As a desperate Turnbull government tries to treat the Barnaby Joyce affair as a Pauline Hanson fever dream – blame it on the foreigners! We’re the victims of the dastardly New Zealand Labour Party! – our own government has chosen to further that narrative, and make itself an accomplice.
Evidently, the National government is similarly desperate for anything that might discredit or derail the Ardern juggernaut, even if that means throwing Internal Affairs Minister Peter Dunne under a bus. Hey, one bad poll for Dunne in Ohariu, and Foreign Minister Gerry Brownlee has been willing to come out and flatly contradict Dunne – his own Cabinet colleague – on the issue of whose inquiries had set the Joyce scandal in motion.
According to Dunne and according to the Department of Internal Affairs, the Joyce inquiries were initiated by a Fairfax journalist [his name is Adam Gartrell] who had got wind of the problems that Joyce had on the citizenship front. That’s Gartrell’s version of the sequence, too. According to Gartrell, he got the tip off on Monday 7 August, did some digging and sent an inquiry to Joyce’s office around noon on the same day:
At 12.31pm on Monday, August 7, I sent Joyce’s media adviser, Jake Smith, an email entitled: “Is the boss a Kiwi?”
So the point was being raised well before anyone on this side of the Tasman got involved. Two days later, Hipkins lodged his two written Parliamentary questions about our citizenship laws. Neither of them mention Joyce, and Hipkins had yet to receive a reply to either of them. Meaning: if the engine for this story was the NZ Labour Party, this train wouldn’t have left the station yet. At most, Hipkins is a piffling footnote and not the driver of these events. As Dunne put it succinctly on Twitter:
This is so much utter nonsense – while Hipkins’ questions were inappropriate, they were not the instigator. Australian media inquiries were
Exactly. The real conspiracy here isn’t the one between Hipkins and his mates in the Australian Labor Party. It’s the one between the National Party and the Liberal coalition in Australia. In both countries, the two conservative governments have found common cause in running a treasonous conspiracy theory aimed at their respective opposition parties.
Gerry Brownlee and his Aussie counterpart Julie Bishop are running this line even though, as the Guardian mockingly said yesterday, Bishop has somehow kept a straight face while blaming it all on the furriners. For the beleaguered Turnbull administration, any distraction from the potential loss of their lower house majority is a godsend. Similarly, a New Zealand National government in election mode is out to smear its revitalized Labour opposition in any way it possibly can.
Talk about fake news. Goodness me, if you believe Julie Bishop, maybe the Turnbull government might not to be able to work in future with a Labour government in this country, if New Zealanders should be so rash as elect one in September. I liked the snarky response in the Aussie Parliament yesterday by Labor MP Tony Burke: if Bishop can’t work with New Zealanders in future, how does she propose to work with her own deputy PM ?
Ludicrous, really. The same National government that’s been so timid about complaining to Canberra about the treatment of Kiwis in Aussie detention camps is now blaming that Chris Hipkins has put future trans-Tasman relations in jeopardy, by asking two written parliamentary questions, withdrawn before they received a reply. Do Brownlee/Bishop really expect to believe that the Turnbull government is the innocent victim of foreign treachery? Only a month ago – when the same constitutional trap caught out a few opposition MPs – Barnaby Joyce was more than happy to claim that such problems were entirely self-inflicted.
So far, Peter Dunne has been a quiet voice of reason on this issue. It was Dunne who confirmed that unwittingly or otherwise, Joyce was a New Zealand citizen by birth under our law, unless he had taken steps to renounce his citizenship, which he apparently hadn’t. It was Dunne who clarified whose inquiries had kicked off the scandal. Moreover, as Dunne helpfully pointed out – and Winston Peters should take note – the relevant issue here is Joyce’s objective citizenship status at the time he was elected, not his state of mind or his intentions. Under the Australian Constitution, that is what determines whether Joyce has ever been a legitimate MP.
