The citizenship provision of the Constitution’s section 44 has raised its head again, with the eligibility of Treasurer Josh Frydenberg being challenged by an elector in his Kooyong seat.
Michaal Staindl has filed a petition with the High Court, which sits as the Court of Disputed Returns, alleging Frydenberg is ineligible “because he is a citizen of the Republic of Hungary”.
The petition says
The respondent’s mother arrived in Australia in 1950 in possession of a valid passport, inferred to be a valid Hungarian passport. This indicates that she continued to be a citizen of Hungary after 1948.
Pursuant to the law of Hungary, all children born to the respondent’s mother are a citizen of Hungary from the time of their birth and in the premise, the respondent is a citizen of Hungary
Staindl told Guardian Australia he was pursuing the action against Frydenberg, whom he knew, because “he’s consistently betrayed me, the electorate and the country on climate change”.
The Guardian reported that Staindl “said if Frydenberg shows evidence he is not Hungarian he could drop the case”; otherwise, he said, he would “see it through”.
Under Section 44, a person cannot sit in the federal parliament if he or she 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”.
In his “statement of member’s qualifications relating to section 44 and 45 of the constitution”, posted on Wednesday, Frydenberg records that his mother – who arrived in Australia as a refugee – was a Hungarian citizen between 1943 and 1948.
Frydenberg said “I have clear legal advice that I do not hold citizenship of another country.”
Section 44, which has several prohibitions, cut a swathe through the last parliament, overwhelmingly on citizenship grounds, hitting Coalition, Labor, and crossbench parliamentarians and triggering multiple byelections.
Although Frydenberg’s situation was canvassed during the previous term Labor backed off, given his mother had escaped the Holocaust.
Frydenberg, in comments in the last term, said his mother had arrived stateless. “It is absolutely absurd to think that I could involuntarily acquire Hungarian citizenship by rule of a country that rendered my mother stateless,” he said then.
Separately, Frydenberg’s eligibility is being challenged under the Electoral Act over Liberal party Chinese-language signs. This challenge is being brought by Oliver Yates, who ran as an independent against Frydenberg. It is claimed the signs were likely to have misled voters into thinking that to cast a valid vote they had to put the figure 1 beside the Liberal candidate.
A similar challenge over Chinese-language signs has been brought by a Chisholm voter against the new Liberal MP for Chisholm, Gladys Liu.
The ALP is not involved in the challenges.
The ALP’s acting national secretary Paul Erickson said in a statement that Labor was “disappointed by the tactics employed by the Liberal Party at the election, which went well beyond the accepted bounds of a vigorously contested campaign – especially in the divisions of Chisholm and Kooyong.
“The Chinese-language signs used by the Liberal Party in those contests were clearly designed to look like official Australian Electoral Commission voting instructions using the AEC colours, for the clear purpose of misleading Mandarin and Cantonese-speaking voters into voting for the Liberal Party,” he said.
But while there was a strong case that the signs breached the Electoral Act Labor was not seeking to overturn the results in Chisholm and Kooyong, given the cost and time involved, Erickson said.
Despite all the attention given to this matter over the last couple of years, and the various procedures introduced to address it, Section 44 will only continue to be a problem until the parliament steps in to address it.
To do that, we first need to address seven myths about Section 44.
1. Everyone knows their citizenship, they just need to do their paperwork
Section 44 is about more than just citizenship – it covers a variety of restrictions on who can serve in parliament.
For instance, a GP who bulk-bills a patient could be considered to have a “pecuniary interest in an agreement with the Commonwealth.” And a postman or a nurse in a public hospital could be deemed to hold “an office of profit under the Crown.”
On citizenship, the section doesn’t just disqualify dual citizens, it also bars those “entitled” to citizenship elsewhere (even if they haven’t applied for it) and those “entitled to the rights and privileges” of citizenship (basically, the “right of abode”, or being entitled to enter a country and live there).
Such entitlements are not easy to discover and almost impossible to remove, because they’re embedded in foreign legislation.
As a result, the Australian parliament becomes even less representative of the Australian people.
3. The constitution framers knew what they were doing
The original text agreed to at the constitutional convention in 1898 simply said anyone who had acquired foreign citizenship by their own act was disqualified from standing for parliament.
The text that eventually became Section 44 was inserted surreptitiously by one of the key architects of the constitution (and Australia’s first prime minister), Edmund Barton, as a drafting amendment. He introduced 400 amendments on the second-to-last day of the convention, but made no mention of this change, and expressly denied there had been any changes to Section 44 apart from a minor one to another subsection.
