2017-18 Australian parliamentary eligibility crisis

src: alhr.org.au

In 2017, the eligibility of a number of Australian members of Parliament to be elected to the Parliament of Australia was called into question. With an increasing number of political casualties, it became a protracted political event, referred to by some as a constitutional crisis. The situation arose primarily due to section 44(i) of the Australian Constitution, which prohibits members of either house from having allegiance to a foreign power. On that basis, the High Court of Australia had previously held that someone who holds dual citizenship is ineligible for election unless they have taken "reasonable steps" to renounce the foreign citizenship before nomination.

Seven parliamentarians, referred to collectively in the media as the "Citizenship Seven", were referred to the High Court between August and September in 2017, each by the house of parliament in which the member sat. They were: Senator Scott Ludlam, co-deputy leader of the Greens; Senator Larissa Waters, also co-deputy leader of the Greens; Senator Matt Canavan, Resources Minister; Barnaby Joyce MP, Deputy Prime Minister; Senator Malcolm Roberts of One Nation; Senator Fiona Nash, the third Cabinet member; and Senator Nick Xenophon, minor party leader. Ludlam and Waters voluntarily resigned their Senate seats, while Canavan resigned from the Ministry.

The Court's unanimous decision determined that Canavan and Xenophon had been eligible for election, unlike the other five who were dual citizens at the time of nomination. After countbacks, the High Court approved successors from the same parties to Ludlam, Waters, and Roberts.

In November 2017, several resignations followed the Court's decision as more parliamentarians recognised their dual citizenship, beginning with the President of the Senate, Liberal Stephen Parry. Liberal MP John Alexander's resignation cost the Coalition Government its majority in the lower house, although Joyce and Alexander soon regained their seats in by-elections. Senators Jacqui Lambie and the NXT's Skye Kakoschke-Moore also resigned.

Publication of a register of parliamentarians' citizenship status in December 2017, introduced by Prime Minister Malcolm Turnbull, revealed the positions of several other members of both houses to be in doubt. Labor's Senator Katy Gallagher and MP David Feeney were the first to be referred to the High Court as a result of this measure; Feeney resigned in February 2018, before his case was heard.

A mainly Labor proposal in the House of Representatives for further referrals of members on both sides to the High Court, particularly so as to define "reasonable steps" for citizenship renunciation, was lost on a tied vote.

The crisis has also involved parts of section 44 not concerning dual citizenship. The High Court ruled in November that Nash's presumptive successor was ineligible due to holding an office of profit under the Crown, contrary to section 44(iv), and in December that Jim Molan would replace her. However, in February 2018 Jacqui Lambie's deemed successor Steve Martin survived a similar challenge. A further court challenge has been brought against National MP David Gillespie, alleging a breach of the "pecuniary interest" requirement in section 44(v).

Video 2017-18 Australian parliamentary eligibility crisis

Background

Legal requirements

The Australian Constitution does not require candidates for the Commonwealth Parliament to hold Australian citizenship (which did not come into existence until 1949), but this is now required by the Commonwealth Electoral Act 1918 as amended. However, section 42 of the Constitution does require all members of the Parliament to swear allegiance to the Queen before taking their seat. Members must not also owe allegiance to any other country, including holding a foreign citizenship. Section 44(i) of the Constitution provides:

44. Any person who -

(i.) Is under any acknowledgement 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

...

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Application

Section 44(i) has generally been interpreted by the High Court of Australia as meaning that persons with dual citizenship are not permitted to stand for election and that a person must take "reasonable steps" to renounce their citizenship of the other country. The section has rarely been invoked before.

In Sykes v Cleary (1992), after finding that a candidate who had been declared elected in a by-election was ineligible under Section 44(iv) of the Constitution, the High Court ruled that both of the candidates who were likely to have been elected by a countback were ineligible under s 44(i). When they had become Australian citizens, they had renounced all foreign nationality (as Australian law then required), but they had not attempted to renounce under the law of their home countries and therefore were still subjects of a foreign power. They should have taken at least "reasonable steps" to do that, before nominating. What would be "reasonable steps" for any future candidate would depend on the individual circumstances. In 1999, in Sue v Hill, the High Court found that a British citizen who had been declared elected to the Senate in 1998 was disqualified under s 44(i). Although the UK had not been a "foreign power" in 1901, it had been so at least since the Australia Act 1986.

Earlier application of section 44 in the 45th Parliament

The prelude to the crisis began when Bob Day of the Family First Party resigned from the Senate on 1 November 2016 following the collapse of his business. Shortly after Day's resignation, the government announced that it would move in the Senate to refer to the High Court the matter of the validity of Day's election in July 2016 in regard to a possible breach of section 44(v) of the Constitution, which provides that a person who "has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth" (and s 44 continues) "shall be incapable of being chosen or of sitting" as a member of either house of the Parliament--and it follows that they are ineligible to be nominated for election to either house. The basis of the complaint was that, at Day's request, his Commonwealth-funded electorate office was by lease of part of a building in Adelaide that he indirectly owned, so that the Commonwealth's payments of rent would eventually come into a bank account of his own. In April 2017, the court found that Day was not validly elected at the 2016 election and ordered that a special count of South Australian ballot papers be held to determine his replacement. The court announced that Lucy Gichuhi was elected in his place. The Australian Labor Party lodged a challenge, claiming that Gichuhi might still be a citizen of Kenya, hence ineligible under Constitution section 44(i) as a citizen of a "foreign power". On 19 April 2017 a full court of the High Court found that the objection had not been made out and declared Gichuhi elected.

Senator Rodney Culleton, who had left Pauline Hanson's One Nation Party on 19 December 2016 to become an independent, had his eligibility to stand in the 2016 election challenged on two constitutional grounds. Among the grounds of ineligibility provided in Section 44, a person cannot sit in either house of the Parliament if they are bankrupt or have been convicted of a criminal offence carrying a potential prison sentence of one year or more.

Culleton was declared bankrupt by the Federal Court on 23 December 2016. On 11 January 2017, after receiving an official copy of the judgment, the President of the Senate declared Culleton's seat vacant. Culleton's appeal against that judgment was dismissed by a full court of the Federal Court on 3 February 2017.

This judgment was followed later on the same day by the High Court's decision that Culleton was ineligible owing to conviction for a criminal offence carrying a potential prison sentence of one year or more. This was a decision as the Court of Disputed Returns following a reference by the Senate at the same time as with Day. It was decided that, since Culleton's liability to a two-year sentence for larceny had been in place at the time of the 2016 election, he had been ineligible for election and that this was not affected by the subsequent annulment of that conviction; the Court also held that the resulting vacancy should be filled by a countback of the ballot, in a manner to be determined by a single Justice of the Court. Following that count, on 10 March 2017 the High Court named Peter Georgiou as his replacement, returning One Nation to 4 seats.

Procedure

The Commonwealth Constitution provides the High Court with original and appellate jurisdiction, and also empowers the Commonwealth parliament to provide additional original jurisdiction. The parliament is also more specifically empowered to provide that questions of members' qualifications, of vacancies in either house and of disputed elections shall be determined otherwise than by the house in which they have arisen--which was the position inherited from the Parliament of the United Kingdom. In exercise of these powers, the Commonwealth Electoral Act 1918, which governs federal elections, provides the High Court with a jurisdiction as the federal Court of Disputed Returns.

Petition by individual or AEC

An appropriately interested person, such as a losing candidate or a person entitled to vote in that constituency, may question the result (the "return of the writ") in a federal election by a petition to the High Court as Court of Disputed Returns, normally within 40 days of the result. A petition can also be filed by the Australian Electoral Commission. The High Court may hear the whole case itself or may delegate factual questions for determination by the Federal Court; the High Court itself will determine the validity of a candidate's election or of the whole of that particular election, including issues of constitutional interpretation. The admissible grounds for a petition are generally at the Court's discretion but include corruption and do not extend to administrative errors that have not affected the result. The Court can compel production of documents and attendance of witnesses, and can examine witnesses on oath. However, the Court "must make its decision on a petition as quickly as is reasonable in the circumstances", it is not bound by strict rules of evidence, and all of its decisions "shall be final and conclusive and without appeal, and shall not be questioned in any way" (thus there is no recourse to the High Court in its other capacities or to the Parliament).

