Inside Story

Anne Aly and the insurmountable obstacle

The High Court has set a new citizenship test for parliamentarians of uncertain status, but who on earth could pass it?

Jeremy Gans 11 May 2018 2724 words

Star recruit: Anne Aly campaigning for the seat of Cowan in July 2016 with opposition leader Bill Shorten (centre) and Labor’s Matt Keogh (left) and Louise Pratt (far right). Richard Wainwright/AAP Image

In July 2016 Anne Aly became the first Muslim woman elected to the House of Representatives. Labor’s Australia Day announcement that the counterterrorism expert and Q&A panellist was its “surprise recruit” had been a brave step. Then, rather than running her in the vacant seat of Fremantle — which became vacant again this week after Josh Wilson resigned over his dual citizenship — she was selected to take on a Liberal two-termer, Luke Simpkins, who had once fretted that halal meat was turning Australians Muslim.

Labor’s gamble paid off handsomely. With a 5 per cent swing her way, Aly won the outer-Perth seat of Cowan by the narrowest of margins, bringing Bill Shorten within a seat of the prime ministership. But a High Court decision this week means that a nomination like Aly’s will almost certainly never happen again. In finding ACT senator Katy Gallagher’s election invalid, the High Court doubled down yet again on its strict reading of the constitutional provision that bars Australians from electing whom they choose.

Aly, for one, backs the court’s strict approach. “There should be really no excuse for everyone checking,” she said in July last year, after the ABC’s Belinda Varischetti asked if she had any sympathy whatsoever for the Greens senator Larissa Waters. Waters had announced that she was a Canadian just a day after her fellow Greens senator Scott Ludlam revealed he was a New Zealander. Aly’s response is the one that Labor has consistently given on the citizenship crisis: “Really, it should come down to the parties and the nomination processes in ensuring that they vet their candidates thoroughly and ensure that their candidates are eligible.”

The repeated claim that the only problem in this parliament was a lack of due diligence started life as a convenient way for the major parties to paint minor ones, such as the Greens and the Xenophon Team, as too incompetent to govern. When National and then Liberal MPs started to fall, Labor used the same line to mercilessly torture the hapless Malcolm Turnbull. Now it is Labor’s well-deserved turn to squirm. Five of the last six MPs to be felled by section 44(i) of the Constitution are from Labor, which now boasts the most invalidly elected parliamentarians of any party.

Labor’s confidence that the constitutional crisis would pass it by rested on the party’s renowned process for “vetting” its nominees. As Aly told Varischetti, “The party was very much about following up and ensuring that I did take all the measures that were necessary.” It made sure that she quit her professorship at Edith Cowan University, for example, removing any argument that she held an “office for profit under the Crown.” But all that took was a letter from Aly to her employer. Labor’s vetting revealed that Aly had a much bigger problem.

“There’s some people, once they take on Australian citizenship, they automatically lose their country of birth citizenship or any other dual citizenship that they have,” Aly explained last year. “For other people it’s a bit more difficult.” For Aly, who was born in Egypt, it was a lot more difficult. Like Waters, she moved to Australia as an infant and never held a foreign passport. And, like Waters, it seems that she nevertheless remained a foreigner, even when she had been nominated for Australian of the Year in early 2016.

Egypt, like Waters’s birthplace of Canada, doesn’t automatically dump its citizens when they become foreigners. To the contrary, Article 10 of Egypt’s nationality law says:

An Egyptian may not acquire a foreign nationality except after obtaining a permission therefor, to be issued by decree of the Minister of Interior. Otherwise, he shall continue to be regarded in all cases as Egyptian from all points of view, unless the Council of Ministers decide to strip him of the nationality according to the provisions of Article 16…

Aly may have first realised her problem back in 2007, when she was briefly in third place on the Greens ticket for the Senate in Western Australia before pulling out for some reason. (The first on the ticket, Scott Ludlam, got into the Senate that year, invalidly as it turns out.) Aly was certainly well aware of her citizenship problem on 8 May 2016, the day writs were issued for that year’s federal election. The same week, she wrote to the Egyptian embassy asking to renounce her Egyptian citizenship and (thirty-two years late!) for permission to take up Australian citizenship.