And when the court has heard a case, it has construed its task so narrowly as to give little guidance to future action on the section. In particular, it has said nothing about the disqualification of those MPs “entitled to the rights and privileges of citizenship” in other countries.
In fact, when Senator Matthew Canavan’s eligibility was challenged because Italian laws had changed to permit citizenship to descendents of native Italians, the High Court noted that the law was fairly generous, but one had to apply. Canavan hadn’t applied, therefore couldn’t be an Italian citizen.
But if he had applied and then received Italian citizenship because he was eligible (as his brother had done), he would have been disqualified by Section 44.
This was all too much for the court to sort out. As a result, it offered no clarity on the large number of MPs whose eligibility hangs on what sorts of “entitlement” would disqualify them.
5. But there are administrative checks now, too
Well, yes, but nobody does anything about them. In 2017, all MPs were asked to fill out a form documenting their ancestry and citizenship, and the responses were then logged in a citizenship register. This showed some 15-20 MPs were entitled to foreign citizenship and a total of 59 had the “right of abode” in the UK, which the High Court has decided is the key to the “right and privilege” of citizenship.
But no action was taken on any of these cases. The register appears as a matter of record only.
Similarly, although the Australian Electoral Commission is now requiring candidates to complete a similar form, it does not take action against those who refuse to submit it, or leave sections blank. One candidate was referred to the police, but this was clearly a pointless face-saving exercise.
6. We want our MPs to be unequivocally Australian
Having foreign ancestry does not make you un-Australian. Section 44 does nothing to establish the strength of identity or loyalty – it simply prevents an undefined, but potentially very large, slice of the population from standing for parliament.
One case illustrates the ludicrous reach of the present wording.
After Lithuania regained its independence in 1990, it passed a citizenship law that gave people born outside the country to Lithuanian parents the right to citizenship. In 2016, this provision was expanded to cover those with Lithuanian grandparents. As a result, Senator Doug Cameron, whose Scottish burr we are used to hearing on news broadcasts, became eligible for Lithuanian citizenship.
While Cameron could (and did) renounce his British citizenship to qualify for election to the Australian parliament, he cannot renounce his entitlement to Lithuanian citizenship. And while some people have very strong views about Cameron, I have never heard it suggested he was working to a Lithuanian agenda rather than an Australian one.
7. It’s too hard to change the Constitution
The same thing was said about amending the Marriage Act to permit same-sex couples to marry. The public recognises there’s a problem with Section 44 and it expects the politicians to fix it.
The best shot came with the Joint Standing Committee on Electoral Matters, which recommended adding the words “until the parliament otherwise provides” to Section 44. This would not change the law, just where the law is made.
Instead of disqualifications being defined by the laws in foreign countries, as the High Court has interpreted Section 44, they could be determined by the Australian parliament. This is how qualifications of senators and members are currently decided. It’s also how women got the vote in 1902.
If this proposal was strongly supported by all the parties and clearly explained to the electorate, it would likely pass in the next election.
So where does this leave us?
It all comes down to leadership. Up to now, both the Coalition and Labor have been primarily motivated by partisan advantage: how can we use Section 44 to score a political point?
The Joint Standing Committee showed that with a willingness to collaborate, there is a path forward to solving the problem. The best we can hope for is that after the trauma of the last few years, and the evidence of the continuing decline in support for the main parties, political leaders will see that acting constructively on Section 44 might actually be in the best interests of both parties.
The fact the Victorian Liberals are having to change candidates in three seats draws attention to an issue that should be properly fixed but won’t be any time soon – the problem of section 44 of the constitution.
The candidates who’ve fallen over were to run in seats where the Liberals don’t have a chance – Wills, Lalor and Cooper (formerly Batman) – so it’s of no particular political importance that they have to be replaced. Another three flag carriers can be rustled up before nominations close.
But we are reminded of how lethal section 44 has been and how, even now, a major party can have trouble ensuring all the relevant checks have been done.
Some 17 members of the last parliament fell victim to the section – 15 in relation to citizenship, in what was a highly disruptive running crisis. This amounted to 13% of the Senate and 4.6% of the House of Representatives. There were seven byelections.
Section 44 disqualifies anyone from being a candidates if he or she
“(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: or
(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
(iii) is an undischarged bankrupt or insolvent: or
(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons.”
Of the three Liberal candidates in the news two had citizenship issues and one is an Australia Post employee.
Obviously lessons have been learned and actions taken to avoid the appalling ructions of the last parliament.
The parties are working much harder at checking – although you have to wonder how efficient minor parties like One Nation will be.
Also, as part of the nomination form submitted to the Australian Electoral Commission, candidates must now fill in detailed questions on Section 44 matters. If they have been a citizen of another country they must provide documentation that they have renounced.
