After hijacking the government’s agenda for months, the section 44 dramas that have plagued the 45th parliament will be heard by the high court over the next three days.
There are seven cases before the high court, including two involving senators who have already resigned. Most of Australia’s political parties have found themselves swept up in the drama, with dual citizenship issues arising for the Nationals’ Barnaby Joyce, Matt Canavan and Fiona Nash, as well as One Nation’s Malcolm Roberts and former senators for the Greens, Larissa Waters and Scott Ludlam.
Nick Xenophon, who said he had renounced any claim to Greek and Cypriot citizenship from his parents, also asked the Senate to refer him to the high court, after it was discovered he was considered a British overseas citizen, given his father’s birthplace of Cyprus had been a British territory.
Xenophon has announced his plans to resign, regardless of the outcome of the high court case, which he believes he will win, with an eye on re-entering the South Australian state parliament in March next year.
Waters and Ludlam have also resigned, having received advice they were both in breach of section 44 of the constitution, which bans parliamentarians with dual citizenship.
Roberts is different again – after fighting any claims he held any other citizenship other than Australian, he asked the Senate to refer him to the high court, in what he said would prove he had taken all the necessary steps to divest himself of British citizenship before nominating for One Nation.
Roberts was cross-examined in the high court last month in a special sitting to determine the facts, where it was decided he was a dual-citizen at the time of his election.
However, the government MPs have dug in, confident, they have said, in advice from the solicitor general.
For four of the cases, it is a fight for their political lives. For the Turnbull government, if Barnaby Joyce is found to be ineligible to sit in parliament, there’s a by-election in the seat of New England to determine whether the one seat lower house majority holds.
For the parliament, it’s another chance to have a section of the constitution, which was written before Australian citizenship existed, clarified. For voters, it’s one step closer to turning the page on one of the more unusual chapters of Australian politics. Here’s a summary of each case.
The Nationals leader and deputy prime minister, elected as Queensland senator in 2004 and New England MP in 2013.
Citizenship status: Born in Australia. Received New Zealand citizenship through descent from his New Zealand-born father. Was unaware until August. Since renounced.
Arguments: Ignorance. He submits that not knowing of his citizenship issues, he could not be in breach of section 44.
Cases most similar to: Fellow Nationals MPs Matt Canavan and Fiona Nash.
The Nationals Queensland senator, elected 2013. Resigned as resources minister over citizenship.
Citizenship status: Born in Australia. Received Italian citizenship by descent as a child, through his mother’s family. Was unaware until July, when he told the media that his mother had applied on his behalf, without his knowledge, for Italian citizenship when he was 25. His lawyers now say that is irrelevant because of the Italian law change which gave him citizenship by descent. Since renounced.
Arguments: Ignorance and relevancy of another nation’s laws. His lawyers contend he did not know about his citizenship conflict and could not be in breach. They also argue that another nation’s law change should not have bearing on his eligibility as he did not voluntarily act to receive that citizenship.
Cases most similar to: Barnaby Joyce and Fiona Nash. Also the former Greens senator Larissa Waters, and NXT senator Nick Xenophon in regards to how much influence another nation’s laws should have.
The Nationals senator for New South Wales, elected 2004. Deputy leader of the Nationals. Minister for regional development.
Citizenship status: After Barnaby Joyce’s case was made public, Nash investigated her own status and discovered she was a British citizen by descent through her Scottish-born father. Was unaware until July. Since renounced.
Arguments: Ignorance. Said she was told by her family that while her siblings had UK citizenship because they were born there, she would have to apply for it as she was born in Sydney.
Cases most similar to: Barnaby Joyce and Matt Canavan.
The Greens senator for Queensland, elected 2010. Resigned from the Senate over citizenship.
Citizenship status: After colleague Scott Ludlam’s case was revealed, Waters sought advice on her own situation. She was born to Australian parents in Canada, and left that nation as a baby. Believed she would need to register her citizenship before she was 21 to be considered a citizen of Canada, which she did not do. Discovered in July that a change of Canadian law the week after she was born automatically made her a citizen. She has since renounced.
Arguments: Waters argues she was in the wrong and should have checked her citizenship status before she nominated for the Senate. She argues that not doing so is not an excuse, and she was in breach of section 44. Argues all MPs before the high court are in the same boat.
Counter argument: The government disagrees. The attorney general, George Brandis, said as Waters was unaware of her citizenship conflict she could not be seen to be in breach of section 44. The government also contends that Canada’s law change should not have bearing on Waters’ eligibility.
Cases most similar to: Fellow former Greens senator Scott Ludlam. The government believes her case is comparable with Fiona Nash and Barnaby Joyce, as well as Nick Xenophon and Matt Canavan.
