By Malcolm Mackerras
Back on Friday September 8 there was posted on this website my article “Barnaby Joyce should have resigned seat in August.” It referred to the citizenship cases - a subject to which today’s contribution returns. However, expecting a Queensland state election to be called during my absence overseas I made a forecast which was that Labor would win an election I expected to be held on Saturday October 28. My prediction of the date was slightly out but my forecast of the result stands. It is 50 seats for Labor, 36 for the Liberal National Party, four for Pauline Hanson’s One Nation Party, two for Katter’s Australian Party (Hill and Traeger) and one for The Greens (South Brisbane). I shall contribute a detailed article on Queensland later this month.
I ask readers to pardon my bragging but can now say: “I told you so.” It would have been far better for Joyce, Malcolm Turnbull and the government generally if he had taken my advice which was to resign his seat of New England on Monday 14 August, the day New Zealand’s then prime minister, Bill English, told the world that Joyce was a New Zealand citizen. I repeat another comment I made in that article, namely: “He can thank his lucky stars (and his own good judgment) that he is a member of the House of Representatives. He would remember that he began his political career as a senator. Indeed, he took his Senate seat (representing Queensland) on the same day as Fiona Nash took her seat as a New South Wales senator. The date was 1 July 2005, both Nationals having been elected in October 2004.”
I have contributed several articles to this website on the question of members of federal parliament seeing their seats confiscated from them by the power of the High Court. They have been “What will happen with Bob Day’s vacant Senate seat”  (Monday November 7 2016), “Will Family First retain its Senate seat?" (Friday April 7 2017), “My sympathy for Culleton, Day, Ludlam and Waters” (Thursday July 20) “Why Section 44 of the Constitution needs fixing” (Thursday July 27) and the most recent article, noted above. I now add this thought: the sympathy I expressed for former senators Culleton, Day, Ludlam and Waters is hereby joined by my sympathy for Nash.
It is to be noted that neither Joyce nor The Nationals generally get any sympathy from me. Joyce will win New England handsomely and be back in the job of deputy prime minister early in December. The Nationals suffer a short-term loss of a Senate seat to the Liberal Party’s Hollie Hughes – but they will recover that seat in July 2023. In the meantime I do not believe the Liberal Party should (or will) try to use this situation to take a ministerial position from The Nationals. As a party they deserve no sympathy. Their lack of due diligence has created a quite un-necessary degree of trouble for the Liberal Party.
I notice that these decisions of the Court have, generally speaking, been praised by the commentariat. I decline to join the praise. I am not a fan of this Court. I admit that, in one sense, these are “black letter law” decisions. To that extent I do not condemn them. Most pundits expected exactly what has happened. Turnbull was very foolish to predict otherwise. The only defence for his behaviour – and the folly of Joyce – could be the possibility that the Court might otherwise have made a finding against Matt Canavan. I don’t think so. His position was so strong I think he would have survived whatever Turnbull and Joyce did.
It is true that on this occasion the Court did not engage in judicial law-making. It worshipped instead at the shrine of precedent. However, it should be remembered that just two decades ago the Court did engage in judicial law-making when it confiscated the Senate seat won by Heather Hill of One Nation. In 1998 she was elected for Queensland to a six-year term with a quota in her own right. She never served as a senator because the seat was confiscated before she could even begin her term. The whole idea that birth in New Zealand or Canada makes you an agent of a foreign power is absurd. The same argument which created my sympathy for Ludlam and Waters applies to Nash – hence my sympathy for her. I felt very sorry for Hill in 1998.
When Joyce wins New England in December it will create a perfect historical law – very rare in the social sciences. The law is that whenever the Court confiscates a seat from a member of the House of Representatives the people reverse the Court’s decision. It shows the fair mindedness of ordinary people. It happened with Phil Cleary in 1993 and with Jackie Kelly in 1996. Unlike those poor former senators, the lower house member can get rid of the impediment discovered by the Court – as Joyce has now done.
(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.