A candidate’s details will be published (with provision for redacting some personal details).
But the AEC is not responsible for “vetting” the candidates. Nor should it be. That is not its role. Anyway, it couldn’t be, given the short time frame involved.
A parliamentary inquiry into the impact of section 44 on Australian democracy, headed by Liberal senator Linda Reynolds (now a cabinet minister) concluded in its report last year that: “Large sections of the Australian community are disqualified from nominating for election [….]
“Some of those automatically disqualified from nominating under s. 44 may be able to address the reasons for disqualification by quitting their public sector job or successfully renouncing a foreign citizenship before nomination, but many will never be able to.
“With the changing demographic of our nation, s. 44 will increasingly disenfranchise more and more citizens from nominating”.
The inquiry also pointed to a somewhat esoteric risk. It said there is “a significant, but previously unexamined, aspect to s. 44 and its interpretation by the High Court. This may lead to an avenue to manipulate an election.
“Any otherwise eligible Senators and Members who are elected on preference flows could have their position challenged, if they relied upon the preferences of an ineligible candidate. This has the serious potential to affect the overall result after the election has concluded, at any point during the term of Parliament.”
The inquiry recommended a referendum to repeal the section, or insert the words “until the parliament otherwise provides”.
If it passed, the committee said, the government should engage with the community “to determine contemporary expectations of standards in order to address all matters of qualification and disqualification for parliament through legislation”.
The committee recommended mitigation in the meantime, while the ground was prepared for a referendum, including full disclosure at nomination, which has been introduced.
It’s easy enough to understand why the political parties are reluctant to contemplate going down the referendum path.
Few referendums succeed, not least because they require not just an overall majority, but a win in a majority of states.
Further, a section 44 referendum would likely involve a divisive debate around whether there should be a change from the Australian-only citizenship qualification for standing for parliament.
And there are other referendum priorities – for example to include in the constitution some form of Indigenous recognition.
On the other hand, mitigation can never adequately deal with section 44 hazards. On citizenship, the section means Australians can be hostage to changes in overseas law. Also, people do not always have access to information to put their status beyond doubt, or it may be a difficult and costly process to do so. This may discourage some potential candidates exercising their democratic right.
If there are not any early parliamentary casualties in the coming term, the parties won’t feel any pressure to secure a permanent solution on section 44. Nevertheless it remains a piece of constitutional housekeeping that needs addressing.
Among the many lessons the recent Liberal leadership spill has taught us is that the problems arising from section 44 of the constitution, which already has quite a hit list, have not gone away, and there may be more to come.
The section deals with disqualifications from parliament. The problems with it have not gone away, but have become part of the political struggle. They are also not only about citizenship, nor are they simply a matter of doing the paperwork.
It is not clear what the disqualification provisions are, or how they are enforced. And, finally, the problem is not going to be resolved if politicians continue to ignore it.
When section 44 issues were first raised, then Prime Minister Malcolm Turnbull tried to use them as a way of attacking his parliamentary opponents. The ALP is now repaying the favour. Both sides have been more interested in using the issue as a weapon than reaching a solution.
The original disqualification questions were about holding foreign citizenship. But it is now being asked if the special jobs created for Tony Abbott and Barnaby Joyce breach the “office of profit” provisions, while Peter Dutton’s business dealings have come under scrutiny for a potential s44 breach.
Meanwhile, the question of disqualification on the basis of an entitlement to foreign citizenship, or to its “rights and privileges”, remains unaddressed. If the High Court were to look into the cases of the MPs with such entitlements, and to rule consistently with its earlier decisions, up to a third of the parliament could be disqualified.
But the whole issue is clouded in uncertainty. The section is very badly drafted; partisan conflict has meant that few cases have made it to the High Court and, when they have, the court’s judgments have been, in Jeremy Gans’s words, “too rare, sparse and cryptic for anyone to confidently rule most Australians in or out” of eligibility.
Different judges have reached different conclusions on the same cases. Even those who have agreed with the other judges have done so for different reasons, so no consistent rule can be derived from the case.
Judges are more interested in reaching a decision on the case in front of them than articulating a general rule that can guide future action. So while QCs may make declarations about how the High Court would rule in any case put to them, as the Commonwealth Solicitor-General said on the Dutton case, “it is impossible to predict” how the High Court will rule on a particular case.
The fact that no one is responsible for applying and enforcing these provisions exacerbates the uncertainty. While section 34 on qualifications is amplified by the Electoral Act and administered by the Australian Electoral Commission, there is no comparable authority for determining disqualifications.
