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The resignations of the Greens’ two co-deputy leaders has sent MPs scrambling to check their citizenship qualifications, and has led to calls for constitutional revision. By Karen Middleton.

Greens and the dual citizenship debacle

Greens Senator Larissa Waters arrives with her partner and their daughter to announce her resignation in Brisbane on Tuesday.
Credit: AAP Image / DAN PELED

Australia’s third prime minister, Chris Watson, served nine years in the first parliament, including four months in 1904 as its leader.

But, as the world’s first prime minister from a labour party was actually born Johan Christian Tanck to a Chilean–German father and a New Zealand–Irish mother in Chile in 1867, it’s highly likely he was not strictly eligible to be there at all.

It seems Watson’s claim to be a British subject courtesy of his mother’s Scottish second husband George Watson, who moved the family to New Zealand, was not questioned when he crossed the Tasman to Australia and stood for federal parliament.

Without documented proof that he had taken steps to renounce his foreign citizenship, Watson was a prime candidate for disqualification under section 44(i) of Australia’s then brand-new constitution, which precludes parliamentarians from owing an allegiance to a foreign power.

But nobody doubted him enough to press the case.

The past week’s scramble for assurance from embassies and consulates has demonstrated parliamentarians can still hide from section 44, even by accident. But the chances of exposure are much greater.

In just five days, the Australian Greens lost two of their nine senators to the issue of dual nationality, having served nine and six years respectively, unaware their elections were invalid.

The party is now replacing its two co-deputy leaders, New Zealand-born West Australian Scott Ludlam and Canadian-born Queenslander Larissa Waters. Both thought their naturalisation as children had extinguished their previous citizenship and both were wrong.

Pending High Court rulings, they will likely face a bill for their salaries, although precedent suggests it will be waived.

Greens leader Senator Richard Di Natale has initiated an overhaul of party processes to establish a central administration and ensure credentials are checked thoroughly in advance.

Ludlam made his sudden announcement on Friday of last week, having just received evidence of his New Zealand citizenship – although occasional public questions had been raised over several years.

Prompted by his predicament, Waters checked her own status and discovered she was in the same situation. Like Ludlam, Waters apologised to her party and the electors and resigned.

Di Natale did not try to spin the situation. “It was a stuff-up,” the Greens leader said on Tuesday. “There is absolutely no other way of describing it, and we had our internal party processes that failed to pick this up … We are committed to a thorough root-and-branch review so that we strengthen our governance, improve our internal processes and we make sure that this never happens again.”

He said they had now double-checked everyone. “The last thing I want to be doing is standing here again with another announcement.”

Di Natale told The Saturday Paper that the party’s national council would meet soon to work through the detail, starting with an audit of current practices. “Nobody wanted to see this happen to Scott and Larissa – it has been a sobering moment for us all.”

Di Natale said he had no doubt the state-based parties in the Greens confederation – some of which have previously resisted establishing a central administrative body – would support “this important project”.

“We need to guarantee that the national body has the resources and appropriate staffing levels to provide the guidance that we need to ensure that, right around the country, regardless of which state or which local branch we are considering, we are compliant with electoral law and conducting ourselves at a level and in the way that the public expects of us,” he said.

This applied even to “a grassroots, volunteer-led organisation that doesn’t take large corporate donations”.

Theoretically, Ludlam and Waters could stand for election again and return to parliament if a few hoops are jumped and hurdles cleared, starting with renouncing their foreign citizenships.

Once the High Court confirms, as expected, that they were never eligible, it will order a countback of senate votes as if Ludlam and Waters never appeared on the ballot. Their seats will likely go to those next on their respective tickets.

They are 22-year-old WA candidate Jordon Steele-John, whose cerebral palsy confines him to a wheelchair, and 52-year-old Queenslander Andrew Bartlett, who was previously a senator for the Australian Democrats and served briefly as its leader.

If the High Court taps them, they must accept. But if they wish, they can then resign, making way for their party to nominate someone else.

In Queensland, that’s not likely, although late in the week questions were asked over whether Bartlett’s university work at the time he nominated put him foul of section 44 restrictions on running while holding a government-paid position.

In WA, Steele-John – who has been a Greens member since he was 16 – has decided to take up the senate seat. This will make him the youngest senator to date. He is studying politics and history at university, but will seek a deferral.

