Friday Filing: Are You (Only) An Australian?

With much media hoopla, the High Court of Australia, sitting as the Court of Disputed Returns, today handed down judgements in the case of the seven Federal politicians who, in light of information that became public, were unsure whether they were eligible under the Constitution of Australia to be nominated for, and subsequently elected, to one of the houses of the Federal Parliament. Of the seven individuals awaiting the outcome of the Court’s deliberations, six were members of the Australian Senate, and one was a member of the House of Representatives, the lower house of Parliament, where holding a majority of seats means that a political party (or coalition of parties) is able to form government. Given that the member of the House of Representatives was a member of the current government, the outcome of that particular case would have repercussions beyond just the political fate of the member in question.

Of the six Senators awaiting the outcome of today’s judgement, two were members of the coalition currently holding government, two were members of the Australian Greens (who, I hasten to add, had immediately resigned from the Senate when their eligibility became questionable), and the remaining two were members of the crossbenches, i.e. they came from the smaller political parties that are represented in the Senate chamber.

Further adding to the interest in today’s judgement of the Court, all three members of the coalition currently forming government held ministerial posts, i.e. they were also part of the executive branch. Needless to say, the outcomes of their particular cases were of significance to the ability of the executive branch to be able to fulfil its functions without disruption. In fact, two of the three had continued to exercise their ministerial responsibilities right up until the judgement was delivered. More about that later.

At the end of the judgement being handed down by the Court, the lay of the land was radically different to beforehand. Of the seven current or former federal politicians whose eligibility for nomination and election was being examined, the Court has ruled that five were ineligible to be nominated and therefore could not be validly elected to their respective houses of the Commonwealth Parliament. The outcome has serious ramifications for the current federal government.

Of the three members of the current government under examination, two have been found ineligible. Both of them were ministers in the government, and one was the only member of the House of Representatives among those being examined. This means that there will need to be a by-election for his seat – it’s already been announced – and also means that, technically, the governing coalition of political parties, while still holding the most seats in the House of Representatives, no longer holds a majority of the seats. It has become a minority government until the member who seat has been vacated by the Court presumably is re-elected at the by-election (and assuming he has rectified his citizenship status before he nominates for said by-election). To lose two ministers might be considered regrettable; to lose majority government is downright careless.

Of the remaining four politicians under examination, three have been ruled ineligible for nomination and thus not validly elected. Two had already resigned from the Senate (both from the Australian Greens), while the other, from the One Nation party, will not be overly missed from the Senate. In fact, both the Senate and Senate Estimates hearings will be free from the climate-denialist, conspiracy-based nonsense that the said former Senator was often found to be asserting even in the face of overwhelming evidence. This can only be a good thing. The one crossbench Senator who was found to be eligible for nomination and thus validly elected had already signaled his intention to resign from the Senate in order to return to State-based politics.

In the ultimate wash-up, the only federal politician who will remain in the Commonwealth Parliament is the Senator who stood aside from his ministerial responsibilities when his eligibility first came into question. The other six have already gone, are now gone, or were going anyway.

So tonight, Australia finds itself being temporarily governed by a minority government, with a by-election in one lower house seat coming soon, and needing to replace a few senators.

As I mentioned above, however, that’s not all that Australia will be facing in coming weeks and months. Because two of the five politicians who have been found to be ineligible for nomination and subsequent election to the Parliament were also ministers in the government heading departments of the executive government and, further, because they had refused to step aside from their ministerial responsibilities when their eligibility was first questioned, there is now the very real possibility that any or all of the decisions they took while continuing in their ministerial roles may be questioned or challenged as invalid. The Court, of course, didn’t rule on this today because it wasn’t the question placed before the Court, but the Constitution permits someone to be a minister for three months only before they must have a seat in one of the houses of the Commonwealth Parliament. A number of different scenarios have been put forward as to when that time may be counted from, but whichever method is adopted there will be at least some decisions made by the two ministers that are now uncertain or unclear. How this consequence of today’s judgement by the Court will unfold remains to be seen, but the political landscape of Australia is going to remain uncertain long after the fall-out of the eligibility of particular individuals has settled comfortably over the Commonwealth landscape.

The unfolding of this citizenship drama has been fascinating to watch, with claims and counterclaims, with the suggestion from the Prime Minister no less that the Court would reach a certain decision, and with the greatest interest in the Constitution since the Republic referendum of 1999. An increased interest in the foundational legal document of our country can only be a good thing.

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