What a mess; and, for once, it didn’t start with Malcolm Turnbull. The citizenship fiasco is a consequence of the Constitution, the High Court and politicians who assumed too much. But it’s now the Prime Minister’s responsibility to fix and, so far, he’s making a complete hash of it. Even a dud isn’t responsible for everything that goes wrong. But you can rely on a dud to further muck things up.
After floundering for weeks, Mr Turnbull has now announced a process of sorts to deal with the citizenship crisis but one that won’t actually resolve it. Requiring MPs to disclose to the Clerks of the House of Representatives and the Senate that they are Australian citizens and have no other citizenship has the same faults as the existing procedure for disclosures of potential conflicts of interest. Other than the media, no one tests the disclosures and there’s no mechanism for determining whether the rules have been breached. The Clerks don’t investigate whether MPs’ disclosures are full or accurate and they can take no action themselves if they’re not. Typically, Mr Turnbull’s action is going to prolong this crisis, not fix it.
As long as doubts remain over MPs’ eligibility to sit in the Parliament the business of government will be paralysed. If citizens have a duty to obey the law – as they do – MPs have an even higher duty to adhere to the basic law of the land, the Constitution itself. No one will take the law seriously or the government seriously if people can’t be sure that MPs, regardless of their politics or their competence, are at least validly elected. Until this question is settled, the entire system will be dogged by a crisis of confidence and of its very legitimacy. It has to be fixed, and fast, but can’t be fixed by facile prime ministerial appeals for common sense; especially when, in the next breath, he equates questioning a minister’s explanation with genocide denial.
It’s hard not to feel sorry for Josh Frydenberg. He’s a hard-working minister with some prospect of going to the very top, even though he should have made keeping the lights on a higher priority than cutting emissions. He can hardly be blamed for not knowing that Hungary had made all people born there during the war (even transients) automatically its citizens or that Hungary granted citizenship automatically to the children of its citizens. Similarly, Barnaby Joyce could hardly be blamed for not anticipating he might have inherited citizenship from his father who’d left New Zealand as a teenager and had never held a Kiwi passport.
Maybe the High Court should have paid more attention to the historical reality that Kiwis, Canadians and Britons (along with Indians, South Africans and all the other citizens of a far-flung empire) were all subjects of the Queen back in the 1890s when the Constitution was drafted and so could scarcely have been considered foreign for the purposes of Section 44. Maybe the Court should have made a distinction in its recent decision between inadvertent foreign citizenship and citizenship that had been sought. In any event, it didn’t and it hasn’t and until the Constitution is changed or the Court changes its mind, it’s clear that someone who holds any citizenship other than Australian can’t sit in the Parliament.
The reality of an immigrant society means that dozens of MPs are potentially in jeopardy. About 50 per cent of Australians were born overseas or have a parent born overseas. Bill Shorten’s father was British and Tony Abbott was born in London although both of them have published proof that they’ve renounced any entitlement to UK citizenship. But Penny Wong hasn’t published any evidence of renunciation of the Malaysian citizenship that would have been her birthright and Tanya Plibersek has produced no evidence that she did not inherit her parents’ Slovenian citizenship. There are almost certainly many more examples of MPs that could fall foul of other countries’ rules. The virtue of a citizenship audit is that the actions that people took or failed to take would be tested and the auditor could make a judgment on eligibility.
But Turnbull insists that there will be no audit. Instead, MPs will provide information but there will be no mechanism (other than self-incrimination and resignation or referral to the High Court – it’s not clear whether by the government or the Parliament) to determine who’s in and who’s out. In all likelihood, a number of MPs will turn out to be ineligible or problematic and there will have to be further referrals to the High Court and subsequent by-elections. There’s no telling what the outcome might be in terms of parliamentary numbers and the taint of illegitimacy will dog the government.
There is, however, another way forward. In fact, there’s only one way to resolve this crisis. It would also give Turnbull a chance to show some leadership, albeit in a big gamble: announce an election early in the New Year that would give all MPs and candidates the chance to get their citizenship houses in order. It’s the only way to quickly re-establish a Parliament that we know has been validly elected. It would be a lot less messy and a lot more honourable than death by a dozen by-elections.