PM’s confidence in ‘judicial activism’ not shared by all – September 2017

Filed under: Politics, Australian Politics,

It is no small irony that conservative politicians have in the past been the most vigorous critics of the High Court for “judicial activism” – most frequently National Party politicians in relation to the Court’s Mabo decision.

Then National Party leader Tim Fischer was so outraged by the Mabo decision, which he said threatened to “break the economy and break up Australia” that he argued that that increasing judicial activism demonstrated the need to appoint “capital-c” conservative judges to the High Court.

Legal academic Gabrielle Appleby writing in The Conversation in 2014 said, “Fischer believed that the judges were making decisions on the basis of political rather than legal considerations.”

Eight politicians (if one includes the ‘human headline’ Derryn Hinch, who wants to be referred to the High Court – or maybe he doesn’t – because he holds a US ‘greencard’), including most notably the National’s leader Barnaby Joyce, deputy leader Fiona Nash and former minister Senator Matt Canavan, may now be looking to the High Court to apply a bit of creative re-interpretation to section 44 of the Constitution prohibiting dual nationals from serving as federal parliamentarians, to reconcile the 1901 Constitution with changes since then in citizenship arrangements in both Australia and in many other countries from which politicians or their families have migrated.

If the Court applies strict ‘black letter law’ to the dual nationality provision the consequences for the Government are likely to be extremely damaging .

A government which has taken repeated hammerings over the last couple of months from the dual citizenship debate, its handling of the same-sex marriage issue culminating in the voluntary Bureau of Statistics poll (which MP opponents say they will not be bound by and whose validity is itself the subject of two High Court challenges to be heard on Tuesday 5 and Wednesday 6 September), which is under pressure over its handling of the Chief Scientist’s recommendation for a Clean Energy Target and which is under sustained attack from former leader Tony Abbott and his allies in the media, is not one which wants to be facing by-elections and Senate recounts.

Little wonder Prime Minister Malcolm Turnbull has appeared rattled and unwisely expressed his confidence both that the High Court will find in favour of Mr Joyce; and that if it doesn’t the deputy prime minister would win any by-election in his New England seat.

That’s quite a leap.

Prominent legal academic Professor George Williams, dean of law at the University of NSW, does not share the Prime Minister’s confidence in relation to Mr Joyce – nor does he think the same-sex marriage postal poll will survive its High Court challenge.

In a wide ranging speech to the National Press Club on the two High Court challenges (see link below for his full speech) Professor Williams said, “The government faces a challenging task in convincing the High Court of its positions on dual citizenship and the postal survey. In both cases, it is running against the grain of existing High Court authority.”

About the only good news Professor Williams had for the Government on the two matters was that he thought the Court would make a quick decision on the same-sex marriage poll, although probably not on the dual citizenship matter.

In his speech Professor Williams said the dual citizenship problem “was so predictable. It has long been known that the dominoes were waiting to fall.”

The issue was examined by a parliamentary committee in 1997 which concluded “that section 44 was a recipe for chaos.”

He asked “Why should the court reach a strained interpretation of section 44 of the Constitution to remedy a problem parliament has identified, but failed to fix?” and expressed the view that “All up, the record shows little evidence of High Court willingness to interpret section 44 in a manner favourable to parliamentarians. It makes grim reading for anyone hoping for a lenient court.”

He also noted that he had been able to determine Mr Joyce’s dual citizenship eligibility after three minutes of googling. “It is hard to see why the High Court would excuse a person in these circumstances. Ignorance is not a plausible explanation when citizenship by descent is so common, and the barest inquiry would have identified the problem. Joyce’s case, and those of the Greens members, speak less of a problem with the Constitution, and more of complacency and inadequate party vetting processes

“The prime minister has said of his deputy that he is ‘qualified to sit in the house and the High Court will so hold.’ Such confidence is misplaced. Joyce may survive the High Court challenge, but I would be surprised if he does so. No more can be said, as the High Court can be notoriously difficult to predict.”

And he was also of the view that “The court will still likely take time to consider the answer, and weeks may pass before we have both the orders and reasons

Adding to the Government’s perfect storm, the latest closely-watched Newspoll showed the Government dropping further behind (46 to 54 per cent on a two-party preferred basis) after six previous polls had shown it stalled at 47 to 53 per cent. (See Newspoll.)

The issues before the High Court have proved a major distraction for the Government, which has sought to show that it is getting on with ‘the business of government’ by staging a number of events which many commentators dismissed as stunts: Prime Minister Malcolm Turnbull flew to the Snowy Mountains to announce that money was starting to flow for his Snowy 2.0 stored energy plan, which he originally announced in March; and Social Service Minister Christian Porter announced the proposed sites for drug-testing welfare recipients – part of legislation which the Senate may or may not pass. (For more details of the welfare changes see Drug tests for welfare beneficiaries part of broader welfare changes.)

Federal politics has been dominated by these two issues which the High Court is now being asked to resolve. That they must both now be settled by the High Court means they will drag on and continue to dominate the political agenda until the end of the year.

The Court is due to hear the case on the eligibility of dual-citizen MPs on 10, 11 and 12 October and on whether the voluntary postal poll can proceed on 5 and 6 September. (For timelines on both matters see Same-sex marriage poll – dates and Dual citizenship – High Court dates.)

The Government’s pain will not be eased for some time at least particularly if, as is possible and as Professor Williams thinks likely in relation to dual citizenship, a decision is not announced until sometime after the matters are heard.

The Bureau of Statistics is due to begin mailing the same-sex marriage survey on 12 September with the poll due to close on 7 November and results to be announced on 15 November.

The Bureau of Statistics has published details of how different categories of citizens can participate in the postal ballot, including arrangements for people travelling, remote Indigenous communities residents of aged care facilities.

With these High Court matters hanging over the Government’s head, Parliament will resume on Monday 4 September after a two week break. It is due to sit for a six weeks before Christmas.

Further Reading

Inside Story: Dual citizens and the postal survey: what might the High Court say? Full text of Professor George Williams’s National Press Club speech

Australian Bureau of Statistics: Australian Marriage Law Postal Survey

Australian Electoral Commission: Enrolment processing for the marriage survey completed

Australian Financial Review - Phillip Coorey: Barnaby Joyce will win any by-election, says Malcolm Turnbull

SBS.com.au: Dual citizenship: Turnbull 'very confident' High court will rule in favour of MPs

ABC - Opinion - Jonathan Green - Fears swallowed by the steady unfolding of reality (June 2012)

ABC: Mabo - a timeline (June 2012)

The Conversation - Gabrielle Appleby: Appointing Australia’s highest judges deserves proper scrutiny (December 2014)

Australian Financial Review: Constitutional saga over MPs' dual citizenship will not be heard until mid-October

The Australian: Windsor to fight political rival over dual citizenship

The Conversation - Anne Twomey: If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?

The Conversation - Michelle Grattan: Marriage survey: two-thirds of new voters are aged 18-24

The Conversation - Michelle Grattan: Government urges the High Court to hear citizenship cases in mid-September

The Conversation - Michelle Grattan: Coalition position worsens in Newspoll to trail 46-54%

SBS.com.au: Dual citizenship: PM 'very confident' High Court will rule in Joyce's favour

ABC: Derryn Hinch heading to High Court after US social security card puts Senate eligibility in doubt

Guardian Australia - Comment - Mark Dreyfus: Section 44 will remain. It's the government that goes up in smoke

Huffington Post: 'I Am Number Eight,' Hinch To Hitch A Ride To The High Court

The Australian Financial Review - Rear Window: The Parliament's last dual citizenship crisis wasn't a big deal