What took her so long? Part of it would have been her surprise candidature. Aly had probably given no thought at all to her Egyptian citizenship for years, until Labor asked her to run for Cowan. The other part is the complexity of renouncing Egyptian citizenship. The consulate gave her the relevant form, but it was in Arabic and asked her for things she didn’t have, like her Egyptian ID number. Labor gave her “a lot of help in filling out the form,” she later told the ABC. “I then had to get the form signed by a justice of the peace, and then by a notary public, and then take it to our offices here in Australia and get it signed by our Department of Foreign Affairs and Trade and get a seal on it and then send it back to Egypt.” Even with her party’s help, it took her at least three months just to complete the paperwork.

According to this week’s High Court ruling, that’s her problem. The Constitution does not “ensure the ability of foreign citizens to nominate” at any election, much less a “snap election.” Rather, as one judge lectured, prospective candidates for office must be vigilant “not simply as to the taking of available remedial action but also as to the timing of that available remedial action.” For the roughly 50 per cent of Australians who are (mostly unknowing) dual citizens, neither Australia’s unpredictable electoral cycle nor foreign countries’ paperwork is any excuse at all.

The High Court’s ruling left many things murky as usual. But its consequence for future candidates like Aly is crystal clear. The political practice of drafting high-profile figures into political office as an election looms (or the preselected candidate quits) must now exclude the half of the population who might have inherited an unwanted foreign citizenship. The parties may be willing to punt on a British or Canadian or New Zealand Australian sometime, as those countries’ bureaucracies are amenable to being hurried along. But no party will ever take such a risk with someone with a more obscure citizenship that requires navigating an unfamiliar language or culture or legal system. Those folks can wait until next time, if at all.

Aly herself was lucky to slip into the parliament two years ago, before any of these problems were realised. But her political future is much more difficult. She told the ABC last year that her Egyptian citizenship has always been a barrier: “I’ve had the question from the day I was announced actually. You know, people have been asking me this question for a long time.” Again, she repeated her party’s line: “I don’t, you know, really take offence to it, it’s in the rules,” though she added, “if people keep pressing it, say ‘well I want to see proof’ or anything like that then it might get a bit tiresome.” She’s about to get very tired.

Late last year, all MPs were required to fill in a questionnaire about their citizenship. Aly’s was very short. She denied ever acquiring foreign citizenship (including from either of her foreign-born spouses) but admitted that she was an Egyptian at birth. She simply declared, “I received confirmation of my renunciation from the Egyptian Embassy.” But the one-page letter she appended has two problems. One is that it is dated 31 July 2017, fifteen days after she spoke to the ABC and over a year after she was elected to parliament. The other is that it doesn’t confirm her renunciation at all. Instead, it simply says: “This request was presented by Mrs Aly on the 4th of May 2016.”

The High Court has now ruled that a mere request to renounce isn’t enough, unless the foreign law says it is. Egypt’s nationality law says a request isn’t enough. Article 16 of that law says:

The Ministers Council may issue a decree stripping the Egyptian Nationality off anyone enjoying it, in any of the following cases:

1. If he enters a foreign nationality, in a manner other than what is set forth in sub article 10.

(As a bonus, the council can also strip Aly of her Egyptian citizenship “if at any time [she] has been qualified as a Zionist.”) What is required in every case is a government decree that (according to Article 22 of the Egyptian nationality law) must be published and can’t be retrospective. Aly’s register has no proof of the date of any decree by the Egyptian government, in particular whether it occurred before she nominated (on 9 June 2016). Worse, there’s no proof that the decree has been made at all. She may well still be Egyptian.

Mark Dreyfus, who pursued Liberal Party MPs like Jason Falinski and Josh Fryberg over their possible citizenship via descent or restoration under murky European laws, now says that Aly lost her citizenship when she became an Australian in 1984. The Egyptian embassy did indeed tell another Labor MP, Peter Khalil, that that is how Egyptian law works, but that advice concerned his parents, who became Australian citizens in the early 1970s, before Egypt adopted its current nationality law. As always, Australian foreign-descended MPs’ fates will now turn on esoteric disputes about the meaning of changeable and vague foreign laws.

Labor’s problem is that its vettors took a relaxed approach to many of these issues on the basis of what has turned out to be incorrect legal advice. Last year, Aly told the ABC: “The rules do state that as long as you’ve taken all reasonable measures and done everything that you can to renounce your citizenship.” But, this week, the High Court did not so hold: “It is not sufficient that a person in her position has taken all steps reasonably required by the foreign law which are within her or his power.” Decisions of foreign officials, as required by the foreign law, are no more optional than mailing in the paperwork.