A decision of the Court of Disputed Returns may be made by a single judge, but an issue of constitutional interpretation is likely to be made by the Full Court. If the complaint is upheld, the decision and its effect will be one of the following:

(i) If any person returned is declared not to have been duly elected, the person shall cease to be a Senator or Member of the House of Representatives;

(ii) If any person not returned is declared to have been duly elected, the person may take his or her seat accordingly;

(iii) If any election is declared absolutely void a new election shall be held.

Costs will be as in ordinary proceedings in the High Court. The Commonwealth or any party to an unsuccessful petition may have to pay any or all of the costs.

Parliamentary reference

In addition, there may be a reference by resolution of either house of the parliament on "[a]ny question respecting the qualifications of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament". The reference (commonly termed a referral ) is communicated to the Court by, as appropriate, the Speaker of the House of Representatives or the President of the Senate. There is no time limit, but in other respects the procedure is the same as with a petition, although the Court may also allow or request other persons to be heard. The Court is empowered to declare:

(a) that any person was not qualified to be a Senator or a Member of the House of Representatives;

(b) that any person was not capable of being chosen or of sitting as a Senator or a Member of the House of Representatives; and

(c) that there is a vacancy in the Senate or in the House of Representatives.

In practice, the references request the Court to determine how a vacancy so arising should be filled. The full Court may order a countback and appoint one member of the Court to supervise the process and confirm the result.

In the current cases, Chief Justice Kiefel has expressed some doubt as to whether special counts would be appropriate, given the time that has elapsed since the members concerned were elected back in July 2016. In addition, a number of the candidates most likely to succeed in any potential special counts might be disqualified by other parts of s 44. A possible alternative raised by some is to have special Senate elections in the four affected States.

Common informer action

Section 46 of the Constitution allows any member of the public to sue a member of the Parliament for a penalty of one hundred pounds (a very large sum in 1901) for every day on which they sit while disqualified, until the Parliament otherwise provides. The Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) has now provided otherwise, fixing the penalty at a total of $200 for any parliamentarian who has sat while ineligible in the past 12 months and $200 per sitting day after the suit is instituted. It was uncertain whether the procedure could be used without a prior finding of disqualification by the Court of Disputed Returns or the relevant House. The question was the subject of a referral to the Full Court of the High Court in the matter Alley v Gillespie, heard on 12 December 2017. The Full Court determined that the mechanism could only be invoked after a prior finding of ineligibility by the House of Representatives or the Senate (depending on which house the affected person was a member of), or by the High Court sitting as the Court of Disputed Returns under Part XXII of the Commonwealth Act 1918 (Cth) following a petition or referral.

Maps 2017-18 Australian parliamentary eligibility crisis

Timeline

Late June 2017 - John Cameron, a barrister from Perth, applies to the New Zealand Department of Internal Affairs to search the register of New Zealand citizens, intending to confirm whether co-deputy leader of the Greens Scott Ludlam and founder of the Justice Party Derryn Hinch, both incumbent Australian Senators who were born in New Zealand, had renounced their New Zealand citizenships as required under s 44(i) of the Constitution.

7 July 2017 - Having discovered that Ludlam, unlike Hinch, had not renounced his New Zealand citizenship, Cameron notifies Ludlam after also informing the Clerk of the Australian Senate.

14 July 2017 - Ludlam resigns after being informed that he still held New Zealand citizenship from his birth in New Zealand. Ludlam had settled in Australia with his family aged eight, and had previously assumed he lost his New Zealand citizenship when he naturalised as an Australian citizen in his mid-teens. Several foreign-born parliamentarians begin releasing confirmation of their renunciations of dual citizenship, most notably former Prime Minister Tony Abbott.

18 July 2017 - Ludlam's fellow co-deputy leader of the Greens, Senator Larissa Waters, resigns after similarly discovering that she held Canadian citizenship, after Ludlam's resignation prompted her to review her own status. Waters was born in Canada to Australian parents who were briefly living there, but the family returned to Australia while Waters was still a baby. She had previously believed that she would have needed to take active steps before age 21 to become a Canadian citizen, but discovered that she had in fact held Canadian citizenship by birth.

25 July 2017 - Liberal National Party Senator Matthew Canavan resigns as Minister for Resources and Northern Australia over doubts as to his eligibility to be a member of the parliament, after discovering that he was considered by the Italian authorities to be a citizen of Italy. Canavan's mother had registered him as an Italian resident abroad with the Italian consulate in Brisbane in 2006. Canavan stated he was unaware of this until his mother was prompted to inform him following news of the resignation of two Greens senators holding dual citizenship. The government took the view that he is not in breach of the Constitution as the registration was not made with Canavan's knowledge or consent.

8 August 2017 - Senate refers Ludlam, Waters, and Canavan to High Court as Court of Disputed Returns. Canavan states that he would not be voting in Senate until High Court decision. BuzzFeed reports that One Nation Senator Malcolm Roberts, who was born in India of an Australian mother and a British father, was a British citizen at the age of 19. Roberts states that he had only ever been an Australian and that, in case he had ever held British citizenship, before the 2016 election he had taken reasonable steps to renounce it.

9 August 2017 - Senate refers Roberts to High Court.

14 August 2017 - Deputy Prime Minister and leader of the National Party Barnaby Joyce MP announces that the New Zealand government had informed him that he might be a citizen of New Zealand by descent from his father. House of Representatives refers Joyce to High Court. Prime Minister Malcolm Turnbull states that legal advice from the Solicitor-General confirms Joyce's eligibility, but refuses to release that advice or to say how it may have distinguished Joyce's position from that of Canavan. Joyce does not resign from his ministerial offices and continues to vote in Parliament. The Leader of the House, Christopher Pyne, names Labor members Justine Keay, Susan Lamb, Brendan O'Connor, Maria Vamvakinou and Tony Zappia whose positions under s 44(i), he claims, require explanation and suggests that there are "many more" among the Opposition.

17 August 2017 - Deputy leader of the National Party and Senator Fiona Nash reveals that she has British citizenship by descent through her Scottish father. She elects not to step down from leadership or cabinet until the High Court hands down a ruling.

19 August 2017 - Nick Xenophon Team leader and Senator Nick Xenophon announces that British authorities had confirmed that he is a British Overseas citizen, a lesser form of British nationality. His father was born in Cyprus when it was a British colony and possessed a British passport, with Senator Xenophon inheriting the citizenship from his father. He chose not to resign from the Parliament in anticipation of the High Court decision. While Xenophon had made efforts to renounce any Greek or Cypriot citizenship he may have had, he was not aware that he might possess a form of British nationality until a journalist contacted him a few days prior, prompting him to seek clarification from British authorities.

24 August 2017 - A directions hearing takes place in the High Court sitting as the Court of Disputed Returns for the cases of Joyce, Canavan, Roberts, Ludlam and Waters. The government requests that these cases be heard by the Full Court in early September, but the Court schedules them to be heard over three days from 10 October.

4 September 2017 - Senate refers the matters of Nash and Xenophon to the High Court as the Court of Disputed Returns.

27 October 2017 - High Court hands down its judgment in Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon. Ludlam, Waters, Roberts, Joyce, and Nash are all ruled ineligible to have been elected. A writ for a by-election in Joyce's former seat of New England is issued for 2 December.

31 October 2017 - Liberal Senator and President of the Senate Stephen Parry reveals that he is enquiring whether he holds British citizenship through his father, who was born in the United Kingdom. On 1 November, Parry announces that he had received confirmation that he held British citizenship, and that he would resign the next day, which he did.

6 November 2017 - Fairfax Media reports that Liberal MP John Alexander may have British citizenship through his father, who was born in the United Kingdom. Alexander states that he believes his father's British citizenship had been renounced before he was born, but that he would enquire about his citizenship status with British authorities.

8 November 2017 - Jacqui Lambie Network Senator Jacqui Lambie reveals that her father was born in Scotland, causing questions to be raised about her citizenship status. Lambie states that she has no concerns about her citizenship.

10 November 2017 - Results of countback for replacements for Ludlam, Waters, Roberts, and Nash announced. They are Jordon Steele-John of the Greens, Andrew Bartlett of the Greens, Fraser Anning of One Nation, and Hollie Hughes of the Liberal Party. However, High Court delays confirmation of Hughes since she might be ineligible under s 44(iv) of the Constitution as a holder of an office of profit under the Crown; following her apparent election defeat, Hughes had been appointed to the Administrative Appeals Tribunal, an office of profit under the Crown, but had resigned from the tribunal 45 minutes after Nash was found ineligible and prior to the recount.