The constitution provided three avenues: the ancient right of parliament to determine if members were qualified to sit; some ways in which the High Court could determine disputes as a Court of Disputed Returns; and the possibility of lawsuits by citizens against members whose eligibility was challenged.
This has meant there is no consistent enforcement. The AEC has refused to involve itself in judging disqualifications. The parliamentary power to determine is completely discredited by the partisan motivation of the politicians. The High Court will only hear cases brought within 40 days of the election unless these are referred by parliament. And the first time anyone used the Common Informers Act, the High Court sniffily declared the act was not properly drafted and was in breach of the constitution. The court threw out the case, nullifying the provision specifically inserted in the constitution to give ordinary citizens the right to enforce the disqualification rules through the courts.
Turnbull announced that all MPs would be asked for a declaration that they were not disqualified by reason of holding a foreign citizenship. These declarations were recorded in a citizenship register, but no action was taken as a result. The register appeared to be an empty gesture.
So we have rules on disqualification that are applied only to those who are honest enough to resign or unlucky enough to find a parliamentary majority organised to refer their case to the High Court.
The multiparty parliamentary committee investigating the problem (the third one to do so) concluded (like its predecessors) that section 44 is not fit for purpose. It proposed a constitutional amendment to put the determination of disqualifications back into the hands of parliament. But Turnbull rejected this proposal before the committee had even proposed it.
Where do we go from here?
Probably everyone in Canberra is too shell-shocked right now to think of more than surviving the upcoming election. But, after the election, the best starting point would be the parliamentary committee’s recommendation to put responsibility back into parliamentary hands. This would enable work to begin on how best to deal with the tensions arising from citizenship, public employment, business dealings and so on, and what sort of regulatory structure would be most appropriate.
The question is how to overcome the inertia and partisan opportunism that have impeded the search for a resolution of the problem up to now. The most promising course would be the development of a cross-party advocacy network, building on the work of the Joint Standing Committee on Electoral Matters. It would help if members of the public were to write to or ring their MPs and senators to express their concerns.
If this sounds too unambitious, those with the energy to do so could organise to challenge, within the 40-day window, the election of all those members and senators who are entitled to another citizenship or to its rights and privileges.
How many were caught in this net would depend on how many of the present representatives were re-elected, but it would probably not be less than 20-25% of the parliament. For them, the exclusion would be permanent, because while a foreign citizenship can be renounced, an entitlement cannot be: it remains in the law of the foreign country, and the High Court recognises foreign law as the determinant of citizenship status.
The possibility of having a quarter of the parliament thrown out in this way might just be enough to induce the parliamentarians to support a move to a better system.
The release of the report by the Joint Standing Committee on Electoral Matters (JSCEM) into section 44 of the Australian Constitution is the latest chapter in the long-running dual citizenship saga. The committee was asked to consider the impact of section 44 and options for reform.
The key recommendation of JSCEM is that there should be a referendum proposing either that sections 44 and 45 of the Constitution are repealed, or that the words “until the Parliament otherwise provides” be inserted into those sections.
The majority report states that the problems caused by section 44 are “wide-ranging” and “have significant and detrimental implications” for Australia’s democracy.
If either of the recommended referendum questions were passed, the effect would be to remove the disqualification criteria from the Constitution and instead leave it to the parliament to enact laws governing this area. This would supposedly allow for disqualification laws that better reflect modern community standards.
There are several practical problems with this, and that is without considering the underlying substantive question of whether section 44 should actually be changed.
The first problem is that it is highly unlikely a referendum would succeed, a point acknowledged by JSCEM. To succeed, a referendum question must be approved by not only a majority of voters across the country, but also a majority of voters in a majority of states. That means a referendum can be defeated with only 19.8% of Australians (being a majority of voters in each of the four smallest states) voting no.
It is highly unlikely that the Australian people would vote “yes” in a referendum that simply asks them to repeal section 44 – which is precisely what JSCEM has recommended. That would not only mean voting “yes” to allowing dual citizens to be elected (itself a controversial proposition), but would also allow individuals to be elected where they have been convicted of treason, are under sentence for a serious crime, or have a financial conflict of interest.
To be fair, JSCEM goes on to recommend that if the referendum passes, the parliament should enact laws to address matters of qualification and disqualification. Any such laws would most likely ensure that many of the circumstances described above would still result in disqualification.
But the difficulty with this is two-fold. The first is that – rightly or wrongly – many Australians blame our politicians for the problems with section 44. The idea they should put those same politicians in charge of deciding what disqualifications should apply to politicians in the future is unlikely to be met with great enthusiasm.
The second difficulty is that JSCEM is asking us to consider constitutional change in a vacuum. How can the Australian people judge whether or not to vote for repealing section 44 without knowing what, if anything, will replace it?
