Inside Story

How to be a discriminating voter

Election 2019 | There’s plenty to keep curious voters — and the High Court — busy in the candidates’ disclosures about their ancestry

Jeremy Gans 3 May 2019 3102 words

Entitled to overseas citizenship? Labor member for Herbert, Cathy O’Toole, seen here with opposition leader Bill Shorten at Zac’s Place, a veteran’s support centre, in Townsville last September. Michael Chambers/AAP Image

The day after Anzac Day, the Australian Electoral Commission published around 10,000 pages of documents concerning the 1514 candidates running for federal parliament in the coming election. All candidates are now required to complete a Qualification Checklist — sixteen questions, plus another twenty follow-ups — mostly to do with whether their family is foreign-born or had foreign citizenship. The checklist’s official purposes are to prompt candidates to “actively consider their circumstances” when it comes to eligibility and to inform voters about each candidate’s eligibility.

But the checklist has a bonus for racist voters. They no longer have to guess each candidate’s ethnicity based on the candidate’s surname and picture. Remember those eight last-minute candidates the major parties nominated who all have Anglo-sounding surnames? The checklist reveals that they are all as (non-immigrant) Aussie as you can get. Just one of their forty-eight parents and grandparents — the paternal grandfather of the lone Labor replacement — was born overseas (in Gloucestershire). Last week, I speculated that ethnicity was probably the sole criterion for their selection. This week, one of them resigned after the media noticed that he had made a homophobic attack on a star Liberal candidate.

Peter Killin owed his selection as the Liberal candidate for Wills to the “Indian heritage” of the preselected candidate, Vaishali Ghosh. Her reported legal problem wasn’t foreign citizenship, but rather the possibility that she is “entitled” to some of the privileges of Indian citizenship. As of 2015, people with Indian ancestors are allowed to live in India as long as they want, without a visa or even registering with the police.

Ghosh likely baulked at giving up that right, which would automatically cancel the same right for her spouse and kids. Even though no one knows if a mere right to live in India (without any right to vote or be elected to India’s parliament, or even to work in the public service) is enough to disqualify someone from Australia’s parliament, the Liberals apparently weren’t willing to risk the embarrassment. Instead, they — and the voters of Wills — got Killin.

To find out who else we’ve got, you need to read each candidate’s checklist. It isn’t easy. Some are illegible. Others make no sense. A few give too much information, such as where a candidate spent last Christmas. More give far too little. “I don’t have a legal father,” declares one. (The Labor candidate for Indi is reportedly the child of a non-anonymous sperm donor from New Zealand.) My father “was not listed on my birth certificate,” says another. (Anthony Albanese omits how he recently tracked down his father after his mother’s death, as well as the constitutionally dangerous detail that Carlo Albanese was Italian.) Many detail their foreign ancestry but barely explain why they missed out on foreign citizenship. (Josh Frydenberg’s checklist simply states that his Hungarian and Polish parents were stripped of their foreign citizenship in 1948 and doesn’t address whether they or he might have regained it.)

Some allegedly lie. The commission has no power to refuse a nomination, but it has referred Rod Culleton to the Australian Federal Police. Culleton was the first person to be disqualified after the 2016 election, thanks to a belatedly annulled conviction for stealing some car keys. His problem now is that the government labels him bankrupt, but he ticked “no” to that question on his checklist. Still, the police referral seems unfair. Culleton wrote “see attached” next to his answer and supplied pages of legal argument as to why he isn’t bankrupt (and also why he remained a duly elected senator until parliament was dissolved in April). Right or (more likely) not, his checklist’s transparency makes it a very poor case for prosecution.

Anyway, take a step back for a moment. Why should Culleton’s theft conviction or his bankruptcy or Ghosh’s free-ranging right to move to India automatically rule out their serving in our parliament? After all, none of these things automatically rules out being an Australian police officer or a bankruptcy judge or a diplomat (though they might bite in some circumstances). Nor do they disqualify anyone from being elected to the parliaments of Canada, New Zealand or (except for fraudulent insolvency) the United Kingdom. The fact that Donald Trump might be a US–British dual citizen doesn’t disqualify him from the presidency, and nor would his bankruptcy.