Jacinda Ardern, for her part, has handled the first international flap under her leadership admirably and showed the same sort of steely aplomb that one used to associate with Helen Clark. For example:
Labour leader Jacinda Ardern has issued a statement on Australian Foreign Minister Julie Bishop’s comments saying it is “highly regrettable” she “has chosen to make false claims about the New Zealand Labour Party…I have been utterly transparent about this situation. I stand by my statements this morning that I knew absolutely nothing about the Barnaby Joyce case until it broke in the media yesterday afternoon.
“I had no knowledge about the Parliamentary Questions lodged by Chris Hipkins MP. I have also been clear that those questions were not appropriate. I also note that Internal Affairs Minister Peter Dunne has confirmed that the Australian media inquiries were the instigator of this issue and that he has described connections of the New Zealand Labour Party to this issue as “utter nonsense.”
“I greatly value New Zealand’s relationship with the Australian Government. I will not let false claims stand in the way of that relationship. I would happily take a call from Julie Bishop to clarify matters.”
Even if it damages Transtasman relationships forever to say so, the Australian Constitution is a very odd document. For example: under the “Definitions” section at article six, one finds this peculiar paragraph:
The States shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia and South Australia, including the Northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called a state.”
In other words… in 2017, the Australian Constitution still regards New Zealand as a colony that can opt to join the Commonwealth of Australia, any time it chooses. Thanks mate, but no thanks. Currently, Barnaby Joyce ‘s constitutional pickle has been referred to the High Court for a ruling. Yes, it is very, very weird that the Turnbull government is asking the courts to decide whether it still has a valid parliamentary majority. No pressure, your honours. No, this government is not leaning on you to do the right thing by us, not at all. Perish the thought.
The even odder thing is that normally conservative politicians love, love, love the “black and white letter of the law” and regard judicial activism as a tool of the devil. Well, suck it up. Because this is what the black and white letter of section 44 (i) of the Australian Consitution says:
44. Any person who –
(i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power… shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Yet with their backs against the wall, Australian conservatives are now asking the High Court to indulge in judicial activism and shoehorn into the picture a lot of stuff about Joyce’s state of mind and reasonable intent that simply isn’t there in the Constitution’s black and white letter. In Parliament yesterday, Malcolm Turnbull appeared very confident that an activist court would have mercy on Joyce, and find in his favour.
On the face of it, Turnbull has some reason to feel chipper about his chances. The relevant Australian case here is probably Sykes v Cleary – which is mainly about a slightly different part of section 44, but which goes on to discuss two secondary cases very similar to Joyce’s in that they involve involuntary citizenship, to politicians unaware they had dual citizenship. This part of the Sykes v Cleary ruling appears to give real hope to Joyce:
….There is no reason why s. 44(i) should be read as if it were intended to give unqualified effect to [ the status objectively conferred by] international law. To do so might well result in the disqualification of Australian citizens on whom there was imposed involuntarily by operation of foreign law a continuing foreign nationality, notwithstanding that they had taken reasonable steps to renounce that foreign nationality. It would be wrong to interpret the constitutional provision in such a way as to disbar an Australian citizen who had taken all reasonable steps to divest himself or herself of any conflicting allegiance.
It has been said that the provision was designed to ensure: “that members of Parliament did not have a split allegiance and were not, as far as possible, subject to any improper influence from foreign governments….”
In that setting, it could scarcely have been intended to disqualify an Australian citizen for election to Parliament on account of his or her continuing to possess a foreign nationality, notwithstanding that he or she had taken reasonable steps to renounce that nationality. In this respect it is significant that s. 42 of the Constitution requires a member of Parliament to take an oath or affirmation of allegiance in the form set out in the schedule to the Constitution.
A further gold nugget of legal reasoning for Joyce came in the added comments by Brennan J. This could be taken to address the peculiarity of the Joyce situation, whereby the citizenship of a foreign country – like an honorary degree that the recipient doesn’t want – is conferred on them anyway, and this bit of foreign law then determines how Australia’s Constitution is to be read. Brennan J hits this particular nail on the head:
If foreign law were recognized in these situations, some Australian citizens would be needlessly deprived of the capacity to seek election to the Parliament and other Australians would be needlessly deprived of the right to choose the disqualified citizens to represent them.