The Greens senator for Western Australia, elected 2007. Resigned from the Senate.
Citizenship status: Discovered he was still a citizen of New Zealand, where he was born, after he was contacted by a West Australian barrister who had been looking into section 44 issues. Believed his New Zealand citizenship had been renounced when he received Australian citizenship as a teenager. Has since renounced.
Arguments: Ludlam, like Waters, argues it is an open-and-shut case and he is in breach of the constitution – along with all the other MPs before the court. He said not knowing is not an excuse and given there are numerous examples of MPs who investigated their citizenship status before their nominations, ignorance can not be used as an excuse.
Counter argument: The government believes Ludlam was in breach of the constitution and should be found ineligible, as he should have known he was a dual citizen or had reasonable suspicions. But it argues his case is different to Waters, Nash, Canavan, Xenophon and Joyce.
Cases most similar to: Colleague Larissa Waters. The government believes his case is comparable to One Nation senator Malcolm Roberts.
Leader of the Nick Xenophon Team and senator for South Australia, elected 2007. Has since announced an intention to resign to run for the South Australian state parliament regardless of the outcome of the case.
Citizenship status: Xenophon, who was born in Adelaide, delighted in telling reporters he had taken the steps to renounce any Greek or Cypriot citizenship claims before he nominated to the Senate. However he announced in August he was tripped up by Cyprus’s status as a British territory until 1960, which made him a British overseas citizen, by descent. A hangover from colonial times, he is afforded few citizenship rights, including the right to abode, but is considered a tier of citizenship. Has since renounced.
Argument: Ignorance. He argues he took all reasonable steps to renounce citizenship conflicts but could not have known about British laws that afforded him a degree of citizenship. The government agrees.
Cases most similar to: Matt Canavan and Larissa Waters, on the (government’s) argument that another nation’s laws should not impact on his eligibility.
One Nation senator for Queensland, elected 2016.
Citizenship status: Born in India to a Welsh-born father and Australian-born mother, Roberts lost any Indian citizenship when he became an Australian citizen at 19. Claimed at first he was only ever an Australian citizen. Later said he took steps to renounce any claim to British citizenship before the 2016 election. Maintained he never believed himself to be any other nationality other than Australian, despite not setting foot on Australian soil until 1962 when he was seven. Under cross-examination in the high court, it was revealed Roberts had sent emails asking if he was still a UK citizen to defunct email addresses, but did not fill out the official documentation or pay the fee to renounce until after the election. The high court found he was a dual-citizen at the time of his election. He has since renounced.
Arguments: Roberts has said his case is the strongest of all those facing the high court and believes he will be found to have been eligible to be elected. He claims that despite not believing he was British, he took steps to ensure he had no conflict, while the others before the court made no attempts. The government argues that like Ludlam, Roberts had reason to check any potential conflicts more thoroughly and should be found in breach of section 44.
Cases most similar to: The government argues Scott Ludlam. Roberts believes he is in a league of his own.
How might the court interpret section 44?
Strict status quo – dual nationals out. The majority of the high court in relevant precedents has held that section 44 bans parliamentarians who are dual nationals regardless of whether they know it or not, and regardless of whether they gained dual citizenship by descent. This is the approach favoured by Waters, Ludlam and the contradictor in Joyce’s case, Tony Windsor.
Lower the bar to let off parliamentarians without knowledge of their dual nationality. Under the reading of section 44 proposed by Brandis, parliamentarians should not be punished for not knowing they held dual citizenship. Only those who “voluntarily obtained or retained” foreign citizenship would be disqualified.
Who gets ruled ineligible under each of these scenarios?
If the previous strict understanding of section 44 is applied, constitutional lawyers have said that all seven parliamentarians would likely be ineligible. Joyce, the only lower house MP, will face a byelection to be contested by the former independent MP Tony Windsor. The Senate seats will likely pass to the next person on the party tickets at the 2016 election. However, if the successor in the seat resigns, creating an ordinary vacancy, the senators involved in the case could be reappointed by their party now they have renounced dual citizenship.
If parliamentarians require knowledge of their dual citizenship, Canavan, Joyce and Nash will likely be spared and keep their Senate seats and Waters will be found to have been eligible. Xenophon will be found eligible, allowing his party to choose his replacement instead of his seat passing automatically to the next NXT candidate, Tim Storer. The government argues Ludlam should still be found ineligible but, as he has already resigned, that would only affect how his replacement was chosen.
Roberts would still be in trouble because high court justice, Patrick Keane, has found he was a British citizen when he nominated and “knew that there was at least a real and substantial prospect” of that. Roberts disagrees, arguing that even if he suspected he may be British he didn’t know that, so he should be let off too.