As the section 44 “dual citizenship” superbug continues to race at lightning speed through the Australian parliament, the phrase “constitutional crisis” is beginning to appear in media coverage of the story. I imagine these words are also being whispered in the corridors of power by MP’s of all political affiliations as they grimly attempt to forecast “who’s next?” and shore up their defences against the virus.

“Constitutional crisis” is a phrase that arouses strong emotions in Australian politics because it recalls memories of the November 1975 sacking of Gough Whitlam’s Labor government by Governor-General John Kerr. The election that was triggered by Whitlam’s dismissal resulted in a resounding victory for the Liberal National Coalition led by Malcolm Fraser. For the present Turnbull Coalition government, media talk of a “constitutional crisis” implies its own day of political reckoning draws nigh.

At last count four MPs are to go before the High Court to determine if they are legally unable to hold parliamentary office because of dual citizenship concerns. Embarrassingly one of the four is Deputy Prime Minister Barnaby Joyce who last week was outed as holding dual Australian and New Zealand citizenship. Joining Joyce in the queue are National’s Senators Matt Canavan, Fiona Nash and One Nation Senator Malcolm Roberts. Independent Senator Nick Xenophon is under a cloud and two Greens senators have already resigned after conceding they are dual citizens. The Court will also be asked to decide what happens to the vacated Greens’ seats. The term “constitutional crisis” is gaining currency because the Turnbull government has a one-seat majority in the House of Representatives, meaning that should Joyce be disqualified by the Court, his seat of New England will likely be subject to a by-election. In a horror scenario, a decision that Joyce has been invalidly elected could trigger a change of government.

A notable feature of the 1975 constitutional crisis was the extent that questions around the legality of the protagonists’ actions framed the narrative of the events. Kerr justified his decision to sack Whitlam as legally necessary to resolve a political deadlock between the two houses of parliament. The Liberal held Senate were blocking the passage of bills of supply proposed by the House of Representatives (in which Whitlam held a small majority). The Chief Justice of the High Court, Sir Garfield Barwick was one of two High Court judges who privately counselled Kerr on his course of action. Barwick’s legal opinion advised Kerr it was his constitutional “duty” to bring an end to the deadlock by dismissing Whitlam. Regardless of the legality of Kerr’s actions, the Chief Justice’s decision to intervene in the issue and direct the manner of its resolution muddied the boundaries between law and politics.

The section 44 crisis has a very different flavour to the events of 1975. To date, the question of the MP’s eligibility hasn’t stopped parliament in its tracks and we can be confident the Court will decide the issue of the eligibility of the four MPs to sit in an independent and transparent manner. But as was the case in 1975, the dual citizenship issue has generated extraordinary interest in the question of how the fate of an Australian government may be resolved under constitutional law.

As many constitutional experts have noted the outcome of the citizenship case depends on how the Court interprets the constitutional text. Will the Court take a literal approach to section 44 (sometimes called a legalistic approach) or will it take an “activist” approach and consider the underlying democratic principles and values which inspired its drafters? Somewhat ironically the Turbull government’s prospects of defending Mr Joyce may depend on its ability to persuade the Court to adopt an activist approach to interpreting the vexatious provision.

The public commentary by constitutional law experts isn’t encouraging from the government’s perspective. Recent case law on section 44 suggests the Court will be unreceptive towards any values based arguments made by the Solicitor-General. Earlier this year the Court had to decide whether Senator Rodney Culleton should be disqualified under section 44 (ii) because at the time of the 2016 election he had been convicted of an “offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer.” The majority eschewed considerations of constitutional purpose or electoral fairness in holding that Culleton’s annulled conviction for a minor offence was still a conviction which disqualified him from office.[1]

For the cases on citizenship, the relevant wording of section 44(i) says that any person who "is under any acknowledgment of allegiance, obedience or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power is incapable of being chosen or sitting as a member of the federal parliament." A literal interpretation of the provision would suggest that a person cannot be validly elected if they are a dual citizen at the time they stand for parliament. Further, values-based arguments centred on electoral fairness may be unappealing to the Court because there are competing values in the mix. On the one hand, there is the value of maintaining the representative character of a parliament chosen by the people. On the other, there is the value of ensuring parliament’s un-divided commitment to the national interest. The Court may be unwilling to weigh up those values- a task it may prefer the electorate to decide via a referendum to amend the constitution.

Prime Minister Malcolm Turnbull has said publicly that “the Australian people must have confidence in our political system and resolving any uncertainty is vital.” He has chosen to resolve the question of Joyce’s eligibility to sit by putting the issue to the Court but Joyce has been allowed to remain in situ until the Court passes judgment. Joyce’s continued presence in parliament is awkward given the uncertainty over the Court’s outcome. Meanwhile the section 44 superbug is diverting resources from the government’s policy agenda at a time when its members are deeply divided on the issue of same sex marriage. The government’s preference for a High Court resolution is logical but is it preferable to a political solution?

So far there has been no suggestion from the government that a political solution be brokered with Labor and the cross-benches. Independent Senator Cory Bernadi has called for parliament to be prorogued. Senator Derryn Hinch, also an Independent has argued for an audit of the citizenship status of all parliamentarians. So far Labor politicians haven’t shown symptoms of infection so it isn’t really in their interests to cooperate. That could change quickly. In this volatile climate, the government might consider the Independent’s idea of a joint parliamentary committee to contain and assess the scope of the problem. If it is sufficiently serious then an election may be preferable to further piecemeal referrals to the Court. There is clearly an argument for suspending the ABS marriage survey given the doubts over Joyce’s status.

Gough Whitlam always maintained the crisis of November 1975 was mischaracterised as “constitutional”.  In his memoir of the events he wrote “It must be emphasised the crisis of November 1975 was essentially a political crisis, capable of solution by political means.”[2]  I can’t help but wonder if in years to come there will be a deluge of memoirs lamenting that the legal crisis of August 2017 was not politically resolved.

[1] Re Culleton [No 2] [2017] HCA 4

[2]  Gough Whitlam “The Truth of the Matter” (Melbourne University Press, 1979), 2