The committee suggests the removal or amendment of section 44 is a “necessary prerequisite” to a public debate on what constitutes appropriate parliamentary disqualifications.
I would suggest the opposite is true. A public debate on what constitutes appropriate parliamentary disqualifications is a necessary prerequisite to any referendum suggesting the removal or amendment of section 44.
It is somewhat surprising that with recent polls suggesting a majority of Australians support the dual citizenship disqualification, only one committee member reflected this view and concluded constitutional change was not required.
In his minority report, Liberal Ben Morton stated “there has been no compelling argument” to remove the dual citizenship disqualification. He also confirmed he would campaign against any constitutional change attempting to remove this requirement.
This provides further insight into why a referendum will not occur. A government holding a one-seat majority simply cannot risk the distraction and destabilisation of a constitutional referendum that would divide its own members.
Other reform options?
Despite this, majority report did go on to recommend a number of practical strategies to “mitigate the impact of section 44” if constitutional change is not pursued.
These include the development of online self-assessment tools, additional education and support for candidates, formalising the parliamentary referral process, and working with foreign governments to streamline citizenship renunciations.
These are mostly sensible recommendations that will encourage greater compliance with the existing constitutional provisions. Given it is highly unlikely a referendum will happen, they are also the most important in practical terms.
The JSCEM report provides a number of practical recommendations to improve compliance with section 44. But it also confirms there is no easy fix.
Instead, it looks as though the dual citizenship saga still has a long way to go.
Voters in four states will face byelections after three Labor MPs and a crossbencher announced they were resigning from parliament in the wake of a landmark High Court decision disqualifying ACT Labor senator Katy Gallagher on the grounds that she was a dual British citizen when she nominated for the 2016 election.
Labor’s Josh Wilson (WA), Justine Keay (TAS), and Susan Lamb (QLD) and the Centre Alliance’s Rebekha Sharkie (SA) quit within hours of the judgement.
Another byelection will also come from the proposed resignation of the ALP’s Tim Hammond (WA) who is stepping down for family reasons.
Lamb, who holds the highly marginal Queensland seat of Longman will have to renounce her British citizenship before she can recontest her seat. Bill Shorten said he was confident she could do so in time for a byelection.
The High Court has disqualified ACT Labor senator Katy Gallagher from sitting in parliament, in a decision opening the way for four byelections, three of them in Labor seats.
The decision, reigniting the citizenship crisis, has transformed the immediate political landscape, overshadowing Tuesday’s budget and putting immense pressure on Opposition Leader Bill Shorten, who delivers his budget reply on Thursday, to have three ALP MPs immediately quit.
Gallagher was ineligible to sit because she had not completed the renunciation of her dual British citizenship when she nominated for the 2016 election.
The four MPs in the firing line are Susan Lamb in the Queensland seat of Longman (0.8% margin), Justine Keay from Braddon in Tasmania (2.2%), Josh Wilson who holds Fremantle in Western Australia (7.5%) and crossbencher Rebekha Sharkie from the South Australian seat of Mayo (5.4%).
Labor already faces a byelection for the seat of Perth, with Tim Hammond announcing last week he would resign for family reasons.
Attorney-General Christian Porter declared the court had provided a “crisp and crystal-clear clarification” of the law. He called for the resignations of the Labor MPs by the end of the day.
Porter flatly rejected Shorten’s earlier statement that the court had set a new precedent. Shorten said Labor would now consider the implications of the decision.
Porter said for Shorten to claim it was a reinterpretation was “talking absolute rubbish”.
“We all knew what the circumstance was last October”, when the court ruled on the case of the Nationals’ Matt Canavan, Porter said.
“Bill Shorten must require the resignation of those three Labor members today, and that must occur before close of business today,” he said.
Neither side looks forward to a plethora of byelections, which are expensive and with unpredictable fallout, so close to a general election.
The contest in Longman would be testing for Labor. The Liberals would have a prospect of picking up Mayo. Sharkie is from the Centre Alliance, formerly the Nick Xenophon Team, the fortunes of which have collapsed.
University of Sydney constitutional expert Anne Twomey said the crux of the court’s decision was that the test of someone having taken reasonable steps to renounce their foreign citizenship – the argument on which Gallagher relied – applied only when the country actually or effectively would not let the person renounce. This did not apply with UK citizenship.
Twomey said the four MPs in question, who were all British citizens when they nominated, were in similar circumstances to Gallagher’s.
She added that “the real problem will be for those people from countries where it is difficult to renounce or it takes a very long time.
“Parties will have to complete pre-selection at least a year before an election to allow sufficient time for renunciation, and even this might not be enough for people from some countries.
