What next? A change of government?

The citizenship saga/issue/crisis continues. Almost every day one or two MP’s or Senators are outed in the media for having a parent born in some other country. Constitutional expert George William’s prediction at the end of August of there being 20 members of our Parliament that would be caught with dual citizenship might be accurate. Election analyst Antony Green also stated this week that he thought the list was 20. But it could be even more. 51% of Australians were either born overseas or have one parent born overseas. We would expect the Parliament to be reasonably representative of the wider Australian community. With 226 members of Parliament 20 dual citizens is a far lower percentage than the rest of the community.

The High Court decision

One of the roles of the High Court is to interpret and apply our Constitution. On 27 October the High Court found that five of the seven Members of Parliament that had been referred to the Court over dual citizenship were incapable of being chosen at the 2016 election. To highlight the disqualifying factors the judgment gave a summary as to the proper construction of section 44i (you can find this at paragraph 72):

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 s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.

It does not matter whether the person did not know that they were a dual citizen. In paragraph 60 the High Court judgement stated:

It is necessary to bear in mind that the reference by a house of Parliament of a question of disqualification can arise only where the facts which establish the disqualification have been brought forward in Parliament. In the nature of things, those facts must always have been knowable. A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the Parliament.

There have been some people in politics and the media that have criticised the High Court over their decision on the citizenship 7. The Government argued that the High Court should interpret Section 44i of the Constitution differently than they had in previous decisions. But they lost that argument and the seven justices unanimously ruled. Many are saying that lashing out at the High Court, the independent umpire, the custodians of our Constitution, for Government problems undermines the Constitution as the rule book for our system of Government. The High Court is the third participant in the separation of powers and provides an essential check on the Parliament and Executive.

Before Australian citizenship was created in 1948, we were British subjects, and so was everyone else that was living in the British colonies (some were former British colonies by this stage). So British subjects from Australia, New Zealand, Canada, the UK and other commonwealth colonies or nations could nominate for election here. But they were not what we now call dual citizens. People who were US citizens or the subjects or citizens of most European countries were not able to be elected to our Parliament, even then. Once Australian citizenship was established through legislation by our Parliament in 1948 (the other former British colonies established their own around the same time) Commonwealth nations became foreign to us and people from countries like New Zealand and Canada could not sit in our Parliament. The UK still had links to Australia until 1986. At this time all links to the Australian system of government were severed by the implementation of the Australia Act. The final link, appeals to the Privy Council in the Australian States were abolished at this time. 

In 1992 a case was brought to the High Court to challenge the eligibility of a candidate, Phil Cleary who had been elected to the House of Representatives because his job as a school teacher might have been classified as an office of profit under the Crown (section 44iv). It was determined being a school teacher was in fact an office of profit under the Crown and he was incapable of being chosen at the election. The High Court then had to look at two of the other candidates in that election, Labor candidate Bill Kardamitsis or the Liberal candidate John Delacretaz who were dual citizens. Both had been naturalised in Australia, but had retained other citizenships. One in Greece and the other in Switzerland. Both thought that their foreign citizenships were automatically renounced when they became Australian citizens. This was found not to be correct, and that they did not take ‘all reasonable steps’ that were required by the laws of the foreign country to renounce their foreign citizenships. As they were citizens of a foreign power, they were found by the Court to be incapable of being chosen to sit in the House of Representatives.

Then in 1999 another case was brought to the High Court. Senator Heather Hill, also a naturalised Australian, who had been elected was found to be incapable of being chosen because she had not taken all reasonable steps to renounce her British citizenship. It was during this case that the High Court determined that the British citizenship was a disqualifying factor according to section 44i because the Australia Act 1986 had severed governmental ties to the UK.

This process of Australia severing its ties to the wider British Commonwealth and then from the UK, is a part of the building of nationhood. Many say that this process means that we are now an independent country, while other say that as long as we still have the Queen at the apex of our system there is still one more step to take. Both opinions are valid. But legally and constitutionally, the Queen cannot do very much in Australia. The only role left for her is to appoint the Governor-General and she must do this on the advice of the Prime Minister.

