Malcolm Turnbull and citizenship
The five house of representatives crossbenchers co-hosted Christmas drinks on Tuesday night, with a big multi-partisan crowd spilling into the corridor outside.
It’s a mark of their pivotal position that their A-list invitees were conspicuously in attendance this year. Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten arrived at the same time, within an hour of the latest citizenship disclosures being published.
After exchanging pleasantries with Victorian independent Cathy McGowan, Turnbull and Shorten quickly retreated to her office’s kitchenette and spent half-an-hour deep in private conversation, ignoring the surrounding festivities and the many sets of wide eyes noting the unusual tete-a-tete.
When they parted with a handshake, wishing each other a happy Christmas, it looked as though this meeting on neutral turf might have achieved some kind of deal.
But they had only agreed to keep disagreeing. Shorten is believed to have said he was confident his own MPs whose citizenship status was being questioned would be fine, but that to confirm it – and the status of government MPs in the same situation – he was prepared to support a joint referral to the High Court.
Turnbull is understood to have said he was equally confident about his MPs and no joint referral would be forthcoming.
Within 24 hours they were at stalemate on the house of representatives floor, in a game of one-upmanship and political hardball played against the clock, involving those crossbenchers and the return of the Coalition’s conquering hero, newly reinstated Nationals leader Barnaby Joyce.
At lunchtime on Wednesday, as Parliament House’s courtyards filled with people in Santa hats donating to charity and gripping sausage sandwiches and barbecued prawns, Turnbull called a meeting with the crossbenchers.
As they sat down to discuss citizenship, Shorten was outside in one of the few courtyards that had not been claimed by festivities, telling the media what he had put to Turnbull in private.
“I say to Mr Turnbull today: this is not about you or me or Liberal or Labor,” Shorten said.
“It is now about the government and the parliament of Australia. It is time to stop hiding. It is time to stop the mass cover-up. We believe that all MPs should demonstrate: are they eligible under the constitution, and what reasonable steps have they taken to renounce any foreign citizenship?”
With a deference for the senate rarely shown by members of the lower house, Shorten said it was leading by example with voluntary referrals.
“We haven’t yet got to that point in the house of representatives and my discussions with the government have been deeply unsatisfactory on this issue – deeply unsatisfactory,” he said.
“In the house of representatives the government is making it clear that they intend to refer their political enemies … to the High Court, but not apply the same standards to themselves. This is a very poor development in Australian democracy. We are happy to disclose, we are happy to be honest, we’re happy to put up all of our facts on the table. But any fair-minded observation of Coalition disclosures raises more questions than it provides answers.”
Shorten said he was happy to consider joint referrals but if the government was only interested in point-scoring, “well, then that will be a fight and an argument”.
Soon enough, it was clear there would be both fighting and argument. As he returned to his office, the crossbenchers arrived at his door, fresh from their meeting with the prime minister.
Turnbull had told them he would not be referring any more of his own MPs to the High Court. The independents were not happy.
The writs for the New England byelection were being returned in record time and Barnaby Joyce was to be sworn in to parliament before question time, giving the government numbers enough to block any attempt to force its hand.
Turnbull’s majority already under threat, he could not afford for any more of his colleagues to be forced to dangerous byelections.
The independents told Shorten they would support a Labor motion to refer all of those in question to the court, including one from their own ranks, the Nick Xenophon Team’s Sharkie.
Sharkie has advice that she took all reasonable steps to renounce British citizenship and does not believe she needs to be referred but was prepared to ask the court to confirm this, provided those others with uncertain status did the same.
Labor’s manager of opposition business, Tony Burke, moved swiftly.
While the barbecues were still in full swing and before Joyce could be sworn in, he went into the chamber and used the regular period for members’ 90-second statements to announce he would be circulating a resolution – with the independents’ support – that nine MPs be referred to the High Court.
They were Labor MPs David Feeney from Victoria, Tasmanian Justine Keay, West Australian Josh Wilson and Queenslander Susan Lamb, Liberals Julia Banks from Victoria, Nola Marino from WA and Alex Hawke and Jason Falinski from New South Wales, and the Adelaide-based Sharkie, who asked to be included.
In fact, Labor wanted to add three more: ministers Josh Frydenberg, Arthur Sinodinos and Michael McCormack, all of whose backgrounds raised questions about possible latent entitlement to foreign citizenship.
