News: What is happening in the MP eligibility cases?

After a lengthy break for renovations (and rare full court hearings in Sydney and Melbourne), the High Court will return to its Canberra headquarters next month. The first case on the business list for Tuesday 10th October is:

In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator Matthew Canavan, Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts and the Hon. Barnaby Joyce MP (C11/2017, C12/2017, C13/2017, C14/2017 & C15/2017)

These are five of the seven matters referred to the High Court concerning possible ineligibility under s44(i) of the Constitution, specifically its disqualification of ‘a citizen… of a foreign power’. It is likely that the remaining two matters (concerning Senators Nick Xenaphon and Fiona Nash) will  be heard at the same time. (An eighth pending matter about MP eligibility – Labor’s challenge to David Gillespie over his ownership of a shopping centre company with Australia Post as a tenant – is not yet listed and involves entirely separate issues and processes.)

The seven matters to be heard in October aren’t regular High Court challenges where one person sues someone else. Rather, they are all referrals made under the following provision of federal election law:

Any question respecting the qualifications of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question.

Four of the matters involve current senators, one involves a current representative (Barnaby Joyce) and two involve vacancies (Greens Senators Ludlam and Joyce, who have already resigned under s19 of the Constitution.)Before the High Court can determine the cases, three things need to be settled: the parties, the lawyers and the evidence.

Neither house of parliament is a party to the referrals. Rather, the parties to are determined using the following provision:

The Court of Disputed Returns may allow any person who in the opinion of the Court is interested in the determination of any question referred to it under this Part to be heard on the hearing of the reference, or may direct notice of the reference to be served on any person, and any person so allowed to be heard or so directed to be served shall be deemed to be a party to the reference.

After the High Court advertised the seven proceedings on its website, Kiefel CJ held that the parties to the proceedings included each of the respective MPs or former MPs, as well as the Commonwealth Attorney-General. She also rejected a number of other requests to participate or make submissions from others, including barrister John Cameron (who outed Scott Ludlam as a New Zealander) and Joe Bloggs (who wanted to argue that Australia is a ‘foreign power’ for the purposes of s44(i), an interesting, if unlikely, claim that would presumably have vacated the entire parliament.) The only outside party who made the cut was former MP Tony Windsor, who was defeated by Barnaby Joyce at the last election.

As for the lawyers, the Court’s concern was that all claims put by the parties had a ‘contradictor’ (someone arguing the other side.) On 15th September, Kiefel CJ sorted through the parties’ arguments and decided that in the case of:

  • Australian-born New Zealander Joyce, the A-G’s argument in favour of eligibility would be contradicted by Windor’s argument against eligibility
  • Australian-born Italian Canavan and Brits Nash and Xenophon, the A-G’s similar argument in favour of eligibility would also be sufficiently contradicted by Windsor’s argument against Joyce’s eligibility
  • Indian-born Roberts, Roberts would be arguing in favour of his eligibility and the A-G would be arguing against
  • Canadian-born (but speedily departing) Waters, the A-G would be arguing in favour of her eligibility and Waters would be arguing against (!)
  • New Zealand-born Ludlam, both the A-G and Ludlam would be arguing in favour of ineligibility

So, there will be contradictors in all except Ludlam’s case (and Kiefel CJ was seemingly content to have no-one argue in support of him.) If the High Court accepts the Attorney-Genera’s argument – basically that Australian-born folks should be less readily disqualified under s44(i) – then just two of the seven MPs (Roberts and Ludlam) will be declared ineligible.

Finally, there’s the evidence. The Court (as is its practice) opted to gather evidence in advance of sorting out the applicable legal tests. It is clear that there will be affidavits from each of the MPs, other lay witnesses to events surrounding their citizenship and nominations and experts on foreign law. Of these, Kiefel CJ thought it wise to arrange for the cross-examination of Roberts’s witnesses about his attempts to renounce his British citizenship, naming Stephen Lloyd SC to be the ‘factual’ contradictor (after the Attorney-General demurred.) Accordingly, Roberts himself, as well as two family members and an expert, testified before Keane J on Thursday, with a transcript available here. Justice Keane’s judgment was released on Friday afternoon, ruling that Roberts:

  • was indeed a British citizen when he was nominated (due to the lack of a declaration of truth and the required fee in his attempted renunciation email in June last year)
  • knew he was not always an Australian citizen and that his foreign citizenship was a ‘reasonable and substantial possibility’, and
  • had (but didn’t utilise) plenty of methods to ascertain and renounce his British citizenship prior to his nomination.

