New proposals to end the citizenship crisis could allow MPs and senators to hide questions over their eligibility until it’s too late for them to be challenged by voters or election opponents.
The Prime Minister wants all parliamentarians to publicly answer questions about their citizenship and family background within 21 days of being sworn into office. But analysis by this blog shows that – for future elections – the 21 day time frame will often expire AFTER the deadline for a public challenge of the results has already passed.
That’s because, by law, members of the public can only refer a disputed election result to the High Court within 40 days of the election ‘writs’ (results) being returned. But that process begins weeks before MPs are sworn in.
So MPs with a questionable citizenship status could, at least in theory, wait until the deadline for public disputes passes before declaring their details, reducing their chances of being referred to the High Court.
And state-based federal senators – who normally begin their terms several months after being elected – would avoid any opportunity for voters to challenge to their citizenship declaration at all, given the deadline for public challenge will be well and truly passed by the time they take their seats.
“My citizenship paperwork is in the post”
All elected representatives would still be subject to referral to the High Court by Parliament, as is the case now, though would largely be protected from public challenge based on their citizenship declarations alone.
It could also potentially lead to MPs and senators pushing back against challenges by claiming any citizenship questions will be answered in the paperwork when it is published – and then not completing the forms until the deadline for public referral to the High Court has passed.
It would then be in the gift of the MPs themselves (and the governing party) whether to make a referral to the High Court or not, keeping scrutiny powers firmly in the hands of Parliament instead of voters.
The ‘escape clause’ for MPs and senators casts further doubt on the effectiveness of a 21 day citizenship declaration period, which has already been heavily criticised as inadequate.
What would have happened at previous elections?
In 2016, the Opening of Parliament took place 22 days after the return of writs. With a 21 day disclosure period kicking in at that point, MPs and senators would have had a three day window to declare their citizenship background AFTER the 40 day deadline for public challenge had already
Granted, that’s not a lot – but if there were questions over citizenship, an evasive MP could hang out until the last few days before submitting their forms, thereby avoiding the danger of a public challenge. Parliament would then need to refer the MP to the High Court in order for the case to be taken up (which it may or may not do).
In both 2010 and 2013, if the 21 day rule existed, MPs in the lower house would have had to declare their citizenship status before the deadline for public disputes, so that’s okay. However, senators at both of these elections were sworn in months after that deadline was passed (the following year, in fact), meaning their declarations would not be subject to any public challenge.
In 2007 things would have been even worse for public scrutiny: the deadline for public dispute would have come and gone before either the lower house or upper house were even sworn in.
Table: Number of days MPs and senators would be able to post citizenship declarations at previous elections AFTER the deadline for public referral to the High Court has already passed (if the 21 day declaration rule was in place)
|Election year||Lower house MPs||Upper house senators|
|2007||All 21 days||All 21 days|
|2010||0 days||All 21 days|
|2013||0 days||All 21 days|
|2016||3 days||3 days|
Except in the case of double-dissolution elections, state senators are normally selected at federal elections but not sworn in until July the following year (as happened in 2007, 2010 and 2013). So any citizenship declarations made when they take their seats will be worthless in regards to a public challenge.
Labor are calling for citizenship declarations to happen within five days instead of 21. That would have fixed the issue in 2016 but wouldn’t have solved the problem in the prior elections outlined in the table above.
Whilst the recent Section 44 cases in the High Court have all been referred to it by Parliament (albeit reluctantly in some cases), public challenges have previously led to elected politicians being disqualified, including One Nation candidate Heather Hill in 1999.
Is this the biggest problem with the Prime Minister’s proposals? No. But it is still a problem. This analysis suggests that if the 21 day declaration period goes ahead as planned, it risks limiting public scrutiny at future elections, opening up the timelines to exploitation and damaging public confidence in politicians even further.
The whole proposal seems like sticky taping over the cracks – but if there is going to be a formal disclosure of citizenship status then it is essential it is open to challenge by voters, not just politicians.