These things may matter a lot to some voters, who should vote accordingly. But others may think they’re irrelevant, understandable or no worse than other politicians’ questionable pasts. The entire point of section 44 of the Constitution is to stop this latter variety of voters from having their say in Australia.

Alas, section 44 remains very popular with many voters, who blame politicians for not “following the rules.” That is the take of the Rise Up Australia Party, which says that last parliament’s debacle shows a “general lack of accountability within the government ranks to ensure all representatives qualify for the very responsible positions they hold,” and wants section 44 to be applied to state parliaments too. “Does the average Australian want their local MP to be a citizen of, and showing allegiance to another country such as Syria, Iraq, Afghanistan, Palestine, Nigeria, North Korea, China and who knows…?”

The checklists of several Rise Up candidates tell a different story. One sent the Italian consulate an email the week before nominations closed with the subject “Urgent Please heck [sic] my dual Citizenship due to upcoming election.” Several wrote on their forms that they had no idea where one or both of their parents were born or whether they ever became Australian citizens. The checklist of the party’s top Senate candidate in Victoria, Rosalie Crestani, includes a set of cryptic German records and her assertion that her relatives all lost their overseas citizenships when they naturalised as Australians. She includes a statutory declaration sworn before her local chemist, stating that “I may be eligible to apply for restoration of an inherited Lithuanian citizenship, however I have not applied for Lithuanian citizenship and will not apply.”

On my count, Crestani is one of a least five Victorian Senate candidates at the top of their party’s lists — and hence with a chance of being elected — with possible section 44 problems. The Help End Marijuana Prohibition’s #1 candidate has an English father and an Irish mother, while Health Australia’s #1 candidate has an Irish father and a UK mother, but neither supplies any evidence of their renunciation of one or both of their British Isles citizenships by descent, a similar problem to multiple MPs last election.

The Secular Party’s top candidate, meanwhile, admits to having been a Pakistani citizen until just a few weeks before nominations closed and supplies only a letter from the Pakistani consulate forwarding his request to Pakistan as proof of his renunciation, the type of move that felled several Labor MPs last time. Sustainable Australia’s main candidate has a Dutch-born father, which could make him Dutch too in some circumstances, depending on when his father moved to Australia and took up Australian citizenship. His checklist doesn’t say.

There is nothing wrong with voting for a potentially disqualified candidate. Even if his or her election is ruled invalid by the High Court, your next preference will count anyway (in the Senate) or you can vote again in a by-election (in the House of Representatives). But if voting for a disqualified candidate is a problem for you, then you need to read each candidate’s checklist.

The main questions to check are 2 (on ancestors’ known foreign births) and 5 (on ancestors’ known “acquired” foreign citizenships). A “no” to both suggests that there are no dual citizenship problems (assuming they didn’t admit to known unknowns in their ancestry — check for a “no” or “N/A” to question 3 or a “no” to question 4). In my own electorate of Melbourne, three of the candidates — from the Liberals, Reason Australia and an independent — appear safe (assuming they filled in the form properly).

Any other candidates need a closer look. In Melbourne, the Animal Justice Party candidate reveals that he has UK-born grandparents, but that’s it for foreign-born ancestors. Although he provides no further explanation, he’s likely in the clear because British law largely precludes citizenship by “double descent.” On the other hand, the United Australia Party candidate, like many others in his party, submitted a checklist that asserts he has both foreign-born and foreign-citizen ancestors, but provides no details about them and doesn’t explain why. There is no way to check his claim that he isn’t a dual citizen. Or his ethnicity, if that matters to you. (“Melbourne is a great multicultural city, and I hope that Melbourne will always be fair, free and strong,” he says in a UAP press release.)