“It will also narrow the field for filling casual vacancies to those who have no foreign citizenship, so that renunciation problems can be avoided. The big message here for anyone who might want to be a member of parliament in the future is to renounce now.”
George Williams, from the University of New South Wales, said there could be more MPs caught by the decision.
As a senator, Gallagher’s disqualification does not trigger a byelection – she is set to be replaced on a recount by the next person on the ALP ticket, David Smith.
Sharkie said she would now take urgent legal advice.
“It is my belief that the particulars of my circumstances are materially different to Senator Gallagher’s case. My paperwork was lodged and received by the UK Home Office before the election was called. My paperwork was returned before the election was held.”
Porter rejected her argument that her circumstances were different.
Gallagher said she had always acted on legal advice which indicated she satisfied the eligibility requirements. But she respected court’s decision.
“I believe that I have more to contribute to public life and I will take the time to talk with Labor Party members on how I can do this over the months ahead,” she said.
The citizenship crisis has claimed nine federal parliamentarians since the election. Another two, Barnaby Joyce and John Alexander, were either ruled ineligible or resigned but are still in parliament after being returned at byelections.
In the earlier stages of the citizenship crisis Shorten had been adamant that all Labor MPs had fulfilled the constitutional requirement on citizenship.
Over the past two months, things have been uncharacteristically quiet on the dual citizenship front. That is all about to change when the High Court (sitting as the Court of Disputed Returns) hands down its long-awaited decision on the eligibility of Senator Katy Gallagher. Whatever the result, this decision has implications beyond the immediate fate of the Labor senator.
Unlike the previous cases, Gallagher admits she knew of her dual citizenship, but maintains she was still eligible because she had taken “all necessary steps” to renounce it.
Before nominating, Gallagher had submitted the prescribed renunciation form and the renunciation fee had been debited from her credit card. However, the UK Home Office subsequently requested further documents and did not formally register her renunciation until after the 2016 federal election.
What will the court decide?
The question before the High Court is whether somebody who has begun the renunciation process but is technically still a dual citizen at the time of nomination is eligible to be elected to parliament.
In one of the earliest cases considering dual citizenship in 1992, the High Court raised the possibility of an “all reasonable steps” exception to the dual citizenship disqualification. In the recent “Citizenship Seven” case the court confirmed there were limits to section 44. It found that if a foreign law made it impossible (or not reasonably possible) for a person to renounce their foreign citizenship, they would not be disqualified provided they had taken “all reasonable steps” within their power to renounce.
The present case turns on just how wide the “all reasonable steps” exception is held to be. Does section 44 just require a person to take all reasonable steps within their power to renounce, regardless of whether that renunciation is actually effective? Or is the exception limited only to circumstances where a foreign law makes renunciation practically impossible?
As the prime minister has learnt, it is never easy to predict with any certainty what the High Court will decide. If Senator Gallagher is to remain in parliament, she needs the court to take an expansive approach to the section 44 exception.
However, in both the Citizenship Seven and Hollie Hughes cases, the High Court has adopted a stricter interpretation of section 44, which would likely lead to disqualification if it approaches this case in the same way.
What happens next?
Obviously the High Court decision will have an immediate impact on Gallagher. If she is found to be ineligible, then a recount will likely mean that her replacement in the Senate is David Smith. He was the second ALP Senate candidate for the ACT at the 2016 election.
Importantly, this is a decision that has potential impacts on at least four other parliamentarians. The citizenship declarations of Susan Lamb, Justine Keay and Josh Wilson from the ALP, and Rebekah Sharkie from the Centre Alliance, all show they were technically British dual citizens at the time of nominating for the last federal election.
All four have made similar claims to Gallagher in terms of having taken “all reasonable steps” to renounce their dual citizenship. If Gallagher is held to be ineligible, the status of these members will undoubtedly also be in question.
Importantly, there are factual differences between all of these cases. This means much will turn on the precise reasoning contained within the High Court decision on Gallagher. If the court adopts the same strict approach as in recent section 44 cases, there would be a strong case for arguing that these other four parliamentarians should resign immediately.
Conversely, if the court finds Gallagher is eligible, much of the heat will be taken out of the dual citizenship controversy. It may even mean that we have seen the last of the dual citizenship referrals.
Parliamentary committee report
In all the speculation about the pending High Court decision, it should not be forgotten that the Joint Standing Committee on Electoral Matters is expected soon to hand down its final report following its inquiry into section 44.
While today’s High Court decision will have an immediate impact on the composition of the current parliament, the committee report is perhaps even more significant in terms of its potential effect on the broader conversation about section 44 and constitutional reform.
