Turnbull’s citizenship crisis
On the day the High Court’s citizenship judgement shattered Prime Minister Malcolm Turnbull’s hopes of ending the year on a high, his predecessor Tony Abbott was at a rugby lunch in Sydney.
Abbott had been invited to make a toast at the charity fundraiser, run by the Cauliflower Club, which supports injured players and their families.
His contribution came shortly before host Peter FitzSimons told the gathering the High Court had just thrown Deputy Prime Minister Barnaby Joyce and four senators out of parliament.
In the presence of the sport’s luminaries, the former prime minister and one-time university fourth-grade forward outlined his own modest club rugby career and reflected on the other road he’d travelled.
Abbott joked about having been benched – or, rather, backbenched. He continued with a metaphor his audience could well understand: the rivalry between forwards and backs.
“I went to play a different game,” he said, concluding a “toast to the backs” that he was playing for laughs.
“I rose through the ranks and eventually became the team captain. Two years ago I was put on the bench, on the sidelines. And I am so keen to get back on the field, that I would even play as a back.”
It was a punchline crafted for the occasion and it brought the house down.
But as his struggling successor seeks a circuit-breaker through an end-of-year ministerial reshuffle, Abbott is not going to get his wish.
A chorus of conservatives is calling for the prime minister to be replaced, but Abbott is positioning as the virtuous voice advocating the opposite. Turnbull doesn’t buy it for a second.
“We don’t want a revolving-door prime ministership,” Abbott insisted on 2GB this week.
“I’ve been saying up hill and down dale, publicly and privately, that the era of the political assassin must end. We’ve had too many political assassinations. We need a more honourable polity.”
Those close to the current prime minister roll their eyes at the mention of honour. But the trouble for Turnbull is that he presides over a parliament in which Australians see honour less and less.
The swelling citizenship crisis has only made that worse. Even Turnbull has now conceded that’s what it is.
When it was suggested on the Nine Network’s Today show that he was “under the pump”, the prime minister responded: “I’m a good man in a crisis.”
Accused of colluding to mutually protect lower house members who might yet have a constitutional problem with dual citizenship, Turnbull and Opposition Leader Bill Shorten approached week’s end in a blazing standoff over how to address it.
Turnbull wanted to give MPs three weeks to present dates and places of birth for themselves and their parents and declare renunciation details of any foreign citizenship.
Shorten wanted grandparents’ details presented, too, plus documentary proof of renunciation and a five-day deadline.
Turnbull accused Shorten of playing opportunist politics, but was preparing to modify his proposal.
Each now faces the real prospect of colleagues being referred to the High Court as possibly dual citizens in breach of section 44 of the constitution.
Far more than the current byelection in Barnaby Joyce’s seat of New England, that has dramatic implications for Turnbull’s grip on government.
Those facing questions aren’t all on the Coalition’s side.
Tasmanian Labor MP Justine Keay has conceded that while she wrote to the British government seeking to renounce her British citizenship before the nomination deadline ahead of last year’s federal election, the renunciation was not confirmed until July 11 – after election day.
Queensland Labor MP Susan Lamb did the same and has declined to make public the date on which the British government confirmed renunciation. It is believed to be similarly after the nomination deadline.
Privately, the government believes the status of at least two other opposition MPs – West Australians Josh Wilson and Madeleine King – is also in question.
Unlike others whose status remains in question, Keay and Lamb are relying on the defence that they took “reasonable steps” to renounce, though some senior Labor figures are pessimistic they can avoid referral.
In its recent judgement, the High Court had no truck with ignorance as a defence.
Paragraph 72 of the judgement leaves the Coalition confident Keay and Lamb are in trouble.
It declares: “A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s44 (i)”.
It makes two exceptions. The first is where a foreign law conflicts with the Australian constitution’s imperative that no foreign law should permanently prevent an Australian from serving in parliament. In other words, foreign countries can’t force their citizenship upon Australians and stop them running for office.
The second is where a person can demonstrate he or she has taken “all steps that are reasonably required by the foreign law” to renounce the foreign citizenship and “within his or her power”.
While Keay and Lamb are relying on that second provision, there may be argument over what constitutes “all reasonable steps” and whether lodging requests so close to the nomination deadline would qualify.
In particular, Lamb’s seat of Longman in Queensland, won from the Liberals in 2016, could be at risk for Labor in a byelection if preferences from One Nation voters did not flow Labor’s way as substantially as they did last time.
Meanwhile, the sole Nick Xenophon Team MP, Rebekha Sharkie, revealed her renunciation of British citizenship was confirmed after her nomination for the 2016 election. She, too, will hope this will be regarded as having taken “reasonable steps”.