Greek-Australian Sinodinos is battling illness, however, and Labor’s senate leader, Penny Wong, told parliament that out of respect for his medical circumstances any move to refer him would be deferred.
In McCormack’s case, his maternal grandfather was born in Greece and Labor considers his defence stronger than some others.
But Frydenberg’s case had split the opposition. Of Hungarian Jewish heritage, Frydenberg’s mother had come to Australia as a stateless person escaping the Nazis. But in an apparent act of contrition many decades later, Hungary had changed its law to restore citizenship to those from whom it was stripped during World War II, exposing Frydenberg to the possibility of citizenship by descent.
While some on Labor’s side believed Frydenberg should have had his situation clarified, including shadow-attorney general and fellow Jewish Victorian Mark Dreyfus, others strongly disagreed.
The member for Melbourne Ports Michael Danby, also a Jewish Victorian, and NSW MP Ed Husic, whose Bosnian Muslim background makes him acutely aware of the impact of war, both spoke out against referring Frydenberg.
He was included in the three left alone and Labor reduced its list to nine.
But it did not have the numbers to bring on the resolution before Joyce was sworn back in at 2pm, ahead of question time. Afterwards, Burke put the resolution to the house.
Prime Minister Turnbull rejected his argument. “This is nothing more than an attempt to achieve some sort of tit for tat,” he said. “Because Labor does not want its members to be referred to the High Court, it wants to take some government members as well, and they’ve gone to the crossbench and said, ‘It’s only fair that some government members be referred.’ The reality is that our members that were dual citizens stood up and left … This is a serious issue. If Labor wants to deal with it seriously, and if the house wants to deal with it seriously, then we should deal with each case one at a time. ”
Greens MP Adam Bandt urged the house to refer an agreed list.
“We will not support picking off people one by one,” he said. “Because that would mean … that no government member, no matter how serious the question, could ever get referred.”
He asked: “What would the public think is a fair thing to do?”
Not usually known for rhetorical succinctness, Katter’s Australian Party MP Bob Katter neatly summed up the apparent prevailing national sentiment.
“I just want this to stop,” he told the parliament. “Every Australian wants this to stop.”
Sharkie pleaded with the parties to sort it out.
“This cannot be a place for a protection racket of the highest order, and that is what the Australian community is seeing today,” she said. “And I beg both sides: work together, let’s get our names together, let’s go to the High Court together. For we will all hang individually if we do not hang together.”
The vote came out dead even – 73 apiece – and the speaker, Liberal MP Tony Smith, followed precedent and voted “No” on the basis that such a motion should only succeed if there were a clear majority on the floor. Labor affirmed his decision was correct.
In the end, only those who had agreed to being referred were: Labor’s Katy Gallagher from the ACT in the senate and in the house Labor’s David Feeney.
Feeney had renounced his Irish citizenship and says he did the same with Britain but can’t find the documentation and neither can the British government.
Gallagher is arguing she took all reasonable steps to renounce her British citizenship before the close of nominations last year, after being advised previously she was not a British citizen. She waited weeks for the British Home Office to confirm the renunciation, which came after the deadline.
Gallagher’s case will now be used as a test case for those others claiming a similar defence, including Labor’s Keay, Lamb and Wilson. Her case will not be resolved until the new year.
Late this week, Turnbull and senior colleagues were still trying to persuade one of the crossbenchers to agree to refer the other three Labor MPs.
Feeney’s referral is bad news for Labor, and not only because of its longstanding claim to having watertight pre-election vetting procedures.
Feeney’s seat of Batman almost fell to the Greens at last year’s election and will be at serious risk of doing so this time.
That would not help Turnbull hold onto government, but it would not help Labor’s quest to win office either.
Sharkie’s seat of Mayo has historically been blue-ribbon Liberal. If she were referred to the High Court, found to have been ineligible and forced to a byelection, the Liberals could theoretically win it back, notwithstanding that incumbency tends to be worth a few percentage points. Winning Mayo would make the government’s position more secure and arguably Turnbull’s, too.
The fate of the government and its leader is what this citizenship issue is now all about.
In the event of a Liberal win in the Bennelong byelection next Saturday, Barnaby Joyce even opened up the possibility of recalling parliament to use what would then be the government’s restored majority numbers to refer more Labor MPs to the High Court.