Embattled Labor MP Susan Lamb has hit back at government pressure for her to quit parliament over her dual citizenship, in an emotional speech laying the blame for her failure to produce a vital document on an estrangement from her mother.
But the government was unmoved by Lamb’s tearful explanation, saying it changed nothing – although there was no sign of imminent action to refer her to the High Court.
Lamb, who holds the marginal Queensland seat of Longman, took steps to renounce her British citizenship but the UK authorities required her parents’ marriage certificate, which she did not produce.
The government has threatened to refer her to the court, despite Labor’s opposition.
Some in the government had hoped that if Lamb could be forced to quit quickly without a court case, a byelection could be held in Longman on the same day as the Batman byelection, thus putting maximum heat on Bill Shorten.
But with Wednesday’s announcement of March 17 as the date for the Batman contest and Lamb refusing to resign, that is not going to happen.
Lamb told parliament she had been advised she did not have a legal right to access the marriage document.
Recounting how her mother had abandoned her as a young child, she said: “One day when I was around six years old my mum dropped me off at school, and she never came back to pick me up.
“I don’t remember every detail of what happened afterwards. I remember lots of tears. I remember lots of confusion. I remember my dad trying to explain. I remember sometime later, dad taking me to the train station, late one evening, to collect my mother.
“I thought she was going to come home. The train came, the train went, no sign of her, so we went home. Then one day, I remember going outside the front of the mill gates. We lived on the mill grounds in Mackay in north Queensland …
“A car turned up … my mother got out, words were exchanged and then my mother drove away. My dad was now a single parent – an amazing man whose example I try to live up to every day of my life.”
Her father died nearly 20 years ago.
Lamb said many years ago she and her mother attempted to build a relationship, but that failed.
“The fact is, my mum is not around to grant me access to her marriage certificate.”
Lamb said she was not telling the story to gain sympathy, but to explain that she did not have the legal entitlement to obtain the document. “So I would simply ask those opposite, take a moment and think about the circumstances.”
But government sources said that in her situation she could have applied to the registrar of births, deaths and marriages, or have got a lawyer to be an intermediary.
The sources said Lamb’s circumstances were similar to those of former senator Fiona Nash, also British through her father, who sought referral to the High Court and was declared ineligible to sit. Nash’s parents, now both dead, had divorced, and she had had little contact with her father.
Previously The Australian quoted Lamb’s mother saying she would have “definitely helped her if she had been contacted”.
The ABC’s Jane Norman tweeted “Re. Susan Lamb: QLD’s Registry of Births, Deaths and Marriages says requests are considered on a case-by-case basis where parental consent isn’t obtainable”.
The High Court has ruled that Steve Martin, from the Jacqui Lambie Network (JLN), is eligible to enter the Senate, dismissing the argument that his mayoral position disqualified him under the Constitution’s Section 44.
After the decision Martin quickly rejected any suggestion he might stand aside to allow Lambie to return to the Senate, despite her clear wish that he do so.
Lambie resigned from parliament last year because she had dual citizenship, inherited via a Scottish father.
Martin said he was excited at the case’s outcome and the prospect of taking up the opportunity to work for Tasmania in the Senate.
Asked whether he might defect to become an independent, as did a One Nation replacement senator, Fraser Anning, Martin said he was entering the Senate as a JLN candidate and there were still a few steps to be gone through. He would not be drawn on anything “hypothetical”.
The issue in the case of Martin, who was number two on the JLN ticket at the election, was whether, as mayor of Devonport, he held an office of profit under the crown.
Former One Nation candidate Kate McCulloch maintained that he did. The full bench decision, which was unanimous, has now clarified the constitutional position in relation to local councillors generally.
Lambie said at the weekend: “My heart is set on coming back to the Senate”.
Martin was “entitled to that second seat. If he wants to run through with it, well he’s entitled to do that. Unfortunately I broke the rules, whether it was intentional or not, and I have to sit on the sidelines and pay the price for that,” she told Sky.
“I’ll be brutally honest, if it was me in his position I would be extremely loyal and I would step down. That’s what I would do, but that is not up to me – that is up to him.”
Next week the court will hear the case concerning the successor to former Nick Xenophon Team senator Skye Kakoschke-Moore, who also resigned in the dual citizenship crisis.
Kakoschke-Moore is arguing the vacancy should not go to the next candidate on the ticket, Tim Storer, who, after a falling out with the party, is no longer a member of it. She maintains the seat should go back to her; she has now freed herself of her British citizenship.
The court also has before it the status of ACT Labor senator Katy Gallagher, who did not receive confirmation of her renunciation of British citizenship until after her nomination.