In short, unless the Egyptians removed Aly’s citizenship either when she became an Australian in 1984 or when she tried to renounce before June last year, her stunning election win in 2016 is almost certainly invalid. Worse still, if her Egyptian citizenship remains intact right now, then her ability to stand again — whether in a by-election or in the next federal election — rests entirely on how quickly she can get the Egyptians to act. With the next federal poll expected to be tight, it’s unimaginable that Labor would allow her to run again unless she has a copy of the interior minister’s decree (or some ironclad Egyptian legal advice) in her hand.

This week, the High Court provided an escape for people like Aly. The constitutional bar on electing dual citizens doesn’t apply where foreign law contains “an insurmountable obstacle, such as a requirement with which compliance is not possible.” The majority gave just one example of such a law: a requirement to travel to a dangerous country. A further example was given by another judge: a requirement to complete overseas military service first. Neither of these seem to apply to Egypt. Indeed, no one knows if they apply to any country at all — for example Iran, where Sam Dastyari spent tens of thousands to (perhaps!) renounce his citizenship, or the United States (which now expressly demands thousands up front to do the same).

The irony with the High Court’s “insurmountable obstacle” test is that there is an insurmountable obstacle to its being tested. Before the court can rule on whether a particular country’s requirements are insurmountable, a dual citizen from that country must first run for office, be elected, and then be challenged. But what party would risk nominating such a candidate? Instead, dual citizens’ only practical option in such cases is to surmount the insurmountable (and to do so long before they seek preselection).

Last year, a clearly puzzled Belinda Varischetti asked Anne Aly whether she agreed with the ban on dual citizens being elected. After all, Aly had spent years researching how terrorism is caused by ostracism, had faced a year of questioning of her own citizenship and had criticised the government’s policies on immigration. Alas, the member for Cowan parroted Labor’s politics of convenience: “If you want to serve your community, then you have to tick the boxes.”

Four months later, the High Court endorsed the bizarre view that the ban on dual-citizenship MPs is designed “to ensure that members of the Parliament do not have split allegiance.” The irony, though, is that this week’s ruling puts Australia’s major parties in an appalling bind when it comes to their own dual-citizen MPs and candidates: their political fate has been put in the hands of foreign governments. In response to Aly’s urgent request, the Egyptian embassy has now published a new and rather odd letter stating:

Dr Anne Aly renounced Egyptian citizenship on 6 May 2016 having completed all the steps required and as of that date had completely renounced her Egyptian citizenship. Nothing further needed to be done to make her renunciation effective. In addition, according to Egyptian Law Article 16 of Law Number 26 issued in 1975, that any Egyptian who obtains another Nationality without permission will lose his/her Egyptian Nationality by default.

This letter curiously — and for the Labor Party, very conveniently — omits any mention of the requirements for decrees by the interior minister and the Ministers’ Council, and flat out contradicts the text of Article 10 of the law, set out above. The letter could be correct (perhaps relying on a court decision interpreting the law, or some sort of general decree) or it could simply be wrong. Either way, you can bet that the government will be following up with more queries to the embassy and seeking its own advice about foreign law.

In the meantime, though, what is the likelihood that either Malcolm Turnbull or Bill Shorten will take a hard line against the government of Egypt on a policy issue in coming months? And what will the successful side owe to the government of Abdel Fattah el-Sisi if, by some stroke of good fortune, Aly’s citizenship problem is resolved by the Egyptians, one way or another, before then? Variations on this same theme will become a permanent part of the Australian process, unless the parties stop nominating people of difficult ethnicities altogether.

None of this is necessary. If, back in October last year, the High Court had had the wisdom to “so hold” that section 44 only bars people with plausible split allegiances — and certainly not people who either didn’t know they were foreign citizens or had made good-faith efforts to permanently rid themselves of that citizenship — then we wouldn’t be here now. Alternatively, if a majority of Australians were willing to vote to replace section 44 with the same rules that apply to every state parliament and every other nation like ours, then we wouldn’t be here next year. But these things are unlikely to happen, because Australian political parties and chatterers of all stripes — Green, Red and Blue, and the media — are all too willing to put their self-interest ahead of a sensible resolution of the citizenship crisis.

I have enormous sympathy for the many individual MPs who have lost or will lose their careers because of our inept Constitution, court and representatives, including the five politicians whose elected careers at least paused this week. But I do agree with Aly on one thing: when it comes to politicians, “I think it should be very clear where your loyalties lie.” Do politicians who have made it clear that their allegiance lies with their political party rather than their principles, their experiences or their fellow dual citizens deserve to be in office? •