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2017 Australian parliamentary eligibility crisis


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Main page In 2017, the eligibility of Australian parliamentarians with actual or possible dual citizenship 2017 Australian parliamentary
Contents to sit in the Parliament of Australia was called into question, amounting to an ongoing eligibility crisis
Featured content political event referred to variously as a constitutional crisis[1] or the citizenship crisis.[2]
Current events The issue arises from section 44 of the Constitution of Australia, which includes a
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subsection prohibiting allegiance to a foreign power for members of either house of the
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Parliament of Australia. On that basis, the High Court of Australia had previously held that
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someone who holds dual citizenship is ineligible for election to either house.[3]
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Seven cases of politicians claiming that they had not been aware of holding dual citizenship
Help Date 14 July 2017 present
before they were elected were referred to the High Court of Australia by the house of
About Wikipedia (3 months, 2 weeks and 4 days)
parliament in which they sat.[4][5][6][7] Senators Scott Ludlam and Larissa Waters, Co-
Community portal Location Canberra, Australian Capital
Recent changes Deputy Leaders of the Australian Greens, voluntarily resigned their seats. The parliament Territory (Parliament House,
Contact page referred their cases to the High Court in early August, together with those of Deputy Prime Canberra, High Court)
Minister Barnaby Joyce and Senator Matt Canavan, both of whom were National Party Cause Subsection 44(i) of the
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ministers in the Turnbull Government at the time, as well as Senator Malcolm Roberts of Australian Constitution
What links here One Nation. The cases of Nationals Deputy Leader and frontbencher Senator Fiona Nash, Participants Scott Ludlam, Larissa Waters,
Related changes
and leader of his eponymous minor party Senator Nick Xenophon,[4] were referred to the Matt Canavan, Malcolm Roberts,
Upload file Barnaby Joyce, Fiona Nash,
Special pages
High Court by the Senate on 4 September.[8][9] While Canavan had resigned from Cabinet,
Nick Xenophon, Stephen Parry
Permanent link Joyce and Nash remained in Cabinet with the support of Prime Minister Malcolm
Outcome All but Canavan and
Page information Turnbull.[10] The seven politicians were referred to collectively in the media as the
Xenophon found not validly
Wikidata item "Citizenship Seven".[11][12][13]
elected.
Cite this page
A directions hearing took place in the High Court as Court of Disputed Returns on 24 By-election scheduled for
Print/export August for the cases of Joyce, Canavan, Roberts, Ludlam and Waters.[14] The government Deputy PM Joyce's Division

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Create a book requested that these cases be heard by the Full Court in early September,[15][16] but the of New England.
Download as PDF Election recounts to fill
Court scheduled them to be heard over three days from 10 October.[17] On 12 October
Printable version vacant Senate seats of
Chief Justice Susan Kiefel concluded the hearing by observing: "It is hardly necessary to
Ludlam, Waters, Roberts,
Languages say that the Court is aware of the need to give its answers to these references with or and Nash.
without reasons as soon as possible. As counsel and instructing solicitors would appreciate,

Bahasa Melayu it is not always possible for the Court to do so immediately."[18] The Court's decision was
Edit links intensely anticipated.[19] This article is part of

The Court handed down its decision in Canberra on 27 October 2017.[20] It ruled unanimously a series about

that, under section 44(i), Joyce, Ludlam, Nash, Roberts and Waters had been ineligible to be Malcolm Turnbull
elected, while Canavan and Xenophon had been eligible.[21][22][23]
Early life and career
Contents Spycatcher trial OzEmail
1 Background Member for Wentworth
1.1 Legal requirements Howard Government
1.2 Application 2008 Liberal leadership spill
Carbon Pollution Reduction Scheme
1.3 Earlier application of section 44 in the 45th Parliament OzCar affair
1.4 Procedure 2009 Liberal leadership spill
1.4.1 Petition by individual or AEC Abbott Government
National Broadband Network
1.4.2 Parliamentary reference
September 2015 Liberal leadership spill
2 Citizenship Seven case
Prime Minister of Australia
2.1 Parliamentarians with dual citizenship
2.1.1 Scott Ludlam First Ministry Second Ministry
Election
2.1.2 Larissa Waters
Parliamentary eligibility crisis
2.1.3 Matt Canavan Australian Marriage Law Postal Survey
2.1.4 Malcolm Roberts Australian republican movement
2.1.5 Barnaby Joyce
2.1.6 Fiona Nash
2.1.7 Nick Xenophon VTE

