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November 13th 2017 print

Peter O'Brien

Citizenship: The Yarralumla Option

A referendum to change or scrap Section 44 would fail, and the deal struck this morning by Malcolm Turnbull and Bill Shorten giving all MPs and senators until December 1 to establish their bona fides is a dubious solution, given past behaviour. Time for the Governor-General to step in?

cosgrove bettyRecently, some commentators have suggested it is time for the Governor-General to intervene in the Section 44 dual-citizenship crisis. They label it a ‘constitutional crisis’, and this is probably a fair description, which indeed suggests there probably is a role for the Governor-General. I will examine this shortly but first a few observations on the matter itself.

Many commentators express the view that Section 44′s requirements are a nonsense in this day and age.  Since most of the Section 44 ‘victims’ are dual nationals of British Commonwealth members such as Britain, New Zealand and Canada, they say, ‘What’s the problem?’  They didn’t know they were dual citizens and their loyalty is not in doubt.  This argument has some merit when you consider that the two putative dual citizens from non-Commonwealth countries, Canavan and Xenophon, were both cleared by the High Court.

But I wonder in what way have circumstances changed since 1901, when the drafters of the Constitution clearly saw a need for this provision?  The world has grown more fragmented, not less, and we already see the problem of divided loyalties within various ethnic communities. It is not really about potentially traitorous MPs working secretly for a foreign power — as Sam Dastyari’s cheerful pursuit and acceptance of Chinese largesse demonstrates, one doesn’t need to hold the passport of a foreign power in order to be its bought-and-paid-for instrument. The key is recognise that Section 44′s demands are not onerous if one is genuinely intent on serving the nation in its parliament.

So the argument as to the status of the current crop of parliamentary cuckoos really goes to the decision of the High Court, rather than the intent of Section 44 itself. In a recent letter to The Australian, contributor to Quadrant Geoffrey Luck argued ‘the reasonable person’ test should apply. “Is it unreasonable to expect potential MPs to take every step to acquaint themselves with their own circumstances,” Geoffrey writes,  “… and formally divest themselves of any dual citizenship, knowing as they do that this is a requirement of the Constitution?” I would think not. But be that as it may, the High Court has rendered its unequivocal, black-letter decision – and that is what we must work to.

A referendum to change the Constitution would never fly, it being reasonable to anticipate an amendment that removed the ban on divided loyalties would have to include various exceptions, foreseen and unforeseen. What a nightmare that would be! Also, count on voters to be aware that while they are obliged to understand and observe the letter of the law, from knowing when vehicle registrations expire to filing their tax returns, the political class would be asking for what amounts to a dispensation from the exercise of that same due diligence. Why should the political class expect to be indulged, voters would ask?

Which leads me back to the present situation.  If we do have a ‘constitutional crisis’ on our hands, it manifests itself in a number of ways, just three of which are (a)  reputational damage to our parliament, (b) politicians receiving handsome salaries to which they are not entitled, and (c) legislation that is potentially unconstitutional. Turnbull and Shorten have given every indication that, for different reasons, they wish to drag this out as long as they can. To my mind that procrastination is a case for the Governor-General to intervene.

Paul Kelly argues in the Weekend Australian that this is a political crisis, not a constitutional one, therefore the Governor-General does not have a role.  Putting aside the fact that Kelly’s credibility on the topic of crises involving governors general is problematic at best – he once claimed Sir John Kerr acted on a motion of the Senate to dismiss Gough Whitlam – I would contend that if a political crisis involves a continuing breach of the Constitution then Vice-Regal authority does have a role to play. So, how might the Governor-General assist in resolving this fiasco?

Understandably, any Governor-General alive in 1975 would be most reluctant to intervene and, as a matter of principle, Vice-Regal intervention should be a last resort in any case. Acting on the advice of the government of the day is the rule, but it is not hard and fast. And there is a way for the Governor-General to intervene without acting contrary to such advice. Were Peter Cosgrove to satisfy himself that the damage parliament is inflicting on our body politic was such that his intervention was justified, his first step would be to represent, privately, to the Prime Minister that he must order  all questionable Liberal MPs to come clean and, perhaps, offer to broker a deal in which Shorten would do the same.

If that gambit failed, Cosgrove could promise to withhold assent on any legislation that came before him until he was convinced it was properly and constitutionally enacted. In doing this he would not have to resort to invoking the reserve powers – he would be exercising an authority that is explicitly given to him by Section 58 of the Constitution.   Of course, it is the High Court’s role to determine the constitutionality or otherwise of legislation that is referred to it.  It is not the role of the Governor-General to second guess the Justices.  But in this case the potential unconstitutionality of any legislation derives not from its content but from its provenance. And there is sufficient evidence in the public domain, including the High Court’s recent decision, to inform the Governor-General that there is reasonable doubt about any legislation that comes before him from this Parliament, peppered as it is with members of dubious background.

The Turnbull-Shorten deal struck this morning, which gives all MPs and senators until December 1 to declare and provide evidence they are not dual citizens, might make this debacle go away, but galloping optimism would seem to be unwarranted in view of conduct and events so far.

So, would it be proper for the Governor-General to make his position public?  It’s a big call, but I think so.  The Governor-General has both explicit and reserve powers which make him a player, whether the Left likes it or not, and it is his duty to exercise those powers when circumstances demand. And going public from the start would protect him from the opprobrium that so unfairly blighted Sir John Kerr’s post-Dismissal life.  Cosgrove could never be accused of running a secret agenda.

I’m not saying the Governor-General must intervene.  But his involvement would be one way, probably the least damaging, in which he could.