“Well I reckon that’s always an option,” Joyce told Radio National on Wednesday. “If you’re going to play this game where people are going to keep voting and they’re ineligible to vote, then you’ve gotta deal with it whichever way you can.”
He said he “would always keep that option up my sleeve”.
But while a Liberal victory in Bennelong is still likely, it is by no means certain and the government is nervous.
For all of the baggage of her past associations with former NSW Labor powerbrokers now in jail, Labor candidate and former premier Kristina Keneally is posing a genuine threat to Liberal incumbent and former tennis champion John Alexander.
On top of that, a few issues in Bennelong are making the voters unhappy with the government, including problems with the national broadband network, prompting Labor to devote repeated questions to the issue in parliament this week.
The government continued to hammer Labor’s controversial associations, especially the one between NSW senator Sam Dastyari and Chinese businessman Huang Xiangmo, in whom Australia’s spy agencies allegedly have an interest.
It is understood the government’s public attacks are playing well with some of the sizeable Chinese-Australian constituency in Bennelong, but others are taking exception to Liberal MPs nicknaming Dastyari “Szechuan Sam”, interpreting it as a mocking of their culture.
Turnbull has a lot riding on the Bennelong result. At the end of a more-down-than-up year, he approaches Christmas in a stronger position than many expected. A solid win in Bennelong could invoke comparisons with the infamous Aston byelection in Victoria in 2001.
Those comparisons would be imperfect because in Aston the incumbent died, while in Bennelong the incumbent is running again, a rare situation in a byelection, which is usually only prompted by a death or a retirement. But the potential for a much-needed psychological boost is where the similarity lies.
In Aston, the Liberals defied Labor’s strong lead in the national polls and retained the Liberal-held seat, albeit with a reduced majority. The byelection became a well-timed circuit breaker for then prime minister John Howard, who declared his Coalition “back in the game” and went on to win the federal election four months later.
While that victory was in no small part due to linking immigration and security issues with the September 11 terrorist attacks that occurred just before the poll, the morale boost from the Aston win carried the Coalition forward.
In a neat parallel, Howard was on the hustings with John Alexander in his old seat of Bennelong this week, a decade after he was bundled out of it and his government out of office.
Before Turnbull, Howard was the last Australian prime minister not to have been ousted by his colleagues. In 2007, some of Howard’s senior colleagues went to him and urged him to resign in favour of treasurer Peter Costello but he refused, staring them down and leading his party to a crushing defeat.
Last week, Turnbull also faced a public resignation call from within the wider Coalition and also rejected it.
The round of Coalition criticism just as he entered the traditional “killing season” for leaders – parliament’s final week – seemed like a potentially dangerous clarion call. But it ended up working for him rather than against.
When NSW state Nationals leader John Barilaro launched a both-barrels attack on Turnbull while on air with conservative broadcaster Alan Jones, senior federal Liberals and Nationals rained condemnation down upon him.
Barilaro, who called for Turnbull to resign “as a Christmas present” to Australians, said he was simply reflecting the sentiments expressed to him as he travelled around NSW.
But the statement on the eve of Joyce’s New England byelection only prompted senior federal waverers to close ranks around Turnbull – including Joyce, who uninvited Barilaro to his election-night party.
Joyce has become one of the prime minister’s strongest defenders. Tradition demands that two MPs accompany a newly elected member on his or her first walk into the chamber and when Joyce was readmitted for his swearing in on Wednesday, Turnbull was one of the two.
A second renegade National, Queensland federal MP George Christensen, also attracted a blast for briefing conservative commentators on condition of anonymity that he was planning to quit the Coalition, threatening Turnbull’s majority.
He was forced to identify himself and declare shamefacedly that he had changed his mind.
With same-sex marriage now through parliament and set to become law, Turnbull ends the parliamentary year having evaded the immediate threats to his leadership.
A combination of timing and tactics, rather than negotiation, have bought him at least a few months to try to turn the still-terrible national polls around and sow further doubt about Bill Shorten as an alternative.
It doesn’t hurt that those polls also suggest 80 per cent of voters don’t want another prime minister removed other than by them.
There is a question as to whether MPs’ constitutional eligibility to serve in the parliament should be used as a self-preservation tool or a matter for political negotiation at all.
The Australian people may well take a dim view of that, too.
This article was first published in the print edition of The Saturday Paper on Dec 9, 2017 as "Slate of origin queries". Subscribe here.