While these findings certainly look bad for Roberts, any ruling on whether he was ineligible to be elected will have to wait until the October hearing of the full High Court and the orders the Court will likely make soon after.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

38 thoughts on “News: What is happening in the MP eligibility cases?

  1. A useful and illuminating piece, thanks.

    I do find it incredibly galling that we taxpayers are funding the MPs’ legal expenses: the questions at hand are about their actions and knowledge at the time of nomination as candidates. They were not yet elected (or re-elected) as MPs and so the old ‘shield of the Crown’ legal cost coverage seemingly ought not apply; and yet, the Commonwealth is picking up their legal expenses incurred in relation to activities pre-election but not that of other contrary parties, notably another candidate, Tony Windsor. It just doesn’t seem right.

    • I can see your frustration, but (except for the Greens, who resigned), they are all elected MPs until the Court rules otherwise. None of the MPs chose to be involved in the litigation – it was a referral by Parliament – and the issues go well beyond their cases. Windsor did choose to be involved (although his involvement is saving the Cth from having to fund contradictors, so there does seem to be a good argument to meet at least some of his costs) – he can probably recover his costs, but only if he wins. As for whether the MPs can be made to pay back the Cth’s costs if they lose, I guess the Court could make an order if it wanted to, but I doubt anyone will ask.

  2. I put a couple of submissions to the federal Joint Standing Committee on Electoral Matters last year, arguing that candidates should have to state their place of birth and, when born overseas, include a detailed statement setting out why they aren’t disqualified by s44. (See http://www.aph.gov.au/DocumentStore.ashx?id=4c7ac06f-41c1-426a-b3ef-619ad26dcabc&subId=414724 and http://www.aph.gov.au/DocumentStore.ashx?id=4a63e30d-6490-4cef-bad8-fcc246b7767e&subId=414724)

    My thinking was that the information in question was a matter of public interest, which should be put on the public record in a systematic rather than piecemeal way. I also noted that the as the issues can be intricate in some cases, this would be a way of forcing candidates to treat their declaration of qualification with appropriate seriousness. This wouldn’t of course cover cases of citizenship by descent, but would nevertheless be useful.

    Needless to say, I feel vindicated by the recent panic, and the mad scrambling by quite a few parliamentarians to get such statements out. And the Roberts case proves, if proof were needed, exactly how sloppy the approach of some candidates can be. It would make much more sense to get these statements on the public record before an election, rather than having a repeat of the farce of the last two months.

    There is also an issue of equity. The references before the High Court relate to people who either fessed up honestly, or (in the Roberts case) had made a series of strange and contradictory statements. But it’s entirely possible that a candidate born overseas who simply refused to answer any questions on the topic (as Mr Abbott did for several years) would be able to get away with being a dual citizen, as it would be difficult for anyone else to prove that he or she had never renounced citizenship of his or her country of birth.

    • You’re right,I think, though I also think there are problems with forcing people to make statements (and hence make expensive legal inquiries) as a precondition for running for parliament. Ultimately, the system will still favour people who aren’t candid over ones who are. Not everyone will necessarily even know where they were born, I guess. The real problem, of course, is the stupidity of s44(i), but that’s not anything that can be easily solved.

      • The use of “no one expects the Spanish Inquisition” candidate declarations makes mockery of our system.

        Keep an eye on NCAT where a challenge for a recent council election will explore similar issues – albeit not of such National significance.

        The issue is that no one expects to be challenged or caught out!

  3. It is arguably the case that Senator Roberts is effectively a contradictor in the case of former Senator Ludlam. The facts of each case are similar enough that if Senator Roberts survives (which seems unlikely) then Mr Ludlam may also be alright.

    • The Attorney General’s submissions have now been filed and are on the High Court website.They assert that both Ludlam and Roberts were ineligible.The argument in those submissions is that it is necessary for the candidate to be aware of their foreign citizenship.That raises the obvious point-if the candidate is unaware of his status as a foreign citizen,but is aware of the facts which make him so,should he be excused from making inquiries?

      • The Attorney-General’s submissions are incredibly partisan-political in that they are the submissions most convenient for saving his party’s members and nobody else’s. Wouldn’t expect anything else of him, though.

        His proposition that ignorance should be an acceptable excuse is… interesting. Not an excuse his government would accept in immigration law or from welfare recipients, certainly.

        • Arky, I think you’re being unfair. The A-G’s submissions protect Xenophon and Waters too. Waters (at least) is in a different situation to the three government MPs as she wasn’t born in Australia. Saving Ludlam and Roberts would require much tougher arguments. The A-G does point out that Sykes is a dodgy authority because the s44(i) issues were secondary ones in that case.