This means that the current problems in the Australia Parliament are left for the Government and the Governor-General to solve. Now, the Governor-General also can’t do very much. In some very limited circumstance he can use what are known as his reserve powers. These are listed as such on the Governor-General’s website:

There are some powers which the Governor-General may, in certain circumstances, exercise without – or contrary to – ministerial advice. These are known as the reserve powers. While the reserve powers are not codified as such, they are generally agreed to at least include:

1.The power to appoint a Prime Minister if an election has resulted in a ‘hung parliament’;

2.The power to dismiss a Prime Minister where he or she has lost the confidence of the Parliament;

3.The power to dismiss a Prime Minister or Minister when he or she is acting unlawfully; and

4.The power to refuse to dissolve the House of Representatives despite a request from the Prime Minister.

In addition, the Governor-General has a supervisory role to see that the processes of the Federal Executive Council are conducted lawfully and regularly.

Some people are calling for the Governor-General to now step in to restore confidence in the Parliament to the people of Australia. But as you look at the list above you can see that the current situation does not fit neatly into one of the reserve powers that have been generally agreed to. There is not yet a hung parliament, the Prime Minister has not lost the confidence of the Parliament and as far as we know, the Prime Minister and other Ministers have acted lawfully. When it comes to the fourth power, we might not know if the Prime Minister has requested that the House of Representative be dissolved. But in any case, a new election, without having tested the Governments numbers on the floor of Parliament might justifiably be refused. 

Upcoming sittings

Let’s look at some of the scenarios that might eventuate in the Parliament. The Senate sits next week, where some more Senators might be referred to the High Court over dual citizenship concerns. Fiona Nash’s Senate replacement will also have her section 44iv eligibility heard by the Court next week. But because Government is not formed in the Senate, this is of no real consequence to Government. Of course, the people of Australia might be quite annoyed, but the running of Government goes on.

The House of Representatives next sits on 27 November. It is during this sitting fortnight that there could be consequences for the Government. We have what is called a Westminster Parliamentary System of Government. And this means that the party or groups of parties that make up a majority in the House of Representatives form Government. After the last election, a coalition agreement between the Liberal and National parties gave them 76 MPs out of a total of 150. This is a slim majority, but it means that they could form Government and Coalition Ministers make up the Executive Government as outlined in Chapter II of the Constitution.

The first thing that a Government does when they form Government in the House of Representatives is appoint a speaker. While technically the speaker can vote in the House if there is a tied vote (section 40 of the Constitution), the current speaker has previously stated that he guards his independence in the Parliament and will not do this, except for procedural motions. He has stated that when it comes to votes on legislation or confidence he wouldn’t use his casting vote to manufacture a majority that doesn’t exist on the floor of the chamber:

If in the final vote there is not a majority, you don’t vote to give it one.

So 76 members, minus the speaker gives the Coalition 75 votes on the floor of Parliament. The Labor Opposition had 69 MP elected at the 2016 election, plus there are 5 others who are independent or from minor parties (often collectively referred to as the crossbench).

The High Court decision last month removed one member of the Coalition, Barnaby Joyce in the seat of New England. The byelection for this seat is due to be held on 2 December. There are four sitting days for the House of Representative before this election and depending on how long the count takes and when the writs are returned, there might be a few more days of sitting after this byelection with one MP missing.

This means that the Coalition will have 74 votes on the floor of the House. Labor, plus all five crossbenchers also make 74 votes. If all the crossbenchers side with the Opposition on any piece of legislation, it will be tied in the House and unless the speaker changes his mind about using his casting vote, the legislation will not pass.

But, there are further complications. The Member for Bennelong, John Alexander, might also be a UK citizen by descent. He’s currently checking his status with the British Home Office and if it is confirmed that he is a dual citizen, he will most likely have to resign immediately. The High Court made it clear that UK citizenship by descent makes a person incapable of being chosen or of sitting in the Parliament if the person has not taken all reasonable steps to renounce. In this situation the Coalition will only have 73 votes on the floor of the House. While Labor still has 69 and if all five crossbenchers side with them they would have a majority of 74.

