In joining the High Court case examining Barnaby Joyce’s eligibility for office, Tony Windsor will argue for a countback that could see him win the seat. By Karen Middleton.

Windsor seeking special count on Joyce

Tony Windsor insists his bid to unseat electoral rival Barnaby Joyce is not driven by dislike. “I just think he’s incompetent,” Windsor says, matter-of-factly.

Voters clearly disagreed with him at last year’s federal election – the deputy prime minister won 52.29 per cent of the primary vote in New England, to Windsor’s 29.22. But the former independent member for the New South Wales electorate, who came out of retirement to challenge the incumbent Joyce last year, says his decision to join the High Court case determining Joyce’s eligibility to stay in parliament was not about vengeance. He has been granted standing as the “contradictor”, an important role in a case in which the other parties – Joyce and Attorney-General George Brandis – are both effectively arguing the same thing: that the deputy prime minister should not be ruled ineligible.

After retiring from politics in 2013, Tony Windsor had decided to seek to return to parliament at last year’s election because he believed Joyce and the Nationals were “doing exactly the reverse of what is in the interests of the people they represent”.

“It wasn’t about me wanting to sit back in the green chairs in parliament,” he says. “It was about long-term policy initiatives that I believe the Nationals were ignoring.”

Having mounted that campaign, he says those who backed and funded it to the tune of more than $600,000 are now angry that the candidate who beat him might have been ineligible to stand.

“I had no intention – well, originally, no intention – of [joining the High Court case],” Windsor told The Saturday Paper. “I thought, ‘Oh well, this will be interesting to watch.’ ”

But his supporters were insistent. “They said, ‘You may well have been in an election where there was an illegitimate candidate. We supported this. You should be in this.’ ”

In the first directions hearing before Chief Justice Susan Kiefel, Solicitor-General Stephen Donaghue said the Commonwealth accepted that there needed to be a contradictor.

Justice Kiefel indicated the court would be concerned about whether or not there was such a person who could put contradictory arguments.

In his application for standing, Windsor, through his counsel Ron Merkel, QC, indicated that if accepted, he would argue that Joyce was ineligible at the time of his election by virtue of his New Zealand citizenship and would propose the method through which he should be replaced.

In the second argument lies a surprising twist: Windsor intends to argue that a byelection is not the only course the court could choose to take if it finds Barnaby Joyce can no longer serve.

Windsor argues that should Joyce be found ineligible under section 44 of the constitution, on grounds that he was a dual citizen with New Zealand at the time he was elected, the assumed remedy of a byelection should only be a fallback and not the primary option. Instead, he wants a recount as would normally be held for a senate vacancy. If the court accepts this, Windsor would likely win the seat and the government could fall.

“There is an argument that if you’re going to re-run an election, you can’t re-run it on the same basis as the one where he was an illegitimate candidate,” Windsor said, arguing that the circumstances in place at the time of last year’s election could not be replicated by simply repeating it more than a year later.

“If you’re trying to get to the basis of what the original election was about, you can only do that by a recount. That’s the precedent that has always been followed in the senate. We’ll be arguing, ‘Well, why not the house?’ ”

The High Court has already dismissed that course once in a previous case, the 1992 case of Sykes v Cleary, which touched on two aspects of eligibility as set out in section 44 of the constitution: dual citizenship and the requirement that a candidate not be holding any other “office of profit”.

It rejected the notion of ordering a special countback because it found that would disenfranchise voters who had supported the elected candidate in the Victorian seat of Wills, independent Phil Cleary, and who might have directed their first and subsequent preferences differently had they known he was ineligible.

The court ruled a countback therefore could not reflect voters’ “true legal intent” and a new election had to be held. In their majority judgment, justices Mason, Toohey and McHugh found:

“Here a special count could result in a distortion of the voters’ real intentions because the voters’ preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the first respondent.”

The court likened the situation to if a house of representatives candidate had died between the declaration of nominations and polling day.

In that situation, nominations would be reopened and a new election would be called in that seat because a dead person could not be duly elected.

In the senate, however, because most electors vote above the line for party groups, it is assumed they would support the next candidate on a party ticket if the first was ruled ineligible, so a recount is the usual remedy.

Queensland University professor of law and constitutional expert Graeme Orr insists a byelection is still the only practical remedy and the only precedent.

“It’s a very solid rule,” Orr told The Saturday Paper. “The High Court has held this for a couple of decades.”

Orr says that although there is an old English rule that votes can be “thrown away” if the electors knew of the disqualification, the High Court had never intimated it would adopt it here.

“It would be a travesty if they did a countback and the Coalition had no candidate in that countback,” he said.

But Windsor and his counsel believe there is a case for the alternative course. Windsor is also interested in the issue of penalties for making what may later be found to have been a false declaration on a nomination form.

The constitution doesn’t provide for any penalty if an elected person is found to have been ineligible for election under section 44, other than that the election is voided and he or she is removed from parliament.

Once that section 44 breach is resolved – be it through renouncing foreign citizenship or rectifying ineligibility on one of the other grounds – the person is free to be a candidate again.

Some are asking whether they should be.

Having accepted Windsor as a contradictor, the High Court is due to hold another directions hearing next Friday and its full three-day hearing on October 10, 11 and 12.