Terrific material for Joyce. But it still doesn’t give him a clear route out of this mess. It will all come down to what can reasonably be expected of him:
What amounts to the taking of reasonable steps to renounce foreign nationality must depend upon the circumstances of the particular case. What is reasonable will turn on the situation of the individual, the requirements of the foreign law and the extent of the connexion between the individual and the foreign State of which he or she is alleged to be a subject or citizen…
Here’s where it gets tricky for Joyce, though. The court’s definition of “reasonable steps” seems to place quite a high level of responsibility upon him. And, surely, that’s entirely fitting, given that he’s put himself forward to be elected to public office:
The second respondent omitted to make a demand for release from Swiss citizenship which would have been granted automatically as he has no residence in Switzerland and has been an Australian citizen for thirty-two years. Because he has failed to make such a demand, it cannot be said that he has taken reasonable steps to divest himself of Swiss citizenship and the rights and privileges of such a citizen.
The third respondent has omitted to seek the approval of the appropriate Greek Minister for the discharge of his Greek nationality. Whether the grant of that approval is a matter of discretion or is automatic is not altogether clear. Presumably it is the former. But, in the absence of an application for the exercise of the discretion in favour of releasing the third respondent from his Greek citizenship, it cannot be said that he has taken reasonable steps to divest himself of Greek citizenship and the rights and privileges of such a citizen.
That same expectation would seem to apply to Joyce as well. Presumably, Barnaby Joyce knew that his father James Joyce had been born in New Zealand. It seems entirely reasonable to expect that before standing for Parliament, Barnaby Joyce should have taken steps to clarify whether his father’s origins had any citizenship implications for him, by virtue of descent. Joyce was elected to Parliament in 2004. The Sykes v Cleary case was argued in 1992, and as I’ve indicated, it had dealt with how citizenship rights impact on the eligibility to stand for Parliament.
Furthermore, given the extent of globalisation and the access rights by birth to say, the European Union, surely Joyce can be reasonably expected to have checked this out before now, and well before the media brought it up this week. Given that this issue has been affecting other MPs for months in Australia, what steps – if any – did Joyce take to clarify his own position, and when did he take them? Its not as if this is a hard question to sort out. Peter Dunne and the DIA seem to have sorted it out in a morning.
Certainly, the Sykes v Cleary ruling doesn’t give Joyce any confidence that the High Court will definitely rule in his favour. Yes, the ruling contains elements in his favour, but it also has elements that should be keeping him awake at night. In the meantime, Joyce should be stepping aside from his ministerial duties and taking no part in voting on legislation until the cloud over his legitimacy has been lifted. Ultimately, the Turnbull government should be blaming Barnaby Joyce entirely for getting them into this mess, and not Chris Hipkins.
Unsung genius, over sung
By definition pop music is supposed to be ‘popular’… so there’s a category problem with tracks that qualify for greatness by any normal criterion except for that one missing ingredient: they never got popular, never found an audience. “Across The Piedmont” by the Rock*A*Teens came out in 1999, on their Golden Time album on Merge Records. It never got much of a hearing. At the time, this is how one reviewer gamely tried to sum up the band’s general intent:
Each song is a mini-epic of confused crooning and wailing, drenched in atmosphere and dipped in poetry. There’s a general feeling that one is hearing some sort of gothic rockabilly, not due to spooky subject matter, but due to the general chaos and weird keyboards that peek around corners. The subject matter mostly adheres to ruminations on relationships, sounding like grizzled iambic pentameter. “Small Town Soap Opera” is indicative of the general goings-on; “There’s cats in your head, but don’t listen to a single word they said,” vocalist Chris Lopez sings as his band burns wickedly through Southern noir….The Rock*A*Teens are all about atmosphere and power.
Yep. Atmosphere, power and the lack thereof – but delivered in a buttoned-down way that underlines the churning emotions more effectively than overt anarchy and mayhem would have done. Evidently, Singer Chris Lopez has just bidden goodbye to someone disappearing across the Piedmont hills in Georgia “ in that summer when I turned 23…” He’s clearly suffering from a severe case of “Oh Lord, how can it be?” as the song tumbles through climaxes with no resolution, just the next encounter with another wave of anxiety, regret and longing… It’s a great pop song.