Last Wednesday the High Court held that ACT Senator, Labor’s Katy Gallagher, was ineligible to sit in the parliament because she was a ‘dual citizen’ when she nominated.
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She becomes the sixth Senator or member of the House of Representatives to fall foul of section 44(i) of the Australian Constitution in this term of government and has precipitated an avalanche of resignations.
Labor’s Justine Keay, Susan Lamb and Josh Wilson and Rebekha Sharkie of the Centre Alliance (formerly XEN), all faced similar circumstances – their attempts to renounce their dual citizenship before nomination failed.
All four resigned on Wednesday May 9 which means there will be by-elections in these four seats on June 16.
So what are the anticipated outcomes of these by-elections?
Justine Keay won the Tasmanian seat of Braddon from the Liberals in 2016 and holds the seat with a margin of 2.2 per cent, and if you ask them, no doubt the Liberals would give themselves a good chance of regaining this seat.
Susan Lamb won the Queensland seat of Longman at the last election, defeating Wyatt Roy by a razor slim margin of 0.79 per cent.
Again, the LNP would expect to regain this seat.
Labor will hold Fremantle, as the margin for Josh Wilson, in 2016, was 7.52 per cent.
Rebekha Sharkie, will stand for Xenophon’s new Centre Alliance, but she will have difficulty holding Mayo, despite the 5.35 per cent margin.
In all likelihood it would return to the Liberals, as the lustre of the Xenophon brand has faded – clearly demonstrated by his poor performance at the last South Australian election.
The Senate composition will not change as Labor’s David Smith, second on their ACT ticket, will automatically replace Gallagher.
If this analysis is accurate, Labor could lose two House of Representatives seats to the Liberals and the Centre Alliance one to the Liberals.
There is no doubt, though, that these by-elections will be fiercely fought.
The Joint Standing Committee on Electoral Matters (JSEM) is currently preparing a report to the parliament which will most likely recommend a referendum on section 44(i) to remove the dual citizenship test.
While such a move would be ideal, and would have bi-partisan support, there is no guarantee it would succeed.
While all successful referendums since WWII have had bi-partisanship support, it is easy to imagine a disruptive, divisive and xenophobic campaign by elements of the extreme right in Australian politics.
As anachronistic and out-dated as section 44(i) appears, the best response to the High Court’s ‘black letter’ legal interpretation of the section, may well be to ensure that all future candidates for the Senate and the House of Representatives are vetted so as to ensure their eligibility.
This is a role that the Australian Electoral Commission, with appropriate legal support, is ideally suited to play.
Many fine careers, and contributors to the Australian polity have been destroyed by inadvertence, by bad legal advice and by lax party procedures.
And also by a High Court which refuses to recognise the realities of our contemporary multicultural society.