          As for ignorance of law being an acceptable excuse, it is in many context, including criminal law (including, e.g. people smuggling cases.) But, in any case, the A-G is correct to say that the ‘ignorance of the law’ doctrine has never applied to foreign law. No-one is arguing that ignorance of s44(i) (including whatever strange tests the High Court creates to make it remotely workable) is an acceptable excuse.

          • Senator Waters had already resigned and there’s no way to distinguish Xenophon from the situation involving the government senators.

            When it was just the Greens senators afflicted by s44 concerns, Senator Brandis and others in the government (including the Prime Minister) were harping on their negligence and incompetence, not making the proposition that Senator Waters’ ignorance was excusable at law. I don’t think I’m at all unfair in this instance to suggest that the A-G’s position is based on his partisan political interests given the change in tack as soon as Coalition members were affected and not just Greens.

          • I agree completely with that. That being said, that hypocritical approach has also been (and is still being) taken by the ALP. As for the Greens, it seems to me that Ludlam was probably looking for a way to quit and inadvertently took Waters with him. Resigning involves no cost to Senators, because they can just come back as casual vacancies if wrong and someone else from the list can replace them.if they’re right. The stakes only matter in the House.

  4. The respondent’s submissions have now been filed,with the exception of Senator Roberts.Senators Ludlam and Waters in their submissions say that all the members concerned are disqualified.
    Senator Xenophon argues he is not disqualified because s44 only applies to citizenship acquired voluntarily.He also argues that British Overseas Citizenship is outside s44.
    Joyce’s submissions accept that s44 can apply to his circumstances and does not seek to argue the correctness of Sykes v Cleary.Instead,Joyce asserts that his NZ citizenship was acquired involuntarily and he had no knowledge of it(his father incidentally renounced his NZ citizenship but this occurred after Joyce was born).
    Senator Canavan’s submissions adopt those of the Commonwealth and assert that his circumstances fall within the exception in Sykes.The submissions note that at the time of his birth(1980) he was not an Italian citizen-he became so because of a ruling of the Italian constitutional court in 1983 overturning previous authority.
    Senator Nash’s submissions accept that she was a British citizen pursuant to the British Nationality Acts of 1958 and 1981.Her excuse as to knowledge is weak and consists of statements made to her by her mother.She renounced her citizenship after the election and the renunciation was effective.She adopts Joyce’s submissions as to the effect of s44.
    I’ll leave it to others to express their own views of the submissions,except to say that the submissions of Senators Ludlam and Waters cannot lightly be dismissed.

  5. Jeremy, I note your exclamation mark after the statement that Waters is arguing against her own eligibity. Personally, I would have put 3 or 4 of them. It’s like someone not only pleading guilty in a criminal matter, or conceding liability in a civil case, but engaging counsel to present detailed arguments as to just why they are guilty/liable. Wouldn’t happen, wouldn’t be allowed! Not necessary here in the name of having a contradictor either, because surely Windsor is going to be arguing a “no further exceptions” application of Sykes v Cleary, under which everyone would be disqualified.

  6. Sykes v Cleary, which cites the ICJ’s 1955 Nottebohm Case (Liechtenstein v. Guatemala), indicates that international law is relevant to the interpretation of s 44(i). Therefore, one of the issues which the High Court will need to consider is the relationship between the Australian Constitution and international law. To this end, the following recently published article could point the Court in the right direction: Noam Kolt, ‘Cosmopolitan Originalism: Revisiting the Role of International Law in Constitutional Interpretation’ (2017) 41 Melbourne University Law Review 182. Currently available at: http://law.unimelb.edu.au/mulr/issues/current-issue. To be released at: http://austlii.edu.au/au/journals/MelbULawRw/.

  7. very noticeable the editing and moderation that goes on on this blog. thats especilly the case of posts disaggreeing with gan’s ignorant opnions.

  8. The transcript of the argument yesterday highlights the real tensions in accepting the decision in Sykes v Cleary and at the same time seeking to restrict its scope.

  9. The equally important constitutional issue here is the role of s128.

    Constitutional amendment by Judicial fiat sees expediency – and some logic – challenge the purpose and intent of s128.

    What is also of concern is the whole concept of dual Nationality.

    I fail to understand how an Irish emigrant, living in Australia is banned from voting in Irish matters, but, having obtained Australian Citizenship and returning to Ireland is still allowed to vote in Australian affairs and – based on place of residency resumes the same rights and privileges in Ireland again too.