Some of the crossbench gave guarantees for supply and confidence at the beginning of the 45th Parliament. Supply means that that have agreed that they will not vote against the Government on budget Bills. Confidence means they have agreed that they will not vote with the Opposition if a no-confidence motion is introduced in the House. They have not made agreements to support Government legislation. As such we may not see any controversial legislation presented during this period as losing a vote on the floor of the House can be viewed as a loss of control of business of the House. This is considered as a loss of confidence and something that a Prime Minister should resign over. If the Prime Minister were to lose the vote on his resolution to resolve the dual citizenship problem, that might also be considered as a loss of confidence.

The same-sex survey results are due to be announced next week. Some people might be worrying that if there is a Yes result that the Same-Sex Marriage Bill might be delayed, due to it being considered contentious by some. Previously it has been stated that this legislation could possibly be a Private Members Bill. Even if the Private Member is from the Coalition, it is not considered a Government Bill and if the vote is lost on the floor, it is may not be viewed as a loss of confidence. On the other hand, if Labor were able to find a way to introduce a Same-Sex Marriage Bill, and it passed the House of Representatives, this could be considered as a loss of confidence (there are some procedural steps that need to be taken to get a Bill introduced into the Parliament which might prevent Labor from being able to doing this).

So, what would happen if all the crossbenchers withdrew their confidence guarantees and voted with Labor in a vote of no-confidence in the Prime Minister, or the Government lost a vote on a Bill in the House?

This is when the Governor-General might have to step in. He would have to consider whether it is his duty to offer Government to the Labor party. The new Government would then have to test its confidence on the floor of the Parliament and as long as all those crossbenchers voted with Labor, they would then become the Executive Government.

But, this would not be a stable government. Once the Liberal speaker resigns and a Labor MP is appointed to the chair, the numbers reverse. The Coalition would have 74 and Labor and all of the crossbench would be 73. Even if the Labor speaker decided that they would use the casting vote that is available to them, it would not matter. 74/73 is not a tie and this vote cannot be used. Then shortly afterwards Barnaby Joyce might be back, giving the Coalition another vote on the floor.

There are a lot of moving parts in the current scenario and the end result would not produce a stable government. But if a several more MPs resigned over dual citizenship, the likelihood of this type of scenario occurring increases. Especially if the byelections result in Liberal MPs losing their seats to Labor (as some in the media have predicted could happen). It has been estimated that the Coalition would only have to lose two seats in byelections for Australia to see a change of Government without a general election as long as all of the crossbench supported Labor. Three seats being won by Labor in by-elections would be more stable as they’d only need four of the crossbench and four Coalition losses would mean Labor only need three of the crossbench. Of course, a majority of the crossbench might decide to stick to their guarantee on confidence and then Coalition Government would continue. At least two crossbenchers have recently stated that the people in their electorates do not want to go to a new election. So they might be weighing up their options on how to prevent an election.

We have had a change of Government without an election six times since federation. This happened three times in our second Parliament (1904, 1904 and 1905), when there were three major parties the Protectionists, the Anti-Socialists and Labour (they still had the U back then). The three-party fight continued into our third Parliament and government changed twice without an election (1908 and 1909). The last time the government changed without an election was in 1941. None of these changes of government were the result of a vote of no-confidence, but rather because of the defeat of other questions on the floor of the House. On two other occasions, in 1929 and 1931 a Prime Minister advised the Governor-General to dissolve the House of Representatives after a defeat on the floor.

Some people think that we’ll be going to an election soon. We’ll have to wait and see how many more dual citizens are found in the House of Representatives. 

If we do end up going to an early election, the High Court decision last month will not exclude Australians from nominating for election to the Parliament. It simply means that before you nominate you must investigate your background for foreign citizenship and then take all reasonable steps according to the law of the foreign country to renounce any extra citizenships that you have.

We can be assured that our Constitution will continue to safeguard our democracy throughout what happens next. 


Subscribe and stay up to date with CEFA's Constitutional Forum