2.2 Judgment
2.3 Aftermath

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2.3.1 Stephen Parry
3 Other MPs and Senators
3.1 Julia Banks
3.2 Justine Keay, Susan Lamb and Lisa Singh
3.3 Ann Sudmalis
3.4 Derryn Hinch
3.5 Katy Gallagher
4 New Zealand political row
5 Implications for parliamentary majority
6 References

Background [ edit ]

Main article: Section 44 of the Constitution of Australia (i) Allegiance to a foreign power

Legal requirements [ edit ]

The Australian Constitution does not require members of the Parliament to hold Australian citizenship, although section 42 requires all
members to swear allegiance to the Queen before taking their seat.[24] Further, the Commonwealth Electoral Act 1918 requires
candidates for Parliament to be Australian citizens.[25]

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.[26][27]

Application [ edit ]

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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.[28] During
2017, the eligibility of several sitting MPs and Senators has been questioned on the basis of breach of s 44(i). Two Senators have
resigned and Parliament has referred the cases of several other members and Senators to the High Court as the federal Court of
Disputed Returns.[29]

S 44(i) 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
elected by a recount 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.[30] 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.[31]

In the current Parliament of Australia, following the 2016 election, the Turnbull Government holds a one-seat majority in the House of
Representatives, which would be lost if two government members of the House were to be disqualified. The government would then be
vulnerable to an Opposition motion of no confidence, which if carried would require the government to resign. In any case, a by-election
would be held in any vacated seat and the government's majority would be removed if it lost at least one such election.[32][1]

Earlier application of section 44 in the 45th Parliament [ edit ]

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 Parliamentand 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

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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.[33][34] In April 2017, the
court found that Day was not validly elected at the 2016 election and ordered
that a special recount of South Australian ballot papers be held in order to
determine his replacement.[35] 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.[36][37]

Senator Rodney Culleton, who had left Pauline Hanson's One Nation Party Former Senator Bob Day (left) and his replacement Lucy
on 19 December 2016 to become an independent, had his eligibility to stand Gichuhi (right), who faced citizenship questions based on her
Kenyan background. The High Court found that she was not a
in the 2016 election challenged on two constitutional grounds. Among the
dual citizen and was free to take her seat in the Senate.
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.[38]

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 recount of the ballot, in a manner to be
determined by a single Justice of the Court.[39] Following that recount, on 10 March 2017 the High Court named Peter Georgiou as his
replacement, returning One Nation to 4 seats.[40]

Procedure [ edit ]

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The Commonwealth Constitution provides the High Court with original and appellate jurisdiction, and also empowers the Commonwealth
parliament to provide additional original jurisdiction.[41] 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 arisenwhich was the position inherited from the Parliament of the United Kingdom.[42] 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.[43]

Petition by individual or AEC [ edit ]

An appropriately interested person, such as a losing candidate, 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",[44] it is not bound by strict rules of evidence,[45] and all of its decisions "shall be final and conclusive and without
appeal, and shall not be questioned in any way"[46] (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.[47]

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 [ edit ]

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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".[48] 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.[49] 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.[50]

In practice, the references request the Court to determine how a vacancy so arising should be filled. The full Court may order a recount
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 recounts would be appropriate, given the time that has
elapsed since the members concerned were elected back in July 2016.[51] In addition, a number of the candidates most likely to succeed
in any potential recounts 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.[52]

Citizenship Seven case [ edit ]

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 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.[53] This argument was not accepted by the High Court, disqualifying
the five parliamentarians who definitely held dual citizenship, and exempting Canavan and Xenophon who were not fully dual citizens.