That left the two candidates with the best chance of winning in Melbourne: Greens incumbent Adam Bandt and (until his resignation) Labor challenger Luke Creasey. Both admit to having foreign-citizen ancestors and provide full details. Each denies having any foreign citizenship themselves, but their denials differ. Bandt, who has a British mother, attaches a recent letter from the UK’s “Nationality Team” confirming that Bandt can “derive no claim to British citizenship.” The excellent British citizenship site explains the queasy details: Bandt was born before Britain ditched its sexist ban on citizenship by maternal descent.

By contrast, Creasey, who has grandparents born in what is now Ukraine and Serbia, simply asserts that he “was incapable of acquiring foreign citizenship by descent from my foreign born maternal grandparents because they were stripped of citizenship and rendered stateless due to the events of WWII.” Understandably, he provides no evidence of these historical claims. Less understandably, he also provides no evidence of his current status under Ukrainian or Serbian law. Voters either have to trust that Labor’s vetters have checked these things or do their own foreign-citizenship research.

Creasey has now resigned from the Labor Party (but remains on the ballot, like all “disendorsed” candidates) because of a different part of his history, his social media antics from seven years ago. In revealing the gory details, the Herald Sun mentions in passing that Creasey is “a teacher at Coburg High School.” If that’s true, then he’s undoubtedly disqualified from being an Australian MP for holding an “office for profit under the Crown,” just as Phil Cleary was when he won Wills back in 1992. But it’s likely that Labor made Creasey quit his teaching job before he nominated, and he probably felt safe to do so because Victoria allows federal election candidates who quit their teaching jobs to apply to get their same job back if they lose. The catch is that it is up to the state government whether to rehire them. Thanks to section 44, Creasey must now hope that the education department doesn’t hold his social media past against him.

Voters have an additional role they can choose to play in the coming election: they can enforce section 44 of the Constitution. After the election writs are returned — presently scheduled for no later than Friday 28 June — all voters have forty days during which they can petition the High Court of Australia to challenge the outcome in their electorate or (for the Senate) their state. Bringing a petition is not for the faint-hearted. Petitioners will face close scrutiny from the High Court or the Federal Court, likely responses from senior lawyers hired by the major parties, and the possibility of paying everyone’s legal fees. They have to deposit $500 as security against the latter possibility.

Nevertheless, we’re likely to see a lot of petitions after the 2019 poll, the first since section 44 morphed from oddball annoyance to mass inconvenience in the last parliament. More importantly, it’s also the first poll since the High Court ruled — in dismissing a challenge to the Nationals’ David Gillespie over his interest in a shopping centre with Australia Post as a sub-tenant — that voters cannot bring a challenge in any other way. The only other option is referral by majority of a house of parliament, and the previous parliament promised that it would only refer MPs if they omitted something from their checklist. So, the voters’ right of challenge forty days after the writs close is use it or lose it, especially when it comes to things admitted to in the 1514 checklists.

As well, whether or (more likely) not the checklists succeeded in their goal of prompting candidates “to actively consider their circumstances,” they will help voters seeking to lodge petitions to find potential grounds for a challenge, without relying on the major-party targeting, long-term investigations, luck and media scrutiny that yielded scalps last parliament. That alone isn’t a recipe for chaos. The richest pickings will be in the minor parties, whose candidates generally only win in the Senate, where the most a petition can do is force a recount that typically puts the next candidate in the party’s list into parliament. Challenges to major-party candidates in the House can force a by-election, but voters to date have always simply re-elected the disqualified candidate or their party’s replacement.

What may cause chaos is the nature of the challenges brought. Last parliament’s disqualifications all came about because of MPs’ resignations or referrals by a house of parliament, generally based on clear legal advice that the MPs were in breach of section 44. As well, parliament opted not to refer candidates in some circumstances because of political or moral squeamishness, for example with descendants of second world war refugees, like Josh Frydenberg or Jason Falinski (or Luke Creasey), and especially sympathetic examples like Anthony Albanese. By contrast, individual voters are free, if they’re game, to bring challenges based on much more speculative legal arguments about the outer limits of section 44 against whomever they want. In some instances, voters’ challenges will allow major parties to extract the strategic advantages of such petitions without paying the political cost.