11 November 2017 - Alexander reveals British authorities could find no evidence his father had renounced his citizenship, and announces his intention to resign.

13 November 2017 - Steele-John, Bartlett, and Anning sworn in as senators. Anning immediately resigns from One Nation to sit as an independent. Alexander officially resigns. Writs issued for a by-election in Alexander's former seat of Bennelong, scheduled for 16 December. The Coalition Government and Labor Opposition strike a deal, requiring all parliamentarians to disclose details relating to their citizenship status by 1 December or 21 days after being sworn in. The scheme is adopted on the same day by the Senate; it is to be considered by the House of Representatives when it next meets, which was to have been 27 November but will now be 4 December, so that the disclosure deadline for MPs is expected to be put back to 5 December.

14 November 2017 - Jacqui Lambie resigns, after receiving confirmation that she does hold British citizenship by descent from her father.

15 November 2017 - High Court finds Hollie Hughes ineligible to be elected to the Senate. Senate refers Parry and Lambie to High Court.

20 November 2017 - Leader of the House Christopher Pyne announces that a sitting week for the House of Representatives due on 27 November has been cancelled. Besides other implications, this would set back to 5 December the timetable agreed on 13 November for all parliamentarians to provide their citizenship details by 1 December, and leaves only one sitting day for MPs to be referred to the High Court over citizenship, if necessary, after they lodge documents and evidence of their status under the new disclosure regime. The High Court rules that, after Hughes was found ineligible, Nash's seat will be filled by a countback excluding Hughes as well.

22 November 2017 - Nick Xenophon Team Senator Skye Kakoschke-Moore announces her immediate resignation, after confirming she holds British citizenship. She is the first to be caught by the new requirement for Senators to table details of their citizenship status.

28 November 2017 - Turnbull establishes an inquiry by the Joint Standing Committee on Electoral Matters (JSCEM) into Section 44, especially s 44(i). Senate refers Kakoschke-Moore to High Court.

2 December 2017 - New England by-election is held to fill Barnaby Joyce's former seat. Joyce is re-elected with an increased majority.

4 December 2017 - Senate citizenship register is published.

5 December 2017 - House of Representatives citizenship register is published.

6 December 2017 - High Court releases the reasons for its decision that Hollie Hughes is ineligible to succeed Fiona Nash; the recount for that seat is to resume. House refers Labor MP David Feeney to the High Court as the Court of Disputed Returns and Senate refers Labor Senator Katy Gallagher. House motion to refer several other MPs, from both sides and from the cross-bench, proposed by Opposition and opposed by Government, is lost on a tied vote. The Gallagher case will test the meaning of "reasonable steps" to renounce: she is one of the members whose application to renounce foreign citizenship was submitted before nomination although its approval was not confirmed until later, in her case after the election. Senate establishes a JSCEM inquiry into possible disclosure mechanisms for parts of s 44 other than s 44(i)--to overlap with the JSCEM inquiry established by the Government on 28 November.

8 December 2017 - Directions hearings took place in the High Court sitting as the Court of Disputed Returns for the cases of Parry, Lambie, and Kakoschke-Moore. The Government-established JSCEM inquiry into Section 44 began public hearings.

16 December 2017 - John Alexander re-elected in Bennelong by-election in his former seat.

22 December 2017 - High Court declares Jim Molan duly elected to replace Senator Fiona Nash.

19 January 2018 - A directions hearing took place in the High Court sitting as the Court of Disputed Returns for the cases of David Feeney and Katy Gallagher, and was adjourned due to lack of availability of constitutional experts.

1 February 2018 - Feeney resigns, having been unable to find documentation proving his dual citizenship was renounced. He did not re-contest the Division of Batman in the resultant by-election.

6 February 2018 - Report of Senate-established JSCEM inquiry into possible disclosure mechanisms for parts of s 44 other than s 44(i).

6 February 2018 - High Court finds that Steve Martin is not ineligible to be elected and orders that the recount for a successor to Jacqui Lambie proceed with Martin included; the Court published its reasons on 14 March 2018.

14 March 2018 - High Court hears case of Katy Gallagher, judgment reserved.

21 March 2018 - High Court publishes its reasons in the case of Skye Kakoschke-Moore.

21 March 2018 - High Court decides, in the case of David Gillespie, that the Common Informers Act does not give it jurisdiction to decide on eligibility; that is a question for parliament, with possible referral to the High Court.

23 March 2018 - Report due from Government-established JSCEM inquiry, regarding s 44(i)--not yet reported.

29 March 2018 - Six disqualified members excused all liability for expenses, including salary and staff, incurred while not qualified; expenses of five more recently disqualified members still to be considered.

30 June 2018 - Report due from Government-established JSCEM inquiry, regarding parts of s 44 other than s 44(i).

src: assets.bwbx.io

Overview

src: alhr.org.au

Citizenship Seven case

During 2017 several cases of possible breach of s 44(i) came to light, and in two cases (Ludlam and Waters) the member had resigned from the Parliament. All cases but one (Joyce) arose in the Senate. The cases involving Ludlam, Waters, Canavan, Roberts and Joyce were referred in August to the High Court as the Court of Disputed Returns, followed the next month by those of Nash and Xenophon; each reference, both those by the Senate and that by the House of Representatives, had all-party support.

At the hearing, the Attorney-General for Australia had argued that five of the seven parliamentarians should be exempt from disqualification, excluding Ludlam and Roberts, since they were entirely unaware of their dual citizenship. This argument was not accepted by the High Court, meaning the five parliamentarians found to have held a foreign citizenship were ineligible for election. Canavan and Xenaphon were the only two of the seven not found to have held a foreign citizenship.

Parliamentarians alleged to have dual citizenship

Scott Ludlam

Scott Ludlam had been a Greens senator for Western Australia since 1 July 2008.

On 14 July 2017, Ludlam announced that he still retained New Zealand citizenship from his birth in New Zealand. Ludlam with his family had settled in Australia aged eight, and had previously assumed he lost his New Zealand citizenship when he naturalised as an Australian citizen in his mid-teens. Since Ludlam was ultimately found to have been ineligible to be elected, his seat was filled by a countback of the 2016 federal election in Western Australia, resulting in Jordon Steele-John, the next un-elected Greens candidate on the Senate ticket in Western Australia, winning the seat. Steele-John is a 23-year-old disability rights advocate, who is Australia's youngest senator in history.

As of 8 October 2017, Ludlam has not renounced his New Zealand citizenship and has no immediate plans to return to politics.

Larissa Waters

Larissa Waters had been a Greens senator for Queensland since 1 July 2011.

The revelation of Ludlam's dual citizenship prompted Ludlam's fellow co-deputy leader of the Greens, Senator Larissa Waters, to similarly check whether she also held Canadian citizenship. On discovering that she did, she resigned on 18 July 2017, four days after Ludlam. Waters was born in Canada to Australian parents who briefly lived there. The family returned to Australia while Waters was still a baby. She had previously believed that she was solely an Australian citizen, and that if she had wished to gain Canadian citizenship she would have needed to take active steps before age 21. However, she discovered she had in fact always held Canadian citizenship by birth. Her seat has been filled by a countback, returning former Democrats leader Andrew Bartlett, who held the second position after Waters on the Greens' 2016 Senate ticket in Queensland, to the Senate.

On 8 August 2017 the Senate resolved, with all-party support, to refer the matters of Ludlam and Waters, as well as that of Matthew Canavan, to the High Court as Court of Disputed Returns.

Waters applied for renunciation of her Canadian citizenship on 27 July, which came into effect on 5 August, and intends to reenter the Senate.

Matt Canavan

Matt Canavan has been a Liberal National Party senator for Queensland since 1 July 2014, and a Minister since 18 February 2016.

On 25 July 2017, Canavan resigned from his positions of Minister for Resources and Northern Australia over doubts as to his eligibility to be a member of the parliament, after discovering that he was considered by the Italian authorities to be a citizen of Italy.

Canavan's mother had registered him as an Italian resident abroad with the Italian consulate in Brisbane in 2006. Canavan stated he was unaware of this until his mother was prompted to inform him following news of the resignation of two Greens senators holding dual citizenship. The government took the view that he is not in breach of the Constitution as the registration was not made with Canavan's knowledge or consent.

