latitude” about what happens as a consequence.

Under section 47, the parliament has power to determine “any question respecting the qualification of a senator or of a member … or respecting a vacancy in either house of parliament”.

Orr said the power in the section “could’ve been used earlier this year for a full audit and amnesty”, giving MPs who had acted reasonably and “not deliberately taken up conflicts of interest” time to resolve the issue by renouncing foreign citizenship.

Orr said while “it would be a bad look if parliament ignored the rulings of the high court about whether a person was duly chosen”, it was up to parliament to “implement the consequences” of a disqualification.

“I’m not saying it’s a politically tenable option, but it is a potentially legally tenable option,” he said.

Orr said that once a parliamentarian had renounced foreign citizenship, they are no longer subject to a disqualification, potentially allowing them to rectify the problem without a referral to the high court.

Orr said the high court can be “a bit unworldly” and suggested his “radical and romantic” alternative would also allow parliament to exercise leniency in cases such as Liberal Josh Frydenberg, whose citizenship status is caught up in the fact his mother fled Hungary to escape the Holocaust.

Senior general counsel for the attorney general’s department, David Lewis, agreed it “should be possible” for both houses to deal with potentially ineligible parliamentarians without a referral to the court, such as through debates about whether they are qualified or a committee process to assess their case.

He said there was “no compelling reason of public policy” for Barnaby Joyce, who was not aware he was a New Zealand dual citizen, to have been ineligible for parliament and noted he was easily re-elected in a byelection, demonstrating the “futility” of section 44(i).

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Williams said section 44(i) was “not workable in its current form” and proposed a referendum to abolish it and replace it with a power for parliament to set the terms of disqualification, which would allow change with community standards.

Williams criticised the “stalemate” that had developed – with Labor’s Katy Gallagher and David Feeney referred to the high court, but Labor and the Coalition refusing to refer other MPs.

The University of Sydney’s Prof Anne Twomey told the committee section 44(i) could be changed at a referendum to disqualify people who have “done an act” to become a foreign citizen, rather than people who have the status, possibly unknowingly.

Twomey said the court’s ruling that the election of a candidate stretches from the date of nomination until a place is validly filled had caused “a great deal of problems recently”.

She pointed to the recent decision to disqualify Liberal Hollie Hughes because she took an office of profit, while National Fiona Nash had apparently won the election but held a Senate seat she was not eligible for.

On Friday the high court heard there were doubts about the eligibility of former crossbench senator Jacqui Lambie’s replacement, Devonport mayor Steve Martin.

Martin, the court heard, could be disqualified on the basis of holding an “office of profit under the crown”.

Once a special count by the electoral commission next Tuesday confirms Martin as Lambie’s replacement, the court will then consider whether he is eligible at a hearing in January.

The court also heard Nick Xenophon Team senator Skye Kakoschke-Moore, who resigned over her dual citizenship, wants to be able to contest a court-ordered special count because her former running mate Tim Storer had quit the party since the 2016 poll.

Her counsel, David Jackson QC, said Storer’s election in a special count would “not reflect the choice exercised by the voters” of South Australia. A directions hearing will be held in late January.

The replacement of former Senate president and Tasmanian Liberal senator Stephen Parry, who also discovered he was a UK dual citizen, will be done via a special count next Tuesday. He is expected to be replaced by former senator Richard Colbeck.

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