Shorten under pressure as citizens deadlock intensifies
Susan Lamb’s emotional speech cannot avert her day of reckoning
There is no sign of any early resolution to the dual citizenship crisis where the responsibility of parliament clashes with party interests — the only certainties are more dangerous byelections, more High Court decisions and more hypocrisy.
The parliament as an institution is failing in its obligations. That’s no surprise because it constitutes rival party interests. Its biggest failure is not over dual citizenship — it is the sabotage of the budget, denial of spending restraint, its entrenchment of a “living beyond our means” culture and its coming assault on jobs and wages by rejection of further modest company tax cuts.
In the opening week of parliament the transformation of the politics of dual citizenship was on vivid display. This is now a threat to Labor stability and Bill Shorten’s polling ascendancy over Malcolm Turnbull. It continues to expose Shorten’s false claims last year about Labor being a cleanskin on the issue.
The citizenship contest is a prolonged and deadly political combat. Shorten faces a risky March 17 by-election in the Melbourne seat of Batman, an almost certain future by-election in the marginal Labor seat of Longman in Queensland held by Susan Lamb and the possibility of even more by-elections.
In an effort to hold Batman against the Greens, Shorten has leapt to the left — a tactic with potential gains for the government. As his long-term rival, Anthony Albanese, slots into the picture as alternative leader, Shorten needs a victory in Batman to verify his claims as a vote-winner.
Much has changed since the final months of 2017 when Shorten’s lethal assault over citizenship threatened the survival of the Turnbull government as it confronted two ugly by-elections amid rising internal disruption. In the end better-than-expected wins by Barnaby Joyce in New England and John Alexander in Bennelong transformed Coalition morale. But Turnbull has not forgotten his near escape from political death.
Shorten’s political aggression from last year has now surrendered to a highly defensive posture. Labor wants a settlement. Indeed, it appeals for a deal with the government. Far from trying to terminate the PM, Shorten is desperate to avert more by-elections in Labor seats that might undermine his own leadership or, as a fallback, Labor wants to provoke Turnbull into an unpopular unilateral move against Lamb.
“I think Australians are rightly angry that we’re still arguing about citizenship,” Shorten said this week. “It’s as if the summer break never happened and we’re stuck in this endless loop. What we have said to the government is, let’s rule a line under this issue.”
This is high risk for Shorten. He refuses to refer Lamb to the High Court, yet on the facts she cannot avert a constitutional reckoning. Playing the emotional heartstrings on this issue — as Labor did this week — could backfire seriously.
Labor’s tactic is to exploit public impatience. Given its weaker position than the government, Labor’s ploy has become moral equivalence — let’s all refer any doubtful people to the High Court. By spreading the notion of a public pox on both sides, Labor poses as the party seeking a resolution beyond party interest.
This was the context for the dramatic and tearful speech this week from Lamb, defending herself over government arguments that she must either resign or be referred to the High Court — the aim being to secure a by-election in Longman where Labor’s 2016 election margin was only 0.8 per cent.
Lamb’s speech was the most emotional moment in the chamber since Julia Gillard’s memorable “misogyny” assault on Tony Abbott. It had a similar purpose — to divert from the real issue. The upshot was a mix of personal tragedy and rank political farce.
“One day when I was around six years old, my mum dropped me off at school and she never came to pick me up,” Lamb said. “I remember lots of tears, lots of confusion. I remember my dad trying to explain. My mother wasn’t at my seventh birthday or
any birthday after that. She wasn’t there for my school graduation, she wasn’t there for my youngest son’s graduation when he was 17 last year. In fact, they have never met.”
Lamb said that if her mother carried her own share of “pain and trauma” and “if it’s anything like mine” then she “wouldn’t wish that on anybody”. She said: “I carry hurt, I carry disappointment, it is fair to say I still carry a fair bit of anger.”
Her justification for the speech, Lamb said, was because telling people she had personal circumstances “wasn’t enough for the political attacks to back off”. She called upon her opponents to stop attacking her family life. On the pivotal question, Lamb said she had taken “all reasonable steps” to renounce her British citizenship and this included trying unsuccessfully to obtain her parents’ marriage certificate as requested by British authorities.
At the end, Lamb said: “I was validly elected to parliament and I am eligible to sit in this house.” Shorten offered her full support. Yet this is a claim dubious in the extreme and contradicted by the documents. To this stage Labor and Lamb refuse to concede the government position — that the circumstances of her case, singular to other MPs, mean she should either resign or be referred to the High Court.
In Lamb’s case human tragedy runs into constitutional reality and obligation. Shorten accused the government of an “unfair attack”. He praised Lamb as courageous under pressure, saying: “I don’t think anyone who’s fair dinkum couldn’t have been moved by what she said. I think she was very strong. She has taken all reasonable steps.”
He played the emotional card of the family defence: “What goes on in families is really a matter for families.” Sure, you may be sitting in the chamber in breach of the Constitution but let’s just respect the family.
Opposition legal affairs spokesman Mark Dreyfus, a warrior who invariably relies on legal argument, offered the humanity defence. Dreyfus told the ABC: “You’ve really got to ask what kind of people the Liberal government are that they are pursuing her and continuing with this in the face of that extraordinarily moving speech she gave yesterday. What kind of people are they? I think any Australians that saw Susan Lamb’s speech would see just how wrong it is for the government to continue this pursuit.”
Dreyfus, presumably with a straight face, accused the government of playing “party” games on the issue. None of this claptrap suffices. The reason Labor plays emotional politics on this issue is because its factual case is so weak.