On 8 August 2017, with all-party support, the Senate referred the position of Canavan, along with the cases of Ludlam and Waters, to the High Court as Court of Disputed Returns. The Attorney-General indicated that the Commonwealth will argue, in favour of Cavanan, that s 44(i) requires a personal acknowledgement of the connection. Canavan spoke in support and stated that he would not be voting in the Senate until the High Court decision.

Canavan lodged the renunciation of his Italian citizenship on 8 August. As of 24 August, he accepted that, owing to a change in Italian law in 1983, he had been an Italian citizen since he was two years old. However, the Court has been told that Italian experts are uncertain of the effect of that change: one view is that it conferred citizenship automatically, the other that it only conferred eligibility to "activate" citizenship; on the latter view, which Canavan's counsel has proposed be preferred, Canavan has never been an Italian citizen.

Canavan expressed uncertainty over whether, if he was disqualified, he would have chosen to remain in politics. If he had been disqualified, it was expected that the seat would go to Joanna Lindgren, who lost her Senate seat when the Queensland LNP's vote share was reduced at the 2016 election.

The High Court found that Canavan's mother had registered him as an Italian resident abroad, but that this did not amount to a declaration of Italian citizenship, thus Canavan was not disqualified.

Malcolm Roberts

Malcolm Roberts was born in India of an Australian mother and a British father. Roberts is an Australian citizen, and on 8 August 2017 documents were revealed by BuzzFeed indicating that Roberts was a British citizen at the age of 19. Roberts released a statutory declaration stating that he was only a citizen of Australia. A spokesperson for Roberts stated that Roberts was "choosing to believe that he was never British". Doubts persisted about the status of Roberts' Indian citizenship after it was argued in the media that under a precedent set by the Supreme Court of India, he continued to be a 'presumed citizen' of the country.

On 9 August the Senate, with all-party support, referred Roberts' position to the High Court as Court of Disputed Returns. The reference was moved by Roberts's party leader Pauline Hanson, with his support. He did not respond to a question in the Senate whether he would be voting before the Court's decision.

Justice Patrick Keane conducted a hearing to determine factual issues on 21 September. Roberts and his sister Barbara were cross examined as well as two expert witnesses on British citizenship. The following day, Keane handed down his findings on that evidence, finding that at the date of his nomination for the Senate (1) Roberts was a British citizen, (2) he knew that there was at least a real and substantial prospect that he was a British citizen and (3) Roberts could have, but didn't, take steps to renounce his British citizenship.

Roberts's seat was filled by a countback, which led to his replacement by the third candidate on the Queensland One Nation ticket, Fraser Anning. Despite concerns that Anning would also be ineligible due to bankruptcy, in a similar case to One Nation's Rod Culleton, the bankruptcy petition against him had been withdrawn by 3 October. After he was sworn in, Anning resigned or was expelled from One Nation and opted to sit as an independent.

After learning of his disqualification on 27 October, Roberts announced that he would run for the electoral district of Ipswich in the Queensland state election in November.

Barnaby Joyce

Barnaby Joyce had been a National Party member of the House of Representatives seat of New England, New South Wales since 7 September 2013. Previously, he was a senator for Queensland from 1 July 2005. He has been a Minister since 18 September 2013, and Deputy Prime Minister since 18 February 2016.

On 14 August 2017, Joyce announced that the New Zealand government had informed him that he might be a citizen of New Zealand by descent from his father, saying that he was "shocked to receive this information". At his request, the government moved in the House of Representatives that Joyce's position be referred to the High Court as the Court of Disputed Returns, which was carried with all-party support. Prime Minister Malcolm Turnbull stated that legal advice from the Solicitor-General confirmed Joyce's eligibility, but refused to release that advice or to say how it may have distinguished Joyce's position from that of Canavan.

Joyce renounced his New Zealand citizenship effective 15 August and produced documentary evidence of having done so. He did not resign from his ministerial offices and continued to vote in Parliament. Leading experts on constitutional law did not share the government's confidence about Joyce's eligibility.

The High Court permitted Tony Windsor, the independent former MP who was defeated by Joyce for the Division of New England in the 2016 general election, to be joined as a "contradictor" in the eligibility case. Windsor's lawyers, including former Solicitor-General Justin Gleeson, argued against the Attorney-General's defence of ignorance of dual citizenship. Windsor expressed interest in running against Joyce in a resultant New England by-election, although the then-Deputy Prime Minister held the seat by a comfortable margin and his re-election was considered likely. After the High Court's decision was handed down on 27 October, Windsor declared that he would not run in the resulting by-election.

In the by-election on 2 December 2017, Joyce was re-elected with almost two thirds of the vote and an increased majority; he took his seat on 6 December.

Fiona Nash

Fiona Nash had been a National Party senator for New South Wales since 1 July 2005, and a Minister since 21 September 2015.

Three days after the announcement from Nationals leader Joyce, on 17 August 2017, Nationals deputy leader and Senator, Nash revealed that she had British citizenship by descent through her Scottish father. She elected not to step down from leadership or cabinet while she was referred to the High Court. By 27 August, Nash had renounced her British citizenship, but on 4 September the Senate referred her case to the High Court. On 27 October, in the Citizenship Seven Case, the High Court found that, as a foreign citizen, Nash had not been eligible to nominate; the replacements for all members declared to be disqualified would be determined by a recount.

When the other replacement senators were appointed on 10 November 2017, there was no replacement for Nash. The recount had indicated that Hollie Hughes should be declared elected and the Attorney-General had asked the High Court to so declare, but Hughes had then notified the Court that there was now a question over her eligibility. After the election, the Attorney-General had appointed defeated candidate Hughes to the federal Administrative Appeals Tribunal; it was not disputed that this was an office of profit under the Crown, which would disqualify Hughes under section 44(iv) of the Constitution, and Hughes had resigned from it immediately after the Citizenship Seven decision, hoping that she would then be eligible in the recount. On 15 November the High Court heard submissions on this issue and declared Hughes to be ineligible, reserving its reasons. The reasons were given on 6 December. The Court unanimously found that the words "incapable of being chosen" in section 44 refer to the whole "process of being chosen", the "end-point" of which is a declaration that a candidate has been elected, and a declaration as to this seat was now pending. A candidate had to be eligible throughout the process; Hughes had been ineligible during part of the process, owing to her tribunal appointment, and therefore could not be declared elected. The recount that was ordered in the Citizenship Seven Case will now be resumed with regard to this seat, this time excluding both Nash and Hughes.

The resumed recount is likely to result in the election of Jim Molan. While Nash is a member of the National Party, Molan (like Hughes) is a member of the Liberal Party, due to the Liberal and National Parties running a joint New South Wales Senate ticket. If Molan were to be elected, this would alter the representation balance of the two parties within the coalition. However, the potential effect of a recount has been put in doubt in terms of the rotation of Senators under Section 13 of the Constitution; argument will continue in the High Court on 22 December.

Nick Xenophon

Nick Xenophon is the leader of the Nick Xenophon Team and had been a Senator for South Australia since 1 July 2008.

In August 2017, he was asked whether he might have acquired Greek citizenship through his mother, born in Greece, and British or Cypriot nationality through his father, an ethnic Greek who was born in Cyprus when it was a British colony and who possessed a British passport. He stated: "I've never had, never sought, never received citizenship of another country but out of an abundance of caution I wrote to the Greek embassy and Cypriot high commission saying essentially, 'I've never been a citizen, I don't want to be, so if there's any question that I could be, I renounce any rights to be'. I don't know what else I can do in the circumstances." He added that he had not received replies to these enquiries. Later he said he had renounced Greek citizenship but, on finding he might be British, he had sought clarification from British authorities. On 19 August, he announced that British authorities had confirmed he is a British Overseas citizen, a lesser form of British nationality. He stated that he would not resign from the Parliament, but would await a High Court decision. Together with that of Nash, Xenophon's case was referred to the Court on 4 September.

On 6 October 2017, Xenophon announced he would resign from the Senate to stand for the Parliament of South Australia at the South Australian state election due in March 2018. He did not name a date of resignation, although he did state his intention to remain in federal parliament until the High Court ruled on whether he had been validly elected.