Any number of speculative arguments could be brought, but the commission’s checklists facilitate an especially broad one. The Constitution bans not only dual citizen MPs, but also MPs who are merely “entitled to the rights or privileges of” a foreign citizen. The potential reach of this ban is huge. In my electorate of Melbourne, the Greens’ Bandt is vulnerable, because his ancestry may give him the right to obtain foreign citizenship, as was Labor’s Creasey.

Bandt’s possible entitlement arises because Britain allows him to reverse the earlier sexism of its citizenship-by-descent laws, though his eligibility depends on his mother’s continuing British citizenship and his satisfaction of a “good character” test. Applications can be made online, but cost nearly $2000. Creasey’s possible entitlement to Serbian citizenship, although based on a more distant ancestor, is broader because Serbia allows anyone with Serbian ancestry to claim Serbian citizenship, on applying at an embassy and paying $367. Neither Bandt nor Creasey has to move overseas or prove a present connection to his ancestors’ homelands, though Creasey would have to sign a statement that he “accepts” Serbia as his “country.”

On the perverse logic of section 44, banning people who are merely eligible to become citizens of another country (without onerous requirements) makes sense because a future allegiance may conceivably conflict with an MP’s loyalty to Australia. However, as Australia’s leading constitutional law academic Anne Twomey has rightly commented, such a ban would cause chaos. And, unlike actual citizenship, which can usually be renounced, a possible entitlement to citizenship is, paradoxically, hard to get rid of.

Still, as Twomey says, no one can know for sure if this argument will work until the High Court so holds. Bringing a petition is one way to achieve that end. The same is true for plenty of other speculative arguments, such as ones based on candidates’ business interests, including their interest in companies that lease space to Australia Post, claim childcare benefits or use Medicare.

What is especially tempting about such arguments is that some of them can be applied to MPs in very marginal seats, where a rerun might buck the usual trend of voters simply re-electing disqualified candidates. Labor’s candidate for Australia’s most marginal electorate, Cathy O’Toole, who won Herbert by just thirty-seven votes in 2016, has a Lebanon-born grandfather, which likely entitles her — under a new scheme enthusiastically promoted by the Lebanese government — to reclaim her Lebanese ancestry for free. The checklist for Anne Aly, the sitting member for another ultra-marginal, reveals that she still lacks proof that the Egyptian government has issued a decree removing her Egyptian citizenship, as Egyptian law seems to require.

Labor’s candidate for another key seat, Banks, claims that he lost his Indian citizenship (acquired by descent) when he became an Australian, but that assertion is murkier for people born in Australia. His candidacy raises questions about the significance under Indian law of acquiring an Australian passport and the significance under section 44 of his ability to live in India for life without a visa.

Like many, I think all of the challenges to major-party candidates have long odds (although I’m often wrong about these things). But the lodging of so many petitions in the High Court is still likely to be consequential if the election result is close. If there are lots of petitions, particularly in marginal seats in the lower house, then the size of the incoming government’s majority, or perhaps even its identity, will be uncertain. As well, a large number of petitions — and a disparate set of complex arguments, involving uncertain facts, uncertain foreign laws and novel constitutional issues — will take a long time for the High or Federal Courts to resolve. In short, I predict months of post-election chaos.

But it’s not all bad. If anything could convince voters that the parliamentary qualification problem is mostly down to our dodgy Constitution rather than our dodgy politicians, it’s a lengthy lawyers’ picnic. Perhaps even the major parties will come on board and provide the requisite political support for an urgent referendum. Or perhaps not. Labor’s answers on the smartvote Australia website reveal that it “definitely” opposes allowing dual citizens into parliament. The Liberals “mostly” oppose it. Only the Greens — who played an ignoble role on the issue in the last parliament — “definitely” support change, in the form of replacing the whole section with a new ban on proved corrupt politicians. Discriminating voters — of either sort — should pay especially close attention to those opposing policies. •