This piece was first published inThe Guardianon Friday 25 August
THE HON MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
MEMBER FOR ISAACS
SECTION 44 WILL REMAIN. IT'S THE GOVERNMENT THAT GOES UP IN SMOKE
Of the many astonishing things that happened in parliament and the high court over the last few weeks, there is one that I find the most mind-boggling the willingness to label a part of the constitution as outdated, or irrelevant, because some MPs had not bothered to comply with it.
Seriously. The five parts of section 44, including the prohibition on dual citizenship, have been in our constitution since federation. The wording has never changed. It should not be a surprise to any Australian, let alone a cabinet minister, that it exists and that it is a requirement to comply with it.
Whether or not you think section 44(i) is unnecessary or doesnt reflect our multicultural society, the fact is it is in our constitution and it is the current law of the land, until it is changed.
Reforming section 44(i) is not a short-term option. It may not even be a long-term one. For a start, it would need a referendum. And there are already several important constitutional questions in the queue Indigenous recognition, the republic and four-year terms. So lets forget about section 44(i) going anywhere anytime soon.
Lawyers representing senator Matt Canavan in the high court on Thursday have basically mounted this argument that the application of section 44(i) to those who have gained dual citizenship by descent is ridiculous.
Indeed, theres a suggestion that the current citizenship omnishambles must show there is something wrong with section 44. Im not sure thats the case. If there is anything wrong here, its the failure of some MPs, even senior ones, and their parties in not expending the effort to ensure they were clear of section 44.
And on the current state of the law, the governments proposed way out of this mess seems far-fetched. The governments apparent firm belief that Barnaby Joyce and others are safe as validly elected MPs would require an activist ruling from the high court, radically re-interpreting the meaning of section 44(i) that has been set out in a chain of high court decisions.
The argument mounted by senator Canavans lawyer is effectively that citizenship by descent should not be an issue under section 44. As many as 50% of Australians would be caught by it, it is argued.
The proportion of Australians who may have inherited dual citizenship is neither here nor there the point is whether it somehow makes it difficult for them to become MPs. If they follow some basic processes, it shouldnt be.
If the court were to rule in favour of that argument, the ruling would have huge implications. It would create a double standard, where MPs or senators who inherited dual citizenship would be able to keep it, whereas those who obtain it by place of birth would be made to give it up.
Think about it if you inherited New Zealand citizenship, no problem you can remain a dual citizen. But if you were born in New Zealand, youre not allowed to keep it.
How does that possibly make sense?
When questioned, senator Brandis says he is relying on strong advice from the solicitor general to support his assertion that Barnaby Joyce and his colleagues are safe. Then we learn in reports on the weekend that this strong advice only goes as far as the solicitor general advising that it is more likely than not that Joyce will be able to remain in parliament. Any caveats to that advice we do not know because senator Brandis will not release it.
Turnbulls declaration that Joyce is safe and the high court will so hold is looking more arrogant by the day.
Of course, senator Brandis has form in misrepresenting advices from his solicitors general to suit his political ends. That was famously established in the case of former solicitor general Justin Gleeson, whose advice on (of all things) citizenship law was misrepresented by senator Brandis in 2015.
You can forgive me for not trusting senator Brandis on this one, when the government has so much to lose.
There are two elements in question in this entire imbroglio section 44, and the viability of the current government.
It is section 44 which will remain, while the government goes up in smoke.
This piece was first published in The Guardian on Friday 25 August