The Coalition and Labor are locked in a legal dispute about whether section 44(i) of the constitution renders a group of MPs ineligible because they were foreign citizens on the nomination date for the 2016 election.
With two new citizenship eligibility cases off to the high court – Labor MP David Feeney and senator Katy Gallagher – a question mark hangs over several MPs relying on the so-called “reasonable steps” test to stay in parliament.
Labor MPs Justine Keay and Josh Wilson, and Nick Xenophon Team MP Rebekha Sharkie are in a similar position to Gallagher: they did their part to renounce British citizenship before the nomination date, but the renunciation was not processed (and effective) until after the deadline.
Those four rely on legal advice that they have taken “all steps reasonably required” by foreign law, and are therefore not disqualified by section 44(i) of the constitution.
What is the reasonable steps test?
Section 44(i) disqualifies people who are subjects or citizens of foreign powers from sitting in parliament. There is no exception explicitly expressed in the constitution.
The “reasonable steps” test was posed as an exception in the plurality judgment in the 1992 case of Sykes v Cleary, and was also backed by Justice Brennan.
Three judges said the high court should not give “unqualified effect” to foreign laws when judging who was a foreign citizen because that would mean that citizenship “imposed involuntarily” would disqualify people “notwithstanding that they had taken reasonable steps to renounce that foreign nationality”.
“It would be wrong to interpret the constitutional provision in such a way as to disbar an Australian citizen who had taken all reasonable steps to divest himself or herself of any conflicting allegiance,” the judges said.
The citizenship seven (Re Canavan) case did not overturn the precedent, but it did reframe the test in paragraph 72:
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.
Several constitutional law experts have warned it is arguable that taking reasonable steps towards renunciation is not enough to escape the constitutional disqualification on a strict reading of this passage, but the answer is unclear.
The government’s case: ‘reasonable steps’ aren’t enough
The case against Gallagher, Keay, Wilson and Sharkie has been put in legal advice by David Bennett QC released by Malcolm Turnbull.
Essentially, this advice places emphasis on the first sentence in paragraph 72: the only exception to the general rule that foreign citizens are disqualified is where the foreign law “irremediably” prevents them participating in representative government.
Under this construction, the “all steps reasonably required” test only kicks in when the foreign law prevents people running for office.
This spells trouble for the MPs and senator who were British at the time of the 2016 election nomination date. While the UK taking a few months to process a renunciation might be a nuisance, Bennett argues it doesn’t “irremediably” prevent anyone running for office.
The advices says that the circumstances show that Britain allows its citizens to renounce and gives effect to renunciation requests “relatively swiftly”.
The Labor case: ‘reasonable steps’ is a total defence
Labor has released legal advice by Ray Finkelstein QC and Simona Gory that the two high court cases only require a candidate to take reasonable steps to renounce.
This construction places emphasis on the second sentence of paragraph 72. Read in isolation, it seems to say: if a person has taken all steps reasonably required to renounce foreign citizenship, it would be against the constitutional imperative of representative democracy to bar them from running.
One argument for this reading is that the defence can’t apply only to those “irremediably” prevented from running because, if they have been prevented, there are no reasonable steps that would allow them to renounce.
This reading may provide a defence for Gallagher, Keay, Wilson and Sharkie.
So, did the MPs take all reasonable steps?
Only the court can say (if it gets to that).
On one view, sending forms off in time for a few months’ processing may itself be a reasonable step. The court may say that Gallagher, who filled a Senate vacancy in 2015, and Keay, who has said she held off on renouncing British citizenship for three months, were at fault for not renouncing sooner.
On the other view, candidates should not be punished for administrative delays of a foreign bureaucracy. Rebekha Sharkie, who sent renunciation forms off on 19 April, 2016, weeks before the election was called, still missed the deadline because the renunciation was not processed until 29 June. Wilson sent his forms off within 24 hours of becoming Labor’s candidate for Fremantle but still missed the deadline.
One more passage from Re Canavan that may be relevant, at paragraph 61: “Section 44(i) does not disqualify only those who have not made reasonable efforts to conform to its requirements.”
This is what lies behind Turnbull’s statements that the high court has taken a “very strict, literal, black-letter” approach. Although Turnbull is scrupulously avoiding another “the high court will so hold” style pronouncement, the government is convinced reasonableness has nothing to do with it.
When will we know who is in the clear?
Gallagher agreed to refer herself to the high court. Assuming the court does not schedule extra sittings out of session in December or January, her case is likely to be heard and decided in February and March.
Malcolm Turnbull has said that Keay and Wilson’s fate “will be determined by the Gallagher case because the facts are essentially the same”.
“If Katy Gallagher is successful then they will rest easy. If she is unsuccessful then they will have to resign,” he said.
But shadow attorney general, Mark Dreyfus, has said that each case has to be determined on its own particular circumstances. This could mean that Sharkie, Keay and Wilson will have to be determined separately by the high court later on in 2018.
There are also questions around Labor MP Susan Lamb’s eligibility. Lamb sent her renunciation form to the UK Home Office on 25 May 2016.
The Home Office sought further information on 7 July and on 10 August it responded that it “cannot be satisfied from the documents available” that Lamb held British citizenship, and therefore refused her application to renounce.
