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Australia's High Court Really Doesn't Care What Politicians Think

Seriously. It just doesn't care. And now Australia doesn't have a deputy prime minister.

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Australia's High Court has made it crystal clear: It doesn't care what Australian politicians think.

This is one of the strange takeouts of an excoriating high court decision that has knocked five parliamentarians, including the deputy prime minister of Australia Barnaby Joyce, straight out of the parliament. The basis of their disqualification is their dual citizenship.

Australia is full of people who hold dual citizenship. It's a completely ordinary occurrence in a nation of immigrants (28% of Australians were born overseas). So the rest of the world is often confused to learn that the nation's constitution has an archaic clause that prohibits members of parliament from holding dual-citizenship.

All of this started when Greens senator Scott Ludlam fell on his sword in a shock resignation after learning he was a dual New Zealand citizen. His colleagues Larissa Waters was knocked out shortly after, and a flurry of digging from news organisations and bloggers contributed to the unearthing of five other potentially disqualified parliamentarians.

During the court hearing a number of parliamentarians suggested variations on a single theme — that knowledge was required of their status as dual citizens in order to discharge their obligations.

The High Court has only considered how this section operates three or four times in the last 100 years, and only once in great detail, in 1992. The government was banking on a departure from this decision to shore up its position and ensure that Joyce and other parliamentarians kept their seats.

Constitutional interpretation is a little like digging for dinosaur bones. It involves fossicking around very old documents to try and work out whether you have a Stegosaurus, a chicken wing or a disqualified One Nation senator. It's also an extremely imprecise form of discovery, which is plain from the wildly varied predictions from the government and a host of constitutional law academics who have fronted up on radio and television in the last three months.

In this case, the government got it very, very wrong. The court saw no need to depart from its earlier reasoning in 1992, and even shored up the position more aggressively. In doing so, it found that five of the seven parliamentarians should all be disqualified.

The court made its findings in a joint judgment with all seven justices agreeing. Nobody was in dissent, and nobody wrote a concurring but divergent decision. The new bench has made a point of stressing that it is all about stability. It labours this point twice during its reasoning, stressing that the approach it has adopted "avoids the uncertainty and instability that attend the competing approaches". It is in many respects a conservative decision, focused on the text and structure of the constitution first and foremost.

It is it clear the court wasn't concerned about the knowledge of parliamentarians and their dual citizenship. It wasn't even a factor. All it came down to was whether they were dual citizens, and if so, whether or not they took reasonable steps to discharge that citizenship. Those reasonable steps involve adhering to the laws of the foreign state in question and whatever it requires in order to discharge their citizenship. And they found that the five politicians had no real obstacles to taking real steps to discharge their citizenship. Sure, the paperwork is awful. But they just didn't do it.

In rejecting the arguments from the government and other parliamentarians, the court also pointed to the awkwardness of the High Court having to rule on the credibility of a parliamentarian's state of mind.

It described the "practical problems" of "proving or disproving" a parliamentarian's state of mind, and the "regrettable possibility of a want of candour". This is a polite legal way of saying that the court might need to make a finding of fact that a parliamentarian had bent the truth, or downright lied, about what they knew about their citizenship status.

And in doing so, the court dismissed all suggestions that what was in the minds of the politicians was relevant. Knowledge, wilful blindness, intent, none of it mattered.

When it came to Australian politicians and their citizenship, facts mattered. Only facts.

Paul Farrell is a senior reporter for BuzzFeed News and is based in Sydney.

Contact Paul Farrell at

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