    • jk. i have often raised this myself re the voting entitlements of non residents. it is odd how people who do not live under the laws made by a gov they live under have a right to vote for or against that gov. apparently the elevtoral commission disallows voting by people out of the country for 10 yrs or more. but thete is also the issue of voting by dual nationals who can readily escape the laws made by a gov they have voted for while a sole citizen cannot. perhaps even our voting eligibility rules need revising as well. not sure what ur point is about s 128 though.

    • The role of s. 128 is to amend the text of the Constitution. The tired “amendment by the Judiciary” argument is basically just shorthand for saying you disagree with how the text of the Constitution has been interpreted. It is not judicial amendment of the Constitution, it is judicial interpretation of the text of the Constitution.

      • One person’s (or court’s) interpretation is another’s redefinition or amendment! And I do take your point about disagreement, however, the point I’m making is that given the High Court make what in effect are unreviewable decisions – immutable until they change their collective minds again?

        If they ignore the common law, stature law and decide the constitution doesn’t actually mean what it says, then I’d say there’s a case for s128. That’s where the GG or parliament should step in…

      • I do not see the need to make orders in advance of reasons in this case. There is no pressing deadline. If any or all of the Parliamentarians involved is ineligible then they have been for some time, including after the circumstances of their dual citizenship was known.

        Given the particular issues of this case, the public is going to have more confidence in a result accompanied by detailed reasons (even if they will be horribly summarised by the media) rather than just a statement that so-and-so is or is not eligible with reasons to follow weeks or months later.

        If I were to predict, I would say the Court will make its decision in the first half of November.

        • what is the point of delaying the decisoon to provide reasons? there are no mechnisms for appeal for which reaons would be useful or needed. the people have a right to a validly elected representives and a by election in new england is required so that no decisions made by joyce are made that may attract administrative challenge.

          • Decisions with reasons to follow are undesirable where they can be avoided, because they give the impression the Court has decided first and then written reasons to justify the decision, rather than the decision flowing from fully thought-through reasons.

            Ideally we get a decision soon AND it comes complete with reasons.

  10. Why all but Mr X will likely be found to be disqualified. Re HC decision today. In the event that an application of a provision (such as s 44 in the Constitution) results in an ambiguous result, the purposive approach to statutory interpretation must be applied. That is both statutory and common law in Australia and in the UK. Applying the purposive approach to statutory interpretation means the Court can consider extraneous or extrinsic materials and documents. In other words, the court must go outside the literal text of the provision to understand the intention of the drafter of the provision. In this case, those documents will be the records and explanatory memoranda etc of the Constitutional Conventions and any speeches made in Parliament etc. Engaging that approach, the HC Court will find that the intention of the drafter in s 44 is to prevent the risk of parliamentarians having divided loyalties and, as a matter of fact, dual citizens necessarily have divided loyalties. Thus, it is simply a question of fact – is this parliamentarian a dual citizen? If so, they are ineligible. Hence, they will all be found ineligible other than Mr X because being a British Overseas Citizen requires that someone needs to apply for it and, in any event, it bestows no rights and privileges. All Australians born before a cut off year in the 1980’s can apply to be British Overseas Citizens including myself and I am an 8th generation Australian descended from a first fleeter! Mr X has not done so and, hence, as a matter of fact, he is not a British subject or citizen and does not have divided loyalties. Mr X will survive. On this interpretation, the legal advice of SG Donaghue and AG Brandis (and of Turnball) was wrong and the matter has been a waste of the High Court’s time and should have been dealt with in parliament by the impugned parliamentarians being dismissed or resigning. Of course ‘the great legal minds’ of Brandis and Donaghue (and Turnbull) should be expected to know this but apparently they did not. Hence, cost orders should be made against Brandis and the SG personally for wasting the Court’s time and for bringing a case without prospects of success and not born by the people through the Cth. But of course the HC wont make that cost order. In the light of this, the whole HC citizenship saga has been a ruse and an abuse of the legal system being solely motivated to preserve the Turnbull government’s majority in the House of Reps to get its legislation though. That has been its only, albeit, improper, purpose

    • Putting aside whether your legal views are right or not, there’s no chance that costs will be awarded to or against anyone, and certainly not the A-G or the S-G. This was a reference from the Senate, agreed to by all Senators, and the parties were appointed by the court. No individual’brought’ this case and even the Greens’ resignations made no difference to the need for the Court to resolve whether the original elections were valid.

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