So Malcolm Turnbull’s big idea to end the dual citizen crisis is to ask (or perhaps tell – it is not clear which) his troops, and presumably the rest of the parliament, to explain openly and concisely whether they believe they are compliant with the constitution or not.
And those who admit to doubts, and perhaps also those whom Turnbull is unsure about, will be shuffled off the High Court in a large and probably amorphous parcel for processing.
It’s taken a long time even to get to this point, with the loss of five parliamentarians, the parole of two more, and at least another eight –some say as many as thirty – with extras being added on a daily basis, waiting on the diving board.
But even assuming Turnbull can secure bipartisanship for his approach, it will almost certainly be inadequate. He insists that this is not an audit – there is, obviously, no auditor. It comes back to long-trumpeted demand for personal responsibility: members and senators must be diligent, scrupulous and transparent with their approach to the dreaded section 44.
And indeed they should, but there is a problem – they don’t. We’ve already tried that and it doesn’t work. Before nominating for parliament, every candidate must sign off on a declaration that they are not in breach of section 44. And to spell it out for the slow readers, the form helpfully quotes the exact words of the constitution and explains what they mean, especially the bit about the dangers of dual citizenship.
Presumably our prospective parliamentarians understood what it said, or, if they were unsure, had taken advice. What is certain is that once they sashayed into the big white house on the hill, they felt safe: all done, no worries. But, as we have seen, there were plenty of worries, and not a lot of eagerness to confront them.
Barnaby Joyce, the most flamboyant of the many offenders, said virtuously that as soon as those on his side the aisle realised they could be in trouble, they instantly fessed up and went to the High Court for judgement. Well, some did, but some didn’t, and one of those who didn’t was Joyce himself. Only when he was outed by a number of questioners (and they weren’t all in either the Australian Labor Party or the New Zealand Labour Party) did Joyce admit that he wasn’t quite as dinky di as he seemed.
Even when Turnbull assured the world that there was nothing to see here, the High Court would so hold, etc, his deputy leader knew that it wouldn’t be quite as easy as that. But he, like his own deputy Fiona Nash, sat tight in their ministerial offices, happily making executive decisions, and, encouraged by his example, others – most notoriously Stephen Parry – decided that they too could ride out a minor squall which the High Court would swiftly disperse, restoring the good weather – at least, as good as it ever seems to get under the Turnbull regime.
It appeared that the High Court’s unanimous decision might have offered some sort of clarity, but apparently not: it alerted at least one other Liberal, John Alexander, to the fact that he was almost certainly in breach, but it still took him the best part of a week to pull the pin. However, even before then, Turnbull had decided to get tough – or, more accurately, to play tough, which is usually as far as it goes.
His threat to refer his opponents as well as his supposed allies to the Court if there is a reasonable suspicion (presumably by him – and given his recent record in predicting the Court’s decision this is not reassuring) not only smashes a long-standing convention, but makes genuine bipartisanship impossible – which may be why Turnbull has escalated the division.
But he is reluctant to abandon another parliamentary tradition, that of self-regulation. The idea has always been that members of parliament can be trusted not only to tell the truth, but to submit to the hardly onerous checks that the various laws and codes impose on them.
Unfortunately they do not always comply: whether through deliberate deception, negligence, a sense of entitlement or a feeling that they just can’t be bothered, there has been case after case of rorting travel expenses, returns of pecuniary interests, and, now, their eligibility to nominate, let alone be elected.
And in most instances they get away with it with a slap on the wrist and a demand that they hand back at least some of their ill-gotten gains. Occasionally there is a more severe penalty – think of Bronwyn Bishop and Sussan Ley. But even when a tall poppy falls, it does not seem to deter those who seem to feel that the rules are voluntary, or can at least be negotiated.
The hard fact is that self-regulation has failed: disclosure must be compelled, and either the Turnbull’s formula or the amended version proposed by Bill Shorten will not give certainty to the parliament or, more importantly, convince the public that the ship of state is back on course.
It can be argued that the High Court ruling has set an impossibly high standard, and that in today’s multi-cultural Australia section 44 should be brought up to date; as it happens I agree. But this is not going to occur quickly, if at all. Turnbull’s immediate problem is to get through the parliamentary year intact, and then find a way through the inevitable aftermath that the referrals, by-elections and replacements will entail. This will be neither quick nor easy.
But the immediate issues is simply securing the numbers. With the coalition down to 73 after appointing a speaker in a House of Representatives reduced to 148, Turnbull is now leading a minority government and must rely on crossbenchers to get anything done, even to remain in office. Adam Bandt generally will not support him; Andrew Wilkie might or might not; and with Bob Katter, who knows.
This leaves Cathy McGowan, who is onside, and Rebekha Sharkie, who would like to be, but has issues of her own; Turnbull has already advised her to refer herself to the High Court. And if she is rubbed out, it will make Turnbull’s position even more precarious.
But hey, he is a good man in crisis, he says. Which may explain why he brings so many of them on himself. Never had so much fun in his whole life.