Thursday, August 24, 2017

Today by Sean Kelly

The Kiefel Curse
High Court shenanigans


One of the great delights of watching politics is when politicians drop one fairly silly argument – “finally,” we sigh, thinking sanity has come at last – just before substituting it for another, equally silly argument.

In early hearings [$] on the Great Australian Citizenship Fiasco in the High Court today, Senator Matt Canavan, one of the early victims of the dual citizenship disease sweeping the parliament, finally abandoned his famous my-mother-made-me-do-it argument. The argument, put forward by Canavan himself, and trumpeted in newspaper headlines across the country (which ran the full imaginative gamut from ‘Mamma mia!’ to ‘Mama mia!’), was, his barrister now declared, “irrelevant”.

It was irrelevant because the intention was no longer to argue that Canavan couldn’t possibly be an Italian citizen. Henceforth, the barrister declared, the argument would be that, in fact, Canavan had been a citizen all along. Scooby-dooby-doooooo! This, apparently, was the better argument, because Canavan couldn’t possibly be expected to know that in 1983 a pesky modernising judge had done his best to drag Italy into the mid 20th century by finding that citizenship by descent could be passed on by mothers as well as fathers.  

For my money, I can’t see why this is especially helpful. I understand Canavan could not be expected to know the law changed in 1983, given his age at the time. But given it’s been that way for all of his adult life, surely he could be expected to know that was the case when he nominated for parliament?

Luckily for Canavan, I am not a High Court justice.

His barrister also plans to argue that as much as half the Australian population could be excluded from running for parliament if citizenship-by-descent laws are applied. Well, yes … but that case seems to assume none of them are capable of doing the necessary homework to renounce said citizenship. This barrister sounds like he has a very low opinion of parliamentarians.

Perhaps he’s sharper than he seems.

All of this is really by way of interesting tidbit (if this is the type of tidbit you find interesting). What you actually need to know is that the solicitor-general, Dr Stephen Donaghue, for Attorney-General George Brandis, argued that Canavan, Barnaby Joyce, and the former Senator Larissa Waters should not be subject to disqualification, because none of them knew they were dual citizens. Once-was-Senator Scott Ludlam and Senator Malcolm Roberts should get done, though, because they must have known at some point that they were foreign citizens.

The second thing you should know is that Chief Justice Susan Kiefel rejected the government’s request to hear the cases in September, and we’ll get the answer to just how many of us are able to run for parliament sometime after hearings on 10, 11 and 12 October.

In reaching this decision, Justice Kiefel asked Donaghue if he could name a “real practical difficulty in terms of governance” if she chose October.

Donaghue said he couldn’t.

Kiefel is only doing her job, of course, but presumably the government would have been happier if she had asked whether there was a real political difficulty in terms of governance. In which case a dutiful solicitor-general would have had to answer, “Oh yes, Chief Justice, I foresee massive political difficulty!” As David Crowe points out in the Australian today[$], the government may now have to wait months to have the sense of uncertainty resolved. If Joyce has to face a by-election, all this mess could stretch on into the new year.

I suppose that Kiefel had the good sense to choose the sometimes tedious purities of the law over the often exciting impurities of politics, and it’s her absolute right to rub that in.

That said, in a very small way, Kiefel has done Turnbull a favour. This is one of those situations that has occasionally popped up in recent years. There is no doubt the prime minister is in an awful bind right now, and that things keep getting worse. There is also no doubt that this is a temporary prophylactic against leadership instability. If you were even mildly interested in the Liberal leadership, surely you would wait until both the plebiscite mess and the citizenship fiasco were over, or at least close to done? 

The other set of arguments rapidly replacing each other came in the form of government attacks on Bill Shorten.

First you had Tony Abbott announcing that Bill Shorten PM would spend his days merrily ripping down statues of Captain Cook. I stared at that one awhile when it was first reported. I couldn’t believe it was real. Then I realised that of course it was real. Then I went back to believing it wasn’t real for awhile. I thought it was funny. Then I decided it was deadly serious. Then I laughed. It was an emotional 30 seconds.

I accept that whether Abbott is actually a member of the government is up for debate.

Nevertheless, last night Mathias Cormann came out to replace his argument with the accusation that Shorten had made a “deliberate and cynical political judgement that enough Australians have forgotten the historical failure of socialism”.

I’ve sat in a lot of tactics meetings over the years, and I guarantee you that the ability of Australians to recall the historical failure of socialism never came up. 

Finally, you had the prime minister out today saying [$] that, while he wouldn’t call on Shorten to produce his citizenship documents, the Opposition leader was “prepared to cover up anything”.

I’m making fun, but there is a germ of a strategy here. Perhaps the government can make Turnbull’s line work. Cormann isn’t a bad person to deliver an attack, having hung on to his dignity better than some in recent years. And certainly the government needs to tear Shorten down.

But it is only a germ, because, first, the government needs to decide on a single argument. Put Cormann together with a strong argument and maybe you’ve got something. Second, because tearing down your opposite number only works when you launch your attack from solid ground. If Turnbull was doing things, setting a clear agenda, then these attacks might take hold. Right now it all seems a bit clumsy.

And that may well be the case until the High Court makes its findings.

In other news


In search of another narrative

With ‘Taboo’, Kim Scott sketches out a new way of accepting our histories, and imagining our future.

Shannon Burns

Taboo shifts deftly between distinctive points of view while embracing multiple generic forms, from tragedy to farce. Kim Scott flirts with the revenge or retribution tale – and the demand for clear endings and a satisfying comeuppance – while veering in another direction entirely. As his ghostly narrators explain, ‘Our people gave up on that Payback stuff long ago, because we always knew death is only one part of a story that is forever beginning.’”  READ ON


Wicked problems

What are the real reasons behind the rise and stall of Malcolm Turnbull?

Laura Tingle

“The big question on the day was whether Turnbull’s colleagues would allow him to move on policy, would recognise that voters had rejected – along with Abbott himself – much of the Coalition’s message. The answer came almost instantly, as details of a deal with the Nationals – on climate change, same-sex marriage and the budget – emerged. The looming disaster for the Coalition had already been set up.” (May 2017)  READ ON


Sean Kelly

Sean Kelly is a columnist for The Sydney Morning Herald and The Age, and was an adviser to Labor prime ministers Julia Gillard and Kevin Rudd.



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