The High Court ruled that Xenophon's status as a British Overseas citizen did not fall within s 44(i), so that he had been validly elected. His resignation would create a casual vacancy, which would be filled in the usual way.

Judgment

In Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon (the "Citizenship Seven Case"), the High Court sat as the Court of Disputed Returns to determine the eligibility of seven parliamentarians to have been elected and to sit.

Because of the political implications of the outcome of the case, the Court's decision was intensely anticipated. In the preliminary hearing on 12 October 2017, Chief Justice Susan Kiefel observed: "It is hardly necessary to say that the Court is aware of the need to give its answers to these references with or without reasons as soon as possible. As counsel and instructing solicitors would appreciate, it is not always possible for the Court to do so immediately."

On 27 October 2017 the High Court handed down its single joint judgment. In a unanimous judgment, the Court interpreted s 44(i) according to the "ordinary and natural meaning" of its language. On that approach, it firstly affirmed the view taken in Sykes v Cleary that the question of eligibility is to be determined with reference to the point of nomination. The Court then followed the reasoning of the majority in Sykes v Cleary. It decided that the fact of citizenship was disqualifying, regardless of whether the person knew of the citizenship or engaged in any voluntary act of acquisition. It emphasised that to hold otherwise would introduce an element of subjectivity that "would be inimical to the stability of representative government". It followed that each of Joyce, Ludlam, Nash, Roberts and Waters had been ineligible to be elected. However, Canavan and Xenophon had been eligible. It was determined that Canavan, under Italian law, was not a citizen of Italy. It was found that Xenophon was a British Overseas citizen, but that this did not give him the right to enter or reside in the United Kingdom; therefore, for the purposes of s 44(i), he was neither a citizen nor entitled to the rights and privileges of a citizen of the United Kingdom. The Court declared the seats of the ineligible members to be vacant; it ordered that the vacancy in the House of Representatives be filled through a by-election and that the vacancies in the Senate be filled by "special counts" (recounts or countbacks) of the ballot papers in each State, subject to supervision by a Justice of the Court.

Senate replacements

The High Court's judgment on 27 October 2017 removed Joyce, Nash and Roberts from the Parliament. Ludlam and Waters had already resigned. Two of the ousted MPs--Joyce and Nash--were members of Cabinet, requiring a rearrangement of the Second Turnbull Ministry, which took place on the same day. Canavan, who had stepped down from Cabinet pending the court's decision, returned to Cabinet upon not being found ineligible, retaking his Resources and Northern Australia portfolio which had been temporarily held by Joyce. Prime Minister Malcolm Turnbull took on Joyce's other portfolio of Agriculture and Water Resources. Nash's roles were given to Darren Chester and Mitch Fifield as acting ministers. Nigel Scullion became the parliamentary leader of the National Party, while the position of Deputy Prime Minister remained vacant. Julie Bishop, deputy leader of the Liberal Party, is to serve as acting prime minister when necessary.

The seats of the disqualified Senators were filled by countbacks of the 2016 Senate election results in their states of Western Australia, Queensland and New South Wales. The countback results were announced on 10 November: in Western Australia, the Greens' Scott Ludlam was to be replaced by the Greens' Jordon Steele-John; in Queensland, the Greens' Larissa Waters was to be replaced by former Australian Democrats leader and current Greens member Andrew Bartlett, One Nation's Malcolm Roberts was to be replaced by One Nation's Fraser Anning, and the Nationals' Fiona Nash was to be replaced by Liberal Hollie Hughes. However, the court delayed the appointment of Nationals' Fiona Nash's replacement Liberal Hollie Hughes due to concerns that Hughes may be ineligible under s 44(iv) of the Constitution as a holder of an office of profit under the Crown; Hughes was reappointed to the Administrative Appeals Tribunal - a role that would ordinarily disqualify her under that section - in the period following her apparent election defeat but resigned from the position prior to the recount. The question was whether her tenure of that office had overlapped with the process of the election.

Steele-John, Bartlett, and Anning were sworn in as senators on 13 November 2017; however, Anning immediately resigned from One Nation to sit as an independent. On 15 November, the High Court ruled that Hughes was not eligible to fill Nash's seat. Nash's seat will instead be filled by another countback excluding both Nash and Hughes, which is likely to elect Liberal Jim Molan.

Aftermath

A writ for a by-election for 2 December in Joyce's former seat of New England was issued on the same day as the High Court's judgment. Losing this seat would cause the Coalition to lose its majority. On the following day, the National Party endorsed Joyce as its candidate. Joyce was now eligible for election, having renounced his New Zealand citizenship in August 2017.

Immediately following the decision, Prime Minister Malcolm Turnbull said that the government would consider changes to section 44 through the Joint Standing Committee on Electoral Matters or changes to "electoral laws and practices to minimise the risk of candidates being in breach" of the section. On 29 October, however, Attorney-General George Brandis ruled out constitutional change, although considering changes to electoral laws. He also criticised the decision: "We were asking the High Court to look at the section in view of its purpose and history, the High Court instead took the view that the section should be read with a very strict, almost brutal literalism." However, he added that the law was now clear and that it was a "good thing" that the decision had been unanimous. All of section 44 has already been examined extensively, particularly by a Constitutional Commission in 1988 and by a parliamentary committee in 1997, but their proposals have not been pursued.

According to some legal opinions, more than 100 Turnbull government decisions are vulnerable to legal challenge as a result of Joyce and Nash's dual citizenship status, with lawyers concluding there is a high likelihood that the work the pair has done over the last year will end up before the courts, because of section 64 of the constitution, which requires ministers to be members of Parliament. The court could decide, however, that the decisions are valid because they were made by a person who was "clothed with the authority of an office".

The disqualified senators and members had collected over $9 million in base salary, ministerial bonuses and other allowances over the period that they were ineligible to sit. The government could demand repayment of such amounts or it can waive repayment. In Re Culleton (No 2) (2017), for example, the government demanded repayment from Rod Culleton, after he was found to have been ineligible, as "a debt to the commonwealth", and indicated it might also seek repayment of superannuation payments, other entitlements and staff payments. There is also possibility of an action being brought under s 3 of the Common Informers (Parliamentary Disqualifications) Act 1975, which provides that any person can bring an action for a penalty against a member of parliament for sitting in Parliament while disqualified from doing so. The government had undertaken to pay the legal costs of all parties and of Tony Windsor (intervening in the Joyce case). The final legal bill paid by the government was $11.6 million. In March 2018, the government waived the debt for salaries and expenses (salaries, superannuation and electorate allowances, as well as non-salary expenses, such as, staff expenses, office expenses and travel expenses) received by the six MPs who lost their jobs as a result of dual citizenship, saying that they acted "in good faith".

Amid continuing allegations that further members of the Parliament possess dual citizenship, there have been increasing calls for a "citizenship audit" of the Parliament, as well as speculations on the Prime Minister's own future. The audit proposal comes from minor parties and is opposed by the two major parties, although Labor has come to support some sort of parliamentary review. Both major parties appear to have been conducting their own internal reviews. The Greens plan to propose a select committee of the Senate, to report on the eligibility of all Senate members by 27 November, and hope that a similar committee may be established in the House or, alternatively, there could be a joint committee if not a commission of inquiry.

On 6 November, Prime Minister Turnbull proposed a set of measures under which all federal politicians would be required to publicly declare their citizenship history. The Labor Opposition had criticisms. On 13 November it was reported that the Government and the Opposition had agreed to propose what media termed a "quasi-audit", modelled on the pecuniary interests register. All members of the federal parliament will be required to disclose by 1 December their date and place of birth, citizenship at birth, and details of their parents and grandparents; if they were born overseas, details of their naturalisation as Australian citizens; and an account of how they have satisfied themselves that they are not dual citizens and what they have done to renounce any foreign ties of this kind. Failure to fully comply with the register, including provision of misleading information, may constitute "serious contempt" of Parliament (a criminal offence). This scheme was adopted on that day by the Senate and will be considered by the House of Representatives when it next meets.

The Citizenship Seven referrals to the High Court were all moved by the member's own party, consistently with parliamentary convention. On 9 November 2017, Prime Minister Turnbull threatened to break with convention and use government-party numbers to secure a referral by the House of three Labor MPs: Justine Keay, Susan Lamb and Josh Wilson. The threat was repeated by a senior minister on 12 November, despite the government having lost its majority in the House.

