Australia: Coalition warned it has ‘uphill battle’ in high court over citizenship and postal vote | The Guardian

As noted, only reasonable solution in an immigration-based country is to repeal section 44 and allow dual citizenship:

The government faces an “uphill battle” in major high court cases dealing with the same-sex marriage postal survey and the eligibility of seven parliamentarians on the current reading of the law, George Williams has warned.

In a speech to the National Press Club on Wednesday, the constitutional law expert and University of NSW professor accused the government of “a surprising constitutional adventurism” in testing the limits of its power and relying on a “creative, quite liberal and generous reading of those powers” by the court.

In October the high court will hear the cases challenging the eligibility of the deputy prime minister, Barnaby Joyce, the Nationals senator Matt Canavan, the resigned Greens senators Scott Ludlam and Larissa Waters, and the One Nation senator Malcolm Roberts. Nick Xenophon and Fiona Nash will also be referred.

Williams said that “on the current law it is difficult to see … that any of the seven parliamentarians who will face the high court are likely to survive that challenge”.

“It is hard to see any of them have taken the reasonable steps that the high court requires to divest themselves of foreign citizenship.”

Williams suggested Labor’s Katy Gallagher could also be in difficulty, depending on the high court ruling, and likened citizenship by descent to a “Pandora’s box” that could claim up to “20 or more parliamentarians”.

Section 44 of the constitution disqualifies anyone who “is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power” from sitting in parliament.

The Turnbull government insists it has strong legal advice from the solicitor general that the better view of the law is that some element of intention or acquiescence to foreign citizenship is required.

Williams warned that view was based on William Dean’s dissent in the case of Sykes v Cleary and it was “exceedingly rare” for a later court to adopt a dissenting view.

Another possible reading – to exclude only those members who have foreign citizenship by birth – had no support in the constitution, he said.

Williams said Joyce’s and the Greens’ eligibility problems “speak less of a constitutional problem … and more of complacency and poor vetting” by political parties. He cited a simple check he had performed online to confirm a person in Joyce’s situation was a New Zealand citizen by descent.

“In this case it is hard to see why the high court would fashion an exemption when candidates have been warned of this problem and when the information is very easy to obtain through a simple check on the internet.”

Williams described Malcolm Turnbull’s confidence that the high court will find Joyce eligible as “misplaced”.

Williams said section 44 was out of date, arguing it was “hardly consistent with our sovereignty, our stability as a democracy” to allow eligibility for parliament to be determined by other countries’ laws.

Source: Coalition warned it has ‘uphill battle’ in high court over citizenship and postal vote | Australia news | The Guardian

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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