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  • Writer's pictureHannah Phillips

The Barnaby Saga

At the Liberal Party room meeting on Tuesday the Prime Minister accused the Opposition Leader of colluding with a foreign power.

The foreign power was New Zealand and the context was a question on notice in the New Zealand Parliament which led to Barnaby Joyce being outed as a New Zealand citizen.

The New Zealand Labour Leader, Jacinta Arden, revealed that an ALP staffer had contacted a New Zealand Labour Member, Chris Hipkins, and requested that he ask the NZ Minister for Internal Affairs, Peter Dunne, whether any Australian federal politician was a New Zealand citizen.

Ms Arden said that the action by the ALP staffer and the member of her Party was inappropriate.

As a consequence of these events New Zealand Prime Minister, Bill English, confirmed on Monday that Barnaby Joyce was a New Zealand citizen by descent, whether he liked it or not.

There is some conjecture about Mr Turnbull’s version of events.

Ms Arden denies that her Party knew that the enquiries related to Barnaby Joyce.

Peter Dunne says that his initial enquiries of his department were not prompted by Mr Hipkins’ question but because of an approach by Fairfax Media journalist Adam Gartrell.

He had asked some hypothetical questions of the NZ Department of Internal Affairs and consulted a New Zealand academic, Professor Anna Hood of the University of Auckland.

They, along with some other experts, confirmed that anyone born to a New Zealand father between 1949 and 1978 was automatically a New Zealand citizen.

Gartrell told the Deputy Prime Minister’s office last Thursday that he had the story, so Mr Joyce had the weekend to prepare a response.

This included getting the Solicitor-General’s advice that he was still eligible to stay in Cabinet and to vote in the House of Representatives and writing to the NZ government to renounce his citizenship.

However, while the government was prepared legally, it seemed under-prepared politically.

On Monday the opposition came into the House good to go.

Bill Shorten asked the Prime Minister whether Barnaby Joyce should be allowed to stay in Cabinet and to vote in the House of Representatives.

Malcolm Turnbull responded that the Solicitor-General had advised that the Deputy Prime Minister was eligible to stay in Cabinet and to vote and that he was confident that the High Court would hold that this was the case.

The Barnaby Saga - In The House of Representatives

The fun and games started when Barnaby Joyce rose to answer a Dorothy Dixer.

The Leader of Opposition Business in the House, Tony Burke, took a point of order, namely that as the House of Representatives had unanimously agreed to refer the Minister’s eligibility to sit in Parliament to the High Court, sitting as the Court of Disputed Returns, he should not be answering questions.

The Speaker ruled the question in order but no sooner had he done so than Tony Burke moved that Mr Joyce be no longer heard.

When that vote was lost, Mr Burke moved a suspension of standing orders so that the matter could be debated.

By this time the government had lost control of the House.

Subsuming the opposition’s shenanigans was an argument that two important divisions, relating to the bank royal commission and penalty rates bills, had been lost by one vote and that they were therefore illegitimate because Mr Joyce was ineligible to sit in the House.

The Barnaby Saga - New Zealand Involvement?

On Tuesday the government went into over-reach: Julie Bishop called a press conference and accused New Zealand Labour of colluding with the Australian Labor Party to undermine a sovereign Australian government.

New Zealand has an election in five weeks’ time and Ms Bishop said she could have trouble working with a New Zealand Labour government.

This led Tony Burke to ask Ms Bishop in question time on Tuesday whether “if you are going to have trouble working with New Zealanders, how are you going to work with the Deputy Prime Minister?”

On Tuesday evening the Labor Leader in the Senate, Penny Wong, admitted that one of her staffers had contacted Mr Hiskins but she claimed that neither she nor her staffer knew that he intended to ask a question in Parliament.

Former New Zealand Foreign Minister Winston Peters backed up Ms Bishop, saying that what Messrs Hiskins and Dunne had done was “the equivalent of an underarm delivery” and could impact on Australia - New Zealand relations.

The Barnaby Saga - The High Court

Barnaby Joyce’s case is different to the other matters that have been referred to the High Court, the Canavan and Roberts cases.

Senator Canavan became an Italian citizen through the intervention of his mother and Senator Roberts was allegedly born a British citizen.

The Joyce matter fits the opinion of High Court Judges Brennan, Toohey and Deane in the Cleary case, that you cannot become a citizen of another country by fiat.

Mr Joyce became a citizen purely through the act of the New Zealand government, even though he was born in Australia.

There is an added twist: New Zealand law requires a person to register their citizenship if it is to be a matter of public record.

Barnaby Joyce had made no attempt to register as a New Zealand citizen.

Under the Deane test this would mean that he was not in breach of section 44(1) of the constitution.

On the other hand he is entitled to the benefits of New Zealand citizenship and, until last weekend, had done nothing to renounce it.

On a strict reading of the constitution this would put him in breach of the section.

The Barnaby Saga - Can It Change the Government?

Is the government on a knife edge with its majority of one?

Probably not, until there is a decision from the High Court, which could occur as early as next week.

The Solicitor-General’s advice that he is eligible to vote provides the government with cover.

If the Court decides against Barnaby Joyce then there will be fifty days before a by-election is held and he is returned to Parliament.

In that period they will not be able to pass any legislation and may not be able to guarantee confidence.

The government could ask the Governor General to prorogue Parliament if the opposition wants to play hard ball.

Alternatively Labor could refuse a pair for Barnaby Joyce and claim that the government does not have the confidence of the House, thereby forcing an election.

However it would probably be a bad move for the Labor Party to push for an election now.

There doesn’t seem to be an appetite for one in the electorate and removing a government in these circumstances might be resented by the public as being mean and tricky.

It is more likely that the opposition will just want to keep the government on the back foot and looking chaotic.

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