Parliamentarians with dual citizenship [ edit ]

Scott Ludlam [ edit ]

In late June 2017, John Cameron, a barrister from Perth,[54] applied to the New
Zealand Department of Internal Affairs to search the register of New Zealand

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citizens. Cameron intended 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). Upon discovering that Ludlam,
unlike Hinch, had not renounced his New Zealand citizenship, Cameron notified the
Clerk of the Australian Senate and Ludlam.[55]

On 14 July 2017, Ludlam announced that he still retained New Zealand citizenship
from his birth in New Zealand.[56] 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.[57] Since Ludlam was Scott Ludlam's (left) resignation from parliament and
ultimately found to have been ineligible to be elected, his seat will be filled by a subsequent investigation sparked similar discoveries
recount of the 2016 federal election in Western Australia.[58] The next un-elected for many fellow elected parliamentarians, including
fellow Senator Larissa Waters (right).
Greens candidate on the Senate ticket in Western Australia, who is likely to fill the
seat, is Jordon Steele-John, a 22-year-old disability rights advocate, who will
become Australia's youngest senator in history if he replaces Ludlam.[59]

As of 8 October 2017, Ludlam has not renounced his New Zealand citizenship and has no immediate plans to return to politics.[60]

Larissa Waters [ edit ]

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 four days after Ludlam. Waters was born to
Australian parents who briefly lived in Canada, and returned with them to Australia while 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 dual citizenship since birth.[61] Her seat will be filled by a recount,[58]
giving former Democrats leader Andrew Bartlett, who held the second position after Waters on the Greens' 2016 Senate ticket in
Queensland, a high chance of returning to the Senate.[62]

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.[63][64]

Waters applied for renunciation of her Canadian citizenship on 27 July, which came into effect on 5 August, and intends to reenter the
Senate.[65]

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Matt Canavan [ edit ]

On 25 July 2017, Liberal National Party Senator Matt Canavan resigned from his positions of Minister for Resources and Northern
Australia in the Cabinet 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.[66]

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.[67] The government has taken the view that he is not in breach of the Constitution as the registration was not made with
Canavan's knowledge or consent.[68]

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 but stated that he would not be voting in the
Senate until the High Court decision.[63][64]

Canavan lodged the renunciation of his Italian citizenship on 8 August.[69] 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.[8][16] 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.[70]

Canavan expressed uncertainty over whether, if he was disqualified, he would have chosen to remain in politics.[71] 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 reduced its
vote share at the 2016 election.[72]

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.[21]:para 86

Malcolm Roberts [ edit ]

Senator Malcolm Roberts of the One Nation party was born in India of an Australian mother and a British father. Roberts is an Australian
citizen, and in August 2017 documents were revealed by BuzzFeed indicating that Roberts was a British citizen at the age of 19.[7]
Roberts stated that he had only ever been an Australian and that, in case he ever had British citizenship, before the 2016 election he took
reasonable steps to renounce it. Doubts were cast upon his view of the position. He could have also been an Indian citizen, as any

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person born in India on or after 26 January 1950, but prior to the commencement of the 1986 Act on 1 July 1987, is a citizen of India by
birth.[citation needed]

On 9 August the Senate, with all-party support, referred Roberts' position to the High Court as Court of Disputed Returns.[73][74] 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.[75] 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.[76][77]

Roberts' seat will be filled by a recount,[58] which will likely lead 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,[78] the bankruptcy petition against him had been withdrawn by 3 October.[79]

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.[80]

Barnaby Joyce [ edit ]

On 14 August 2017, Deputy Prime Minister Barnaby Joyce (leader of the National
Party of Australia and member of the House of Representatives) announced that
the New Zealand government had informed him that he might be a citizen of New
Zealand by descent from his father; he stated 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 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 Both the leader and the deputy leader of the Nationals,
documentary evidence of having done so.[81] He did not resign from his ministerial MP Barnaby Joyce (left) and Senator Fiona Nash

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offices and continued to vote in Parliament. The Leader of the House, Christopher (right), have been involved in the crisis after discovering
they hold dual citizenship.
Pyne, named four Labor members of the House whose positions under s 44(i) he
claimed required explanation and suggested that there were "many more" among
the Opposition.[5][82][83][84] Leading experts on constitutional law did not share the government's confidence about Joyce's eligibility.[85]

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.[16][86] 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 reelection was considered likely.[87] After the High Court's decision was handed down on 27 October, Windsor declared that he
would not run in the resulting by-election.[88]

It was suggested that the disqualified Joyce could remain in ministerial office for three months in accordance with Constitution section
64,[89] which could give time for him to be re-elected in a by-election. However, constitutional experts consider that, even if s 64 could
apply, the three-month grace period would run from ministerial appointment following the general election of July 2016 and so