Meanwhile, the Coalition is awaiting the court’s judgment in the case of David Gillespie, an assistant minister.
At issue there is another part of Section 44, which prohibits anyone being chosen for, or sitting in, parliament if they hold a pecuniary interest in an agreement with the Commonwealth.
A tenant in a Port Macquarie shopping centre owned by Gillespie’s family company has an Australia Post franchise. Australia Post is a government business.
The opposition failed in an attempt to get a “job lot” of MPs referred that included four Liberals, four from the ALP, and the Nick Xenophon Team’s Rebekha Sharkie.
The ALP motion was supported by all five crossbenchers, resulting in a tied vote of 73-73. The Speaker, Tony Smith, acting in line with parliamentary convention, used his casting vote to defeat the motion.
The government, insisting that none of its MPs should be referred, wanted the members considered individually.
But crossbenchers rejected that argument, seeing it as the government being partisan.
The government said it would continue to talk to the crossbenchers overnight but they are not likely to be swayed before parliament rises this week for the summer recess.
The Labor MPs in the opposition motion were Justine Keay, Josh Wilson, Susan Lamb and Feeney.
The case of Gallagher – who took action to renounce her British citizenship but did not get registration of her renunciation before she nominated for the 2016 election – should provide guidance in relation to the three other Labor MPs and Sharkie, who have similar circumstances.
Labor argues that those who had taken reasonable steps to renounce but did not receive their confirmations in time (or, in Lamb’s case, at all) are eligible.
Feeney is in a different category from the other Labor MPs – he has not been able to provide evidence that he renounced his British citizenship in 2007, as he says he did. He was referred after the job-lot motion’s defeat.
Both Gallagher and Feeney accepted they should be referred. Gallagher, while maintaining her eligibility, told the Senate she was standing aside from her frontbench positions and had asked to be referred to the court, saying her opponents would continue to use the issue.
Labor said the four Liberals – Jason Falinski, Julia Banks, Nola Marino and Alex Hawke – had not provided adequate documentation of their eligibility.
In the run up to the vote, Marino released advice from the Italian consulate saying she was not an Italian citizen.
Falinski produced advice saying that he was not a citizen of the UK, Poland, Russia or Kyrgyzstan. But the letter to Falinski was dated Wednesday and the law firm, Arnold Bloch Leibler, said that “as previously discussed, we cannot conclusively advise on foreign law and recommend that you seek independent advice from foreign law experts”.
The crossbenchers were lobbied hard over the motion, including on the floor of the chamber, by both the opposition and the government.
Labor made an unsuccessful attempt to get its motion dealt with before Barnaby Joyce, who has just faced a byelection after the High Court declared him ineligible to sit, returned to the lower house.
Labor had a temporary majority but did not have enough time. Joyce was sworn in at 1.15pm and his presence in the subsequent debate meant the numbers were tied.
Moving the motion, Manager of Opposition Business Tony Burke said: “The only appropriate way for us to deal with this is to make sure that, wherever there has been serious doubt across the chamber, the High Court becomes the decision-maker rather than the numbers on the floor of this house”.
Arguing for a case-by-case approach, Malcolm Turnbull said that Labor “with not a principle in sight, with not a skerrick of evidence … wants to send members of the House to the High Court … without making any case that they are, in fact, dual citizens”.
The Greens’ Adam Bandt said the approach must be “even-handed and non-partisan”. “We think there should be an agreed set of names that go forward from this house.”
Sharkie, appealing for unity, said: “We will hang individually if we don’t hang together”.
Crossbencher Bob Katter told the parliament that none of the MPs should be sent to the High Court.
Labor leader Bill Shorten revealed that he had known for just over a week that Feeney didn’t have the required documents.
“I informed him that he needed to tell the parliament what was happening, and I made it clear to him that there was a deadline of disclosure,” Shorten told reporters.
Feeney has said he is still trying to have the British authorities find documentation that he renounced UK citizenship.
If Feeney is disqualified, Labor would be at risk of losing his seat of Batman to the Greens. There is doubt over whether he would be the candidate in a byelection.
Shorten did not disguise how angry he is with Feeney. “I am deeply frustrated – that’s a polite way of putting it – that one of my 100 MPs can’t find some of the documents which, to be fair to him, [he] says exist and says he actioned,” Shorten said.
He admitted that if he had been aware of Feeney’s situation he would not have been so definite in his repeated confident statements about the eligibility of all his MPs.
Labor was divided internally over whether it should pursue Josh Frydenberg, whose mother came to Australia stateless: the Burke motion did not include him. The ALP is also not at this point pursuing another of those it has named, Arthur Sinodinos, who is away on sick leave.