On 28 November 2017, Prime Minister Malcolm Turnbull asked the Commonwealth Parliament's Joint Standing Committee on Electoral Matters (JSCEM) to conduct a new inquiry into the section, including the possibility of amendment. Public hearings will begin on 8 December; the Committee is to report on s 44(i) by 23 March 2018 and on the other sub-sections, particularly 44(iv) and 44(v), by 30 June. On 6 December 2017, the Senate asked the JSCEM to inquire into recent referrals to the High Court as Court of Disputed Returns, with a view to establishing a disclosure mechanism for the other parts of s 44, with particular attention to the cases of Culleton and Day. Submissions are due by 22 December and the Committee is to report by 6 February 2018.

src: cdn4.i-scmp.com

Other MPs and Senators who have resigned

Stephen Parry

Stephen Parry had been a Liberal senator for Tasmania since 1 July 2005, and President of the Senate since 7 July 2014. Following the High Court's judgment in the Citizenship Seven case, Parry announced on 31 October 2017 that he was seeking advice from British authorities on whether he held British citizenship by descent. Parry's father moved to Australia from the United Kingdom in the 1950s. On 1 November, Parry confirmed his dual citizenship, and resigned on 2 November.

Although a casual vacancy caused by resignation would normally be filled through a party appointment, a resignation in these circumstances is subsumed by the eligibility issue, and his position will be filled by a recount if the High Court formally finds he was ineligible to have been elected. In that case, former senator Richard Colbeck is expected to be elected by recount.

It has been reported that Parry became aware of his possible dual citizenship status following the revelations involving Fiona Nash in August 2017, and had discussed the matter with cabinet member Mitch Fifield months earlier, who advised him not to raise those concerns publicly due to the belief that both Canavan and Joyce would be found to be eligible. Fifield was referred to the privileges committee in relation to this. On 2 November, Prime Minister and Liberal Party leader Malcolm Turnbull said that he was "disappointed" that Parry had not made the matter known "quite some time ago" to allow his election to be referred to the court simultaneously with the previous seven cases.

The Senate referred Parry's case to the High Court as the Court of Disputed Returns. A directions hearing on 8 December determined that Parry was disqualified from standing at the 2016 election and that the Senate vacancy should be filled by a special count of the 2016 votes. The countback took place on 12 December 2017. Parry's senate position was filled by Richard Colbeck, who was sworn in on 12 February 2018.

John Alexander

On 6 November, Fairfax Media reported that Liberal MP John Alexander might hold British citizenship by descent, through his British-born father who migrated from the United Kingdom to Australia in 1911 at the age of three. Alexander stated that he believed his father's British citizenship had been renounced before he was born, but that he was making enquiries about his citizenship status with British authorities. Meanwhile, the federal Opposition accused the government of a "protection racket" and called for Alexander's case to be referred to the High Court.

On 11 November, Alexander announced that British authorities could not find any record of renunciation by his father and indicated his intention to resign. On 13 November, Alexander resigned and the by-election was called for 16 December, the earliest date possible. Alexander immediately filed papers with the UK Home Office to renounce British citizenship and on 17 November claimed that the application had been approved, making him eligible to stand in the by-election. The seat of Bennelong was then won by John Alexander at the by-election.

Jacqui Lambie

On 8 November 2017, it was reported that independent Senator Jacqui Lambie may have British citizenship by descent from her father, who migrated from Scotland to Australia as an infant. Lambie had initially said she had "no concerns" about the possibility of her being a dual citizen, with a spokeswoman stating that Lambie would provide any relevant supporting documents when required to by Parliament. However, she sought advice from British authorities.

On 14 November 2017, Lambie announced her resignation from the Senate after confirming she held British citizenship, and the Senate referred her case to the High Court as the Court of Disputed Returns on the same day. A directions hearing on 8 December determined that Lambie was disqualified from standing at the 2016 election and that the Senate vacancy should be filled by a special count of the 2016 votes. The countback took place on 12 December 2017. The Electoral Office indicated that Steven Martin would be elected on a countback, and Martin was sworn in on 12 February 2018. However, Martin was the Mayor and Councillor of Devonport City Council, and the question of whether this disqualifies him from serving as a senator by reason of s 44(iv) of the Constitution (holding an office of profit under the Crown) was referred to the Full Court on 13 December 2017. On 6 February 2018 the Full Court determined that Martin was not ineligible; it published its reasons on 14 March 2018.

Skye Kakoschke-Moore

Nick Xenophon Team (NXT) Senator Skye Kakoschke-Moore resigned from the Senate on 22 November 2017, after discovering that she was a British citizen by descent from her mother, who was born in Singapore while it was a British colony and had registered for right of abode in the UK. Kakoschke-Moore had been a British citizen since birth in 1985, but stated that when she was 12, the British embassy in Oman had told her father she was not eligible for a British passport. Kakoschke-Moore's renunciation of her British citizenship became effective on 6 December 2017.

The Senate referred Kakoschke-Moore's case to the High Court as the Court of Disputed Returns on 29 November 2017. Kakoschke-Moore sought to be reinstated in the seat on the basis that she had by then effectively renounced British citizenship, but the Court held that "the fact that Skye Kakoschke-Moore renounced her British citizenship with effect from 6 December 2017 does not render her capable of now being chosen to fill that vacancy", and that the vacancy should be filled by a special count of the votes. Kakoschke-Moore and Timothy Storer had both been nominated for the 2016 election for the Senate for South Australia as nominees of NXT. However, since the election Storer had ceased to be a member of NXT by 6 November 2017, and the question of whether Storer should be excluded from the special count for that reason was referred to the Full Court, which on 13 February 2018 ruled that Storer was not to be excluded from the countback, and who assumed the seat on 16 February 2018. The Court published its reasons on 21 March 2018.

David Feeney

Labor MP for Batman David Feeney stated in the citizenship register that his father was born in Northern Ireland, and that he was advised by the party to ensure he renounced British (and potentially Irish) citizenship before nominating. Feeney said he did so in late 2007, but conceded he was unable to produce documentation confirming the renunciation had been registered.

The House of Representatives referred Feeney's case to the High Court as the Court of Disputed Returns. During a directions hearing on 19 January 2018, Feeney was unable to submit evidence of his renunciation of citizenship, delaying court proceedings. His legal representative submitted that Feeney's renunciation was lodged, but was not registered by British authorities "[f]or some reason". On 1 February 2018, before any further court proceedings, Feeney announced his resignation from the House of Representatives, and confirmed that he had been unable to find documentation proving his renunciation of British citizenship.

On 23 February 2018, the Court held that Fenney had been ineligible to be elected by virtue of s.44(i) and that the vacancy is to be filled by a by-election. A by-election had already been called for 17 March 2018. Feeney did not re-contest the seat in the by-election, which was contested by Ged Kearney for the Labor party. Labor only narrowly won the suburban Melbourne electorate of Batman with Feeney in 2016, facing strong competition and losing the first-preference vote to the Greens' Alex Bhathal. Greens leader Richard Di Natale stated on the same day as Feeney's resignation that Bhathal will run again in the Batman by-election. Kearney won the 2018 by-election with a 3.6% swing towards Labor, in the absence of a Liberal candidate.

src: alhr.org.au

Other MPs and Senators whose status is to be determined

In response to the revelations, concerns have been raised regarding the citizenship status of a number of other MPs and Senators.

British citizenship concerns

It has been suggested that several parliamentarians, including members of both major parties, may be ineligible because they hold British citizenship by descent from a British parent or parents. Both the United Kingdom and Australia permit dual citizenship.

The High Court held in Sue v Hill that at least since 1986 (the passing of the Australia Act) the United Kingdom has been a "foreign power" within the meaning of s 44(i).

Since the High Court's ruling, four members, Stephen Parry, John Alexander, Jacqui Lambie and Skye Kakoschke-Moore, have accepted that they were British and have resigned.

In some cases, the member states that an application to renounce British citizenship was made before nomination, although it did not take effect (or may not have taken effect) until after the nomination date or even after the election. The 1992 High Court decision in Sykes v Cleary, confirmed in 2017 in Re Canavan, established that candidates for either house of the federal parliament are required to meet the constitutional requirements at the time of nomination; they may be excused if they have "taken reasonable steps" to renounce a foreign nationality, although what will be "reasonable steps" will depend on the individual circumstances. It remains unclear whether it is sufficient to have submitted a renunciation application before nominations close or whether the application must have been approved and become effective.