The Greens party room met on Thursday and appointed the party’s only lower house member, Adam Bandt, and Senator Rachel Siewert as acting national co-deputy leaders, until a ballot of the full party room can be held.

The implications for the Greens reach beyond the immediate shock of losing two high-profile senators.

Some supporters are already despairing that the resignations expose their party to allegations of unprofessionalism.

Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten both wasted no time in fulfilling expectations.

“It shows incredible sloppiness on their part,” Turnbull told Channel Nine. “It’s extraordinary negligence.”

Shorten said the Greens “need to get their house in order”.

He said: “I feel for the two individuals concerned – they are quite meritorious individuals – but I think Australians would say, ‘What is going on with the Greens political party? Are they ready to be serious political operators?’ ”

The Labor Party’s acting national secretary, Paul Erickson, said he was “confident that every member of the Labor caucus has been properly elected”.

Acting Liberal Party federal director Andrew Bragg said eligibility was the state branches’ responsibility but “we’re confident in our processes”.

“I’m not aware of any transgressions,” he told The Saturday Paper.

But the events of the past week have sent MPs and senators scrambling. Among 226 parliamentarians, there are 23 others born overseas, 10 in Britain.

Many took to social media, asserting that they were not dual citizens.

Two other Greens – Singaporean-born Peter Whish-Wilson and British-born Nick McKim – declared they were in the clear. Former prime minister Tony Abbott shared confirmation that he renounced his British citizenship in 1993.

But the issue doesn’t only affect the foreign born. Sydney-born New South Wales Liberal MP Jason Falinski has Polish heritage. His Russian-born mother and Polish–Jewish father were stripped of Polish citizenship when they left in 1958 and by the time he was born in 1970 they were Australians.

They were eligible to reclaim their Polish citizenship under changes to Polish law but didn’t, so Falinski says he is only Australian. If they had before he was born, he would have been automatically Polish.

Falinski told The Saturday Paper that he had checked his status before running for local government in 2008, despite it not being a formal requirement at that level. He double-checked with the Polish embassy on Wednesday.

Some countries bestow citizenship automatically on citizens’ descendants. Some make it very hard to renounce. Labor senator Sam Dastyari insists he spent $25,000 in lawyers’ fees and many months to formally separate himself from his Iranian citizenship.

Others are now checking their own lifelong assumptions.

The events have prompted renewed calls to either update or abolish section 44 and what some constitutional experts argue are its outdated ineligibility provisions on “allegiance”, criminal convictions and holding an “office of profit under the Crown”.

Queensland University law professor Graeme Orr says candidates should not have to unravel other countries’ laws to run for parliament.

“Hundreds of thousands of people would not know if they were eligible to stand for parliament,” Orr told The Saturday Paper.

“The UK doesn’t have this rule anymore and yet we’re stuck with it.”

He noted minor parties were being most affected. “Is it because they’re unprofessional or is it because they can’t afford expensive legal advice?”

Orr said section 44 should be “hosed away” and replaced by provisions to address conflicts of interest later, if they arose.

Parliament has already examined the issue via a house of representatives inquiry 20 years ago. Anticipating problems, it called the allegiance provisions “archaic” and recommended a referendum to change section 44 to require only that candidates be Australians.

The report noted the constitution was drafted before Australian citizenship even existed. It questioned whether dual citizens should be excluded and highlighted the difficulties in renouncing other citizenships, or even knowing about them.

The report said concern was better focused on the risk of “divided loyalty or foreign influence”, which could afflict Australian citizens, and that this should be safeguarded in legislation. It said holders of other citizenship could be allowed to serve provided they were also Australian and did not exercise any other citizenship’s rights or privileges while in office.

At the time, the Howard government accepted those recommendations, vowing to “give further consideration to a number of substantive issues” before finalising a referendum proposal. It never proceeded.

Turnbull opposes change. With a one-seat majority, and the fact any MP’s ineligibility in the lower house would force a byelection, he will want to be absolutely certain there isn’t a Chris Watson in his ranks.

This article was first published in the print edition of The Saturday Paper on Jul 22, 2017 as "Green exit hams". Subscribe here.

Karen Middleton
is The Saturday Paper’s chief political correspondent.

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