In the meantime, the cases for and against the eligibility of seven parliamentarians, including senators Fiona Nash and Nick Xenophon who were part of a formal referral this week, continue to be prosecuted in the political domain – and especially the case relating to Joyce.

With parliament back in session after a fortnight’s break, Labor used every question time to hammer its view that Joyce and his deputy Nationals leader, Nash, should resign from their respective ministerial positions. It also moved seven separate times to interrupt parliamentary proceedings, seeking to suspend standing orders to debate Joyce’s eligibility.

That was exactly what then opposition leader Tony Abbott did during the Gillard hung parliament, to howls of Labor criticism.

The moves this week focused on the fact Joyce was due to be acting prime minister over the weekend as Malcolm Turnbull travelled to Apia in Samoa for the yearly Pacific Islands Forum. Labor’s strategy tried to cast doubt on his eligibility to do that.

Manager of opposition business Tony Burke led the charge. “We have a situation where, for the first time in the history of this parliament, there is doubt as to the constitutionality of the deputy prime minister of Australia,” Burke told parliament. “Prime Minister, stand him aside. If you have any courage and if you have any authority, you would have done it more than a fortnight ago.”

The prime minister accused Labor of ignoring important issues, such as electricity costs, in favour of politics.

“What we’ve had from the opposition instead are big threats of creating chaos and mayhem in the parliament, a swingeing question time strategy,” Turnbull said. “We felt battered by it over here – it was like being flogged with a wet lettuce.”

Barnaby Joyce also believes voters don’t care about the citizenship issue.

“In this crazy boarding school,” he said of parliament, “yeah, it has some resonance. But by gosh once you get outside the door, people say, ‘Mate, that is not what we pay you for.’ ”

Joyce dismissed Labor’s parliamentary tactics as “parlour games” and said he had not contemplated resigning.

“The solicitor-general’s advice was that you are more than likely to win,” Joyce says. “If the solicitor-general’s advice had been that you are more than likely to lose, that would have been a different story.”

Opposition Leader Bill Shorten denies that applying the political blowtorch to Barnaby Joyce is a stunt and suggests it’s the government playing games. “Defending the integrity of the parliament is not a small issue,” he said. “In our political system, parliament is the cornerstone, and so we will make sure that the parliament is operating according to the constitution.”

Turnbull’s decision to keep Joyce in his role is reminiscent of then prime minister John Howard’s tactics during his first term in office in 1997. Howard lost six ministers and his own chief of staff to a travel expenses scandal within his first 18 months in office and thereafter steadfastly insisted those subsequently facing questions over their travel stay in their ministerial jobs and tough it out.

Joyce and Nash are relying on legal advice from the same solicitor-general, Dr Stephen Donaghue, who provided the advice that saw Matt Canavan resign cabinet over the same issue. Canavan sought to explain that discrepancy this week by suggesting that the advice he had received from the solicitor-general had been produced in “half a day”.

“Clearly that advice was not as strong as the government has since received over a number of weeks, which has led them to the conclusions that ministers can stay on,” Canavan told Sky.

The government is declining to make any of its legal advice public.

And until this week, Bill Shorten had been similarly declining to present evidence that he had renounced his British citizenship.

Labor had argued that acquiescing to such demands could inspire the kind of “birther” movement that sprung up among conspiracy theorists in the United States, who wrongly believed former president Barack Obama was not born in America.

But Shorten changed tack on Monday, after former prime minister Tony Abbott called on him to produce his documents or “shut up”.

In parliament, he presented a letter from the British government confirming he had renounced before he was elected.

His move has done little to silence calls from the Coalition for other Labor MPs and senators to also prove they are only Australians.

Within government ranks, there is an unofficial list of at least 14 Labor MPs and senators with foreign-born parents about whom the Coalition still has questions. But Labor denies any of them are in contravention of section 44.

Short of those MPs deciding themselves they have a case to answer and proposing they too be referred to the High Court for determination, there is little that can be done about clarifying their positions ahead of the next election.

Both Labor and the Coalition have rejected calls by the Greens and independents to implement a full audit of the citizenship status of all parliamentarians. Some on the Coalition side have also pointedly not sought clarification from relevant foreign governments about the implications of their own heritage, possibly so as not to activate any dormant citizenship rights.

With the government holding office by a single house of representatives seat, there is a growing sense that a “don’t ask, don’t tell” doctrine is now being employed across the parties on the issue of citizenship and section 44.

Clarification in the cases already referred will come soon enough through the auspices of the court. Whether recommendations also emerge for avoiding this kind of quagmire in future is unclear.

Tony Windsor’s counsel will be challenging the assertions of both Barnaby Joyce and the Commonwealth that the deputy prime minister could not reasonably have been expected to know he held dual citizenship with New Zealand when his father had come to Australia many decades before.

“There needs to be a contradictor,” Windsor says. “That’s the main driver. Our people will be doing that by way of assisting the court as much as we can.”

Like the rest, Windsor will then await the verdict and decide what, if anything, he needs to do next.

“I have immense respect for the court,” he says. “And whatever they decide will be fine with me.”

For all their confidence, Barnaby Joyce and his prime minister may be slightly less sanguine.

This article was first published in the print edition of The Saturday Paper on September 9, 2017 as "Windsor seeking special count on Joyce".

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

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