According to a legal opinion of David Bennett QC, a former Commonwealth Solicitor-General, commissioned by the Liberal Party and being used by Turnbull and others in the government, Keay, Lamb and Sharkie are ineligible under the High Court ruling because on the nomination date they were also British citizens.

The Court said in its Citizenship Seven judgment (emphases added):

A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.

Katy Gallagher

Labor Senator Katy Gallagher's mother was a British citizen born in Ecuador to British parents. Gallagher first entered Parliament on 25 March 2015, following a casual Senate vacancy for the Australian Capital Territory. She filed UK citizenship renunciation papers with the UK Home Office on 20 April 2016, in the lead-up to the federal election in 2016, which took place on 2 July. The UK Home Office accepted her payment as part of the application on 6 May; however, on 1 July, it requested original copies of her birth certificate and her parents' marriage certificate as part of her renunciation, which Gallagher provided on 20 July. The renunciation of her British citizenship was effective on 16 August 2016. On 6 December 2017, at Gallagher's request the Senate referred her case to the High Court.

Gallagher's declaration that she did not hold foreign citizenship when the Australian Capital Territory Legislative Assembly nominated her to a casual vacancy in the Senate in 2015 will be considered by an Assembly inquiry into its Senate nomination processes, announced on 30 November 2017.

The Senate referred Gallagher's case to the High Court as the Court of Disputed Returns. Her case was considered along with Feeney's during the directions hearing on 19 January 2018. Disagreement and limited availability of relevant experts prevented conclusions from being reached. The Attorney-General has argued that Gallagher did not take all reasonable steps to renounce her citizenship. As at 29 March 2018, the Court had not yet handed down its verdict.

Justine Keay

Labor MP Justine Keay was born in Australia with British citizenship. She had been preselected by the Labor Party in 2015, but completed the UK Home Office's citizenship renunciation form on 9 May 2016, the day when the Parliament was dissolved for the 2016 federal election. The form was received by the Home Office on 31 May. Nominations for the election closed on 9 June and the election took place on 2 July. She received the British government's declaration of the renunciation on 8 July and the renunciation was registered on 11 July.

A legal opinion by David Bennett , a former Commonwealth Solicitor-General, commissioned by the Liberal Party, is that Keay is ineligible under the High Court ruling because Keay was also a British citizen at nomination date. Keay claims that she had taken "all reasonable steps" for renunciation.

Susan Lamb

Labor MP Susan Lamb, born in Australia, had received advice that she may be a British citizen by descent through her late father. On 23 May 2016, two weeks before close of nominations for the 2016 federal election, she filed a renunciation form with the UK Home Office. However, Lamb's renunciation form was refused by UK authorities as they were not satisfied that she was in fact a British citizen, and instead requested further documents as proof. Lamb claimed to have fulfilled all the requirements of section 44(i) as she believed she had taken all reasonable steps to renounce her citizenship - if it were the case that she was a British citizen - as she was unable to provide any further documents; she said she was estranged from her mother and that her father had passed away.

Rebekha Sharkie

NXT MP Rebekha Sharkie stated in July 2017 that she had renounced her UK citizenship prior to the election. She began the process to renounce her British citizenship on 19 April 2016, before the close of nominations, but the renunciation had not been registered by UK Home Office until 29 June 20 days after nominations closed, although prior to the election.

Sharkie said that in November 2017 Turnbull had advised her that a reference to the High Court might be required in relation to her possible dual-citizenship status at the close of nominations. She argues that she has taken "all steps that were required by the UK to renounce any entitlement to UK citizenship, that were within my power to do so". It has also been suggested that she may be a citizen of the United States.

Josh Wilson

Labor MP Josh Wilson applied to renounce his British citizenship on 13 May 2016, the day after his unexpected endorsement as a candidate for the 2016 election, nominations for which closed on 9 June. The renunciation was registered and effective on 24 June.

Greek citizenship concerns

It has been suggested that three Liberal parliamentarians--Julia Banks MP, Assistant Minister to the Minister for Immigration and Border Protection Alex Hawke MP, and Senator Arthur Sinodinos--could hold Greek citizenship by descent from a Greek parent or parents. Both Greece and Australia permit dual citizenship. However, all three have entered on the Citizenship Register statements from the Greek Embassy that, since their births were not registered in Greece, they are not Greek citizens; they also refer to legal advice that they are not Greek citizens nor entitled to the rights or privileges of Greek citizenship.

Other foreign allegiance concerns

Cory Bernardi

In his Citizenship Register entry, Senator Cory Bernardi states that his father and his father's parents were born in Italy. He adds that, when a child, he had asked an Italian consulate whether he was eligible for Italian citizenship and had been told that he was not, because at the time of his birth his father had been solely Australian; but no documentation of this is provided. Bernardi provides a copy of an application in 2006 to renounce Irish citizenship, which he later says he had acquired through marriage, but he has not provided a copy of a response to the application from Irish authorities.

Jason Falinski

Jason Falinski MP has stated a complex heritage, which he claims does not involve current foreign citizenship. However, his account has been questioned, with The Daily Telegraph reporting that documents from the National Archive of Australia show Falinski's paternal grandparents as being married a year prior to his father's birth - contradicting his statement in the Citizenship Register that his father was born out of wedlock. In response to these suggestions, Falinski said that his grandparents and father would have nonetheless lost their Polish citizenships per Polish law at the time upon emigrating to Australia even if this were the case.

Josh Frydenberg

On 2 November 2017, questions were raised by The Australian concerning the possibility that Liberal MP and Minister Josh Frydenberg could be a citizen of Hungary under a Hungarian law designed to prevent statelessness caused during World War II. The report claimed that the retrospective law provided that anyone who had been born within Hungary in the period 1941 to 1945 automatically became a Hungarian citizen, and citizenship in Hungary is passed down by birth right. As his mother was born in Hungary in 1943, an argument was raised that this meant Frydenberg held Hungarian citizenship. Frydenberg said that it was absurd to suggest he had involuntarily acquired Hungarian citizenship as, when his mother and other family members entered Australia in 1950, they were stateless survivors of the Holocaust. Prime Minister Turnbull and Attorney-General Brandis condemned the calls as witch hunts. Hungarian citizenship experts have since stated that such citizenship is not automatically conferred and can be restored only if the individual takes action that is "more than a formality".

Katy Gallagher

Katy Gallagher has also faced suggestions from the Daily Telegraph that she may be an Ecuadorian citizen, due to the 2008 Ecuadorian constitution which established the right of citizenship for anyone born in Ecuador, as well as their descendants even if born abroad. Gallagher has stated that the change in law in 2008 had no effect on her, as the change does not apply retrospectively to the time of her mother's birth. The ALP has said it has obtained advice from an Ecuadorian legal expert and an Australian constitutional lawyer which advised Gallagher is not an Ecuadorian citizen.

Nola Marino

On 11 November 2017, it was suggested that Liberal MP Nola Marino, Chief Government Whip in the House of Representatives, may be a citizen of Italy through marriage to an Italian citizen at a time when Italian law automatically conferred citizenship through marriage, unless her husband had renounced his Italian citizenship on becoming a naturalised Australian prior their marriage in Australia in 1972. Her husband was born in Italy in 1950, and came to Australia the next year. She might also be a citizen of the United States through her father, born in New York. She has denied being anything but an Australian, but has not provided details.

