Constitutional law expert George Williams likens citizenship crisis to a ‘Pandora’s box’ that could claim up to ‘20 or more parliamentarians’

This article is more than 3 years old

This article is more than 3 years old

The government faces an “uphill battle” in major high court cases dealing with the same-sex marriage postal survey and the eligibility of seven parliamentarians on the current reading of the law, George Williams has warned.

In a speech to the National Press Club on Wednesday, the constitutional law expert and University of NSW professor accused the government of “a surprising constitutional adventurism” in testing the limits of its power and relying on a “creative, quite liberal and generous reading of those powers” by the court.

In October the high court will hear the cases challenging the eligibility of the deputy prime minister, Barnaby Joyce, the Nationals senator Matt Canavan, the resigned Greens senators Scott Ludlam and Larissa Waters, and the One Nation senator Malcolm Roberts. Nick Xenophon and Fiona Nash will also be referred.

Section 44 will remain. It's the government that goes up in smoke | Mark Dreyfus Read more

Williams said that “on the current law it is difficult to see ... that any of the seven parliamentarians who will face the high court are likely to survive that challenge”.

“It is hard to see any of them have taken the reasonable steps that the high court requires to divest themselves of foreign citizenship.”

Williams suggested Labor’s Katy Gallagher could also be in difficulty, depending on the high court ruling, and likened citizenship by descent to a “Pandora’s box” that could claim up to “20 or more parliamentarians”.

Section 44 of the constitution disqualifies anyone who “is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power” from sitting in parliament.

The Turnbull government insists it has strong legal advice from the solicitor general that the better view of the law is that some element of intention or acquiescence to foreign citizenship is required.

Williams warned that view was based on William Dean’s dissent in the case of Sykes v Cleary and it was “exceedingly rare” for a later court to adopt a dissenting view.

Another possible reading – to exclude only those members who have foreign citizenship by birth – had no support in the constitution, he said.

Williams said Joyce’s and the Greens’ eligibility problems “speak less of a constitutional problem ... and more of complacency and poor vetting” by political parties. He cited a simple check he had performed online to confirm a person in Joyce’s situation was a New Zealand citizen by descent.

“In this case it is hard to see why the high court would fashion an exemption when candidates have been warned of this problem and when the information is very easy to obtain through a simple check on the internet.”

Williams described Malcolm Turnbull’s confidence that the high court will find Joyce eligible as “misplaced”.

Williams said section 44 was out of date, arguing it was “hardly consistent with our sovereignty, our stability as a democracy” to allow eligibility for parliament to be determined by other countries’ laws.

On the same-sex marriage postal ballot, Williams said the government was pursuing a non-binding, non-compulsory survey “against the normal understanding of our systems, [and] the clear wishes of parliament”.

The maths of marriage equality: how the yes campaign plans to win 5.5m votes Read more

The high court will hear two challenges to the postal survey next week that will both argue the government cannot appropriate $122m for the postal survey.

Williams noted the finance minister does have the power to make an advance “where there is an urgent need for expenditure and because the expenditure was unforeseen”.

“Now both of those things are hard, I think, to make out here. Urgency perhaps but urgency because of the government’s own political priorities but not for other reasons. Unforeseen? We have been debating this for some time.”

Williams said the government faced “an uphill battle on the state of the law as it currently stands”.

He said it was “unlikely the court will permit the government a back door” to the clear line of authority in the chaplains program cases that the federal government requires parliamentary approval to spend taxpayer money “in almost all circumstances”.

Williams said he did not have definitive answers or claim he could predict the high court outcomes, but said in both cases the government was “running clearly against the grain of high court authority”.

Williams’ speech comes after the education minister, Simon Birmingham, dismissed the central claim of the first no campaign advertisement – that it would affect gender education of children – as a “furphy”.

The Coalition for Marriage ad has already been attacked by Bill Shorten and on Wednesday Fairfax Media reported the principal of the school of one of the mothers contradicted her personal account given in the ad.

The report revealed the mother warning claiming her son’s schools had told him “he could wear a dress to school next year if he wanted” is Cella White, an outspoken critic of the Safe Schools anti-bullying program.

But the principal of her son’s school, Frankston High, John Albiston, reportedly said he had checked with teachers and the incident “never happened”.

“I have never had any complaints that we advised the boys they could wear dresses. We didn’t offer them that option.”