On her citizenship declaration form, Lamb told the parliament she was not a dual citizen. Yet her own legal advice attached to her declaration form says: “On commencement of the British Nationality Act 1981 on 1 January 1983, as a Citizen of the United Kingdom and Colonies with the right of abode in the United Kingdom, she was reclassified as a British citizen.”
Nowhere does Lamb show any confirmation she has renounced British citizenship. On the contrary, despite the information she provided to British authorities in an effort to renounce citizenship, the UK Home Office sent her a letter dated August 10, 2016 stating: “We cannot be satisfied from the documents available that you hold British citizenship. The application therefore has been refused.”
That is, the Home Office refused her application to renounce British citizenship. The documents lead to the conclusion Lamb is still a British citizen even though she still sits in the parliament. This is the point publicly made by Turnbull in his critique. Claims about attacks on her family are irrelevant. There is no constitutional exemption on the grounds of a tough life and, if you look, several MPs have had tough lives. Only one issue counts: is Lamb still a dual citizen? The evidence is substantial that this is the case.
Beyond this, Lamb and Labor insist she has made every “reasonable” effort to renounce her British citizenship. Lamb’s declaration relies upon a legal opinion from Adrian Berry of the English Bar to the effect that Lamb had “fulfilled the legislative requirements imposed upon her in order to renounce British citizenship”.
It is apparent from the documents that Lamb’s inability to provide her parents’ marriage certificate to British authorities — the issue in her speech — was central to the reason the Home Office was unable to recognise her British citizenship as a prelude to giving effect to her application for renunciation.
The evidence suggests Lamb’s situation is different to that of other MPs in the firing line. It appears Labor MPs Katy Gallagher, Justine Keay and Josh Wilson and the Xenophon Team’s Rebekha Sharkie successfully renounced their British citizenship but their problem is timing — this was finalised only after the close of nominations for the election — with the High Court saying the close of nominations is the critical date by which foreign citizenship must be renounced.
Labor repeatedly asserts that making “reasonable” efforts are enough, that this does the job and means an MP satisfies the section 44 “dual citizenship” provision. Labor builds its house on this foundation. But there are two relevant points here.
First, it is doubtful whether Lamb made reasonable efforts. The Queensland Births, Deaths and Marriages Registration Act 2003 allows people to apply for information including certificates and provides a broad discretion for access. It would be extremely unlikely any such application from Lamb for a marriage certificate would be denied. Yet Lamb offers no conclusive view on whether she approached Queensland authorities, an obvious step.
Second, Labor and the government are relying on different constitutional interpretations of section 44. This conflict will almost certainly be resolved by the High Court in the Gallagher judgment with lethal consequences.
Labor relies on the 1992 Sykes v Cleary judgment and argues that providing an MP has made “reasonable” efforts to resolve any dual citizenship issues then he or she satisfies the test in section 44 of the Constitution and is eligible to sit in parliament. The government relies on the far more recent High Court decision in the case of Senator Matt Canavan. This provides a different perspective and a stricter interpretation. On this occasion the High Court said: “Their Honours (in Sykes v Cleary) were not suggesting that a candidate who could be said to have made a reasonable effort to comply with s 44 (i) was thereby exempt from compliance.”
The court said that where the circumstances of a candidate gave rise to disqualification “the reasonableness of steps taken by way of inquiry” was “immaterial to the operation of s 44 (i)”. The implication is clear: the “reasonable steps” argument does not apply in the case of Britain but applies in the far more onerous situation where an Australian was not actually able to renounce foreign citizenship, such as former senator Sam Dastyari who would have had to perform military service in Iran in order to renounce his Iranian citizenship.
Government sources confirmed to The Australian that in any future High Court case this far more restrictive application of the “reasonable steps” provision will be the submission the government makes to the court. The government will make this submission believing it reflects the court’s most recent interpretation. This confirms, therefore, the extent of the government-Labor split over the interpretation of section 44 (i).
This reinforces the Turnbull government’s view that Susan Lamb cannot rely upon the “reasonable steps” provision to argue she is still entitled to sit as an MP. Turnbull has made it clear he expects Shorten to take responsibility and address the issue since Lamb is a Labor MP. The fact two Coalition MPs, Joyce and Alexander, have stood down and contested by-elections makes the government only more determined about this course of action.
The political tactics are challenging for both sides. By doing nothing unilaterally, Labor seeks to hold Turnbull responsible for the continuing citizenship mess, saying it will refer its own MPs to the High Court if Turnbull will also refer those Coalition MPs whom Labor claims are in a dubious position. By this action, Labor depicts itself as the responsible player and Turnbull as the obstructionist.
Turnbull, presumably, would be reluctant in the near future to use his numbers unilaterally to refer any Labor MP to the High Court, particularly after Lamb’s emotional speech. He would be accused of political victimisation. But Turnbull doesn’t have to act. He can call upon Shorten to “do the right thing” and, if necessary, wait for the High Court judgment in the Katy Gallagher case — still months away.
What is the situation of the four Coalition MPs under pressure? Here is a snapshot: in the case of Julia Banks and Alex Hawke there are documents from the Hellenic Republic saying neither could be considered Greek citizens. Nola Marino has a document from the Italian consulate in Perth saying she was never an Italian citizen. Jason Falinski has advice from Arnold Bloch Leibler concluding he is not a citizen of anywhere other than Australia and in particular that he is not a Polish citizen.
Labor is unlikely to abandon its stance of equivalence. This raises the further question: if the issue drags on for months, who will the people blame and how might this impact on future by-elections? There are many twists and turns ahead.
There is no constitutional exemption on the grounds of a tough life