Citizenship statements by other MPs and Senators

Prior to the implementation of the parliamentary Citizenship Register, several other MPs and Senators who were born outside Australia or are known to have at least one foreign-born parent have made statements clarifying that they were not dual citizens at the time of nominating as a candidate:

• Former prime minister Tony Abbott was born in the UK and his father was a British citizen. Abbott publicly released a letter from UK Visas and Immigration confirming he renounced his British citizenship in 1993. He was first elected to Parliament in March 1994.
• Opposition leader Bill Shorten stated he had previously renounced his British citizenship acquired by descent. He later tabled in Parliament a letter from the UK Border Agency confirming he renounced his citizenship in 2006. He was first elected in December 2007.
• Labor MP Brian Mitchell, Greens Senator Nick McKim, Liberal MP Paul Fletcher and CLP Senator Nigel Scullion, all born in the UK, all stated they had previously renounced their British citizenship.
• Liberal Senator Mathias Cormann, born in Belgium, clarified that under Belgian law he automatically lost his Belgian citizenship upon acquiring Australian citizenship in 2000.
• Greens Senator Richard Di Natale stated he had renounced Italian citizenship before his election in 2010, and released a 2004 letter from the Italian General Consulte in Melbourne confirming he was not a citizen.
• Liberal MP Ian Goodenough, born in Singapore, stated that the process to renounce his Singaporean citizenship was completed in 2004.
• Greens Senator Peter Whish-Wilson, born in Singapore to Australian parents, stated that he has never held dual citizenship.
• Labor MP Tony Zappia, born in Italy, stated he lost Italian citizenship upon becoming an Australian citizen in 1958.
• Labor MP Maria Vamvakinou, born in Greece to Greek parents, stated she renounced her Greek citizenship in 2000.
• Labor stated that Deputy Opposition Leader Tanya Plibersek, born in Australia to migrants from Slovenia, does not and has never held dual citizenship.
• Labor stated that Penny Wong, born in Malaysia, renounced her Malaysian citizenship in 2001 prior to nominating for election.
• Labor Senator Sam Dastyari, born in Iran, discussed the $25,000 that he spent in legal fees to renounce his Iranian citizenship.
• Labor MP Anne Aly, born in Egypt, confirmed that she gave up her Egyptian citizenship.
• Greens Senator Jordon Steele-John, born in the UK, was elected to fill Scott Ludlam's vacancy. He confirmed he had renounced his British citizenship in 2013 to run as a candidate in that year's federal election.
• Senator Rex Patrick, born in New Zealand, was appointed to the casual vacancy caused by the resignation of Nick Xenophon. He confirmed renunciation of his New Zealand citizenship had taken place on 16 October 2017.
• NXT Senator Derryn Hinch stated he had revoked his New Zealand citizenship before nominating as a candidate. However, on 31 August he confirmed that he is entitled to a pension through US Social Security, but stated on 2 September 2017 that he would not seek a reference since the Attorney-General had advised him that he was not in breach.
• NXT MP Rebekha Sharkie said in response to suggestions that she may possess US citizenship due to her mother being born in the United States that she is not been eligible for US citizenship due to her mother leaving the US as a child and therefore not fulfilling the residency requirements for US citizenship by descent .
• One Nation Senator Pauline Hanson stated that she does not have British citizenship by descent as only her grandparents were born in the UK, with both her parents being born in Australia.
• Liberal MP Ann Sudmalis stated that the UK Home Office confirmed that she does not hold and has never held British citizenship, releasing a document received from the UK Home Office which states there is no record of her having acquired British citizenship.

src: i.guim.co.uk

Other Section 44 concerns

Section 44(iv)

Andrew Bartlett

In November 2017, Andrew Bartlett replaced Greens Senator Larissa Waters after a recount. At the time of nomination, Bartlett had been an academic employed by the Australian National University. He claimed to have legal advice that this did not disqualify him under s 44(iv) and his eligibility was not challenged at the same time as that of Hughes. However, the Commonwealth Solicitor-General has suggested that the Senate may need to refer his position to the High Court and the Greens are seeking further legal advice.

The High Court has to compare the different positions of Cleary, a public school teacher, Hughes, a member of a statutory tribunal (whose decisions are not subject to ministerial direction), and Bartlett, an academic member of a public university.

Section 44(v)

David Gillespie

A court challenge against Nationals MP and junior minister David Gillespie, to be heard by the Full High Court on 12 December, alleges a breach of the "pecuniary interest" requirement in section 44(v) of the Constitution; the Full High Court considered s 44(v) in April 2017 when finding that Senator Bob Day had been ineligible for election. The Opposition Australian Labor Party and some community groups believe that Gillespie has an indirect financial relationship with the federal government, in that he owns a suburban shopping complex in Port Macquarie with an Australia Post licensee.

The action against Gillespie was brought by former Labor candidate for Lyne, Peter Alley, under s 3 of the Common Informers (Parliamentary Disqualifications) Act 1975. The Act "otherwise provides" following section 46 of the Constitution: under the Act (which appears not to have been used before), a member of the federal Parliament who is sitting while disqualified is liable, to anybody who may sue for it in the High Court, for $200 per day of so sitting, following initiation of the action and for up to 12 months previously. During pre-trial proceedings, a question arose as to whether a common informer action can be brought against a member of parliament without a prior finding of disqualification by the Court of Disputed Returns or the relevant House of Parliament. This question was referred by Bell J to a Full Court of the High Court, with a hearing to be held on 12 December 2017. Alley is represented by leading barrister Bret Walker SC. The High Court has stated that it cannot hear the case against Gillespie because he was not referred by Parliament. To date, his eligibility has not been determined by either the House of Representatives or the Court of Disputed Returns.

Barry O'Sullivan

The media speculated that Queensland Liberal National Senator Barry O'Sullivan may have had pecuniary interests in breach of s 44(v). In the Senate on 13 November 2017, Queensland Labor Senator Murray Watt accused O'Sullivan of three breaches of s 44(v); O'Sullivan was present but did not respond.

src: alhr.org.au

New Zealand political row

A row ensued between the Australian Government and the New Zealand Labour Party after it was reported that a staff member for an Australian Labor senator had asked a New Zealand MP, Chris Hipkins, to find out whether or not the Deputy Prime Minister of Australia, Barnaby Joyce, was a citizen of that country. Australian Foreign Minister Julie Bishop accused New Zealand's Labour Party of being "involved in allegations designed to undermine the government of Australia" and Australian Prime Minister Malcolm Turnbull accused the Australian Labor Party of conspiring "with a foreign power". Bishop added that she would find it "very hard to build trust" with the New Zealand Labour Party if it formed government after that country's general election. Bishop's claim of collusion was rejected by the New Zealand Minister of Internal Affairs, Peter Dunne, as well as the New Zealand Labour Leader, Jacinda Ardern, although Ardern had initially criticised Hipkins' involvement.

Following the election of the Sixth Labour Government of New Zealand, Bishop said she looked forward to working with Prime Minister Ardern.

src: images.theconversation.com

Implications for parliamentary majority

At the 2016 federal election, the Coalition Government retained power with 76 of 150 seats, a one-seat majority. Before it was clear that the Coalition would win a majority of seats, Katter's Australian Party MP Bob Katter, independent Andrew Wilkie and independent Cathy McGowan guaranteed confidence and supply in the event of a hung parliament.

On 15 August 2017, Bob Katter announced that, in the event that Joyce's seat was declared vacant, he could not assure that he would support the Turnbull Government on confidence and supply; he stated that Turnbull would be "back to the drawing board" for his support. Additionally, Rebekha Sharkie, the sole MP in the House of Representatives for the Nick Xenophon Team, announced on 18 August that she would no longer support the Government on matters of confidence and supply, although reversed that decision on 20 August. Cathy McGowan continued to agree to maintain confidence and supply for the Turnbull Government. Andrew Wilkie stated that he "[would] not vote against budget supply or confidence unless doing so would be clearly warranted."

After Barnaby Joyce was found ineligible to sit in parliament, the government no longer had a majority of seats, but did have a majority of sitting members. With the resignation of John Alexander on 11 November, the government lost its majority in the lower house, being reduced to 74 out of 148 members. The majority was regained when Joyce won the New England by-election on 2 December.

src: alhr.org.au

Historical eligibility queries

Two early twentieth century Australian politicians may not have been Australian citizens or (as then) British subjects:

• King O'Malley: claimed to have been born in Canada, but may have been born in USA.
• Chris Watson: British mother and apparently a British father, but born onboard a ship in Chilean waters to a Chilean father.

src: cep.be.washington.edu

Reception in popular culture

• Colin Buchanan, "Not Quite Australian: a song about dual citizenship", "Thank God It's Friday!" (1 December 2017), Australian Broadcasting Corporation; parody of "I Am Australian".
• Sammy J, "The Ballad of Section 44" (8 February 2018), Australian Broadcasting Corporation.

src: alhr.org.au

See also

• The natural-born-citizen clause--a similar clause in the US constitution, which has also been contested.

src: www.thenational.ae

Notes

src: alhr.org.au

References

src: cdn2.i-scmp.com

External links

• Citizenship Register--House of Representatives
• Citizenship Register--Senate

Source of article : Wikipedia