Two Liberal MPs with Greek parentage, Victorian backbencher Julia Banks and New South Wales frontbencher Alex Hawke, have also had queries raised about Greek citizenship by descent. Both insist they are solely Australian but have not yet produced evidence.
The Liberal MP for John Howard’s old seat of Bennelong, former tennis star John Alexander, has asked the British government about his status, based on his late father having been born in Britain.
Alexander says he believes his father, who arrived in Australia in 1911, renounced his British citizenship between January 26, 1949, when Australian citizenship first came into existence, and 1951, when John was born.
Environment and Energy Minister Josh Frydenberg is the son of a Budapest-born mother, stripped of Hungarian citizenship because she was Jewish, whose family fled the Holocaust for Australia and whose immigration papers on arrival were marked “stateless”.
But a change to Hungarian law in 2011 – the year after Frydenberg entered parliament – has raised queries about whether Hungarian citizenship may have been imposed on his mother and therefore on him by descent without their knowledge or agreement.
Frydenberg’s case, should it be referred to the court, may well qualify as an exception under paragraph 72. Only the court can determine that. Frydenberg is seeking legal advice.
Turnbull has attacked as “un-Australian” those who raise questions about Frydenberg’s status.
“You’ve got people in the media saying Josh Frydenberg is a citizen of the country that would have gassed his mother,” Turnbull told the Nine Network.
Senior Labor figures have expressed similar sentiment.
But although unwittingly being made a citizen in such circumstances may seem horrifying, emotion is not enough to render it untrue.
The law does not take account of feelings or belief, as the High Court demonstrated in what Attorney-General George Brandis called its “brutal” judgement.
Bill Shorten continues to insist that Labor’s pre-nomination checking processes have been good enough to prevent unwitting dual citizens slipping through. He’s clinging to the high moral ground.
“This is a citizenship crisis not of Labor’s making,” he said on Thursday.
“But it is most serious… not just because the government’s in trouble, but because the Australian people are losing confidence in the government and the parliament.”
The citizenship dramas have further complicated Turnbull’s plans to reshuffle his ministry when parliament rises for the year.
Special Minister of State Scott Ryan is now a frontrunner to swap ministry for senate presidency in the wake of incumbent Stephen Parry’s abrupt departure last week on dual citizenship grounds.
Should Ryan prevail when Liberal senators make their choice as the senate resumes on Monday, there will be yet another vacancy in the ministry. Turnbull is expected to park that portfolio with another minister temporarily until he can unveil a new line-up.
Parry’s departure leaves Tasmania unrepresented among either ministers or parliamentary office-bearers.
The Saturday Paper understands his Tasmanian colleague, senator David Bushby, is likely to be elevated into the outer ministry to resolve that geographical imbalance.
Usually a strenuous Abbott supporter, Tasmanian conservative Eric Abetz has changed his tune about the current prime minister in recent days, leaving some speculating about his motives.
Following Parry’s departure and Turnbull’s announcement about a citizenship check, Abetz suddenly dialled up his praise.
“The leadership of the prime minister in this situation, I think, is to be applauded because it will now enable the whole situation to be resolved,” Abetz told Sky News on Tuesday.
Turnbull supporters noted the shift. But Abetz will not be promoted either.
The prime minister has to wait for the voters’ verdict in New England before he can unveil the new ministry, which he hopes will represent a fresh start heading into 2018.
Although they are expected to return Joyce to parliament, that won’t be confirmed until the final parliamentary week for the year – the week that’s known as “the killing season” for vulnerable leaders.
Turnbull joined the popular local candidate at the Melbourne Cup day races in Tamworth on Tuesday, giving rise to an interesting question: Was Turnbull campaigning for Joyce, or the other way around?
Despite the howls from Turnbull’s Liberal detractors, there is no alternative candidate for leader at present.
Abbott’s support within the parliamentary party remains in single digits. Immigration Minister Peter Dutton’s recognition among voters is low. Foreign Minister Julie Bishop rates best but she doesn’t have enough support from colleagues to claim the job permanently.
That leaves Turnbull firmly in place, seeking to navigate through to Christmas with the added complication of potential obstruction and increasing demands from conservatives, should next week’s result in the same-sex marriage survey come back “yes”.
Between now and then, Turnbull faces the likelihood of a clutch of MPs and senators being referred to the High Court for another round of adjudication on citizenship.
That could lead to more dangerous byelections in February or March, seriously threatening his one-seat majority.
On his trip to Israel last week, Turnbull was asked if he ever thought about walking away from the difficult top job. “I’ve never had more fun in my life,” he declared.
A week on, that sentiment would likely get a bigger laugh than Abbott’s toast.
This article was first published in the print edition of The Saturday Paper on Nov 11, 2017 as "It’s all turned to citizenship". Subscribe here.