Shorten un­der pres­sure as cit­i­zens dead­lock in­ten­si­fies

Su­san Lamb’s emo­tional speech can­not avert her day of reck­on­ing

The Weekend Australian - - INQUIRER - PAUL KELLY ED­I­TOR-AT-LARGE

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

Newspapers in English

Newspapers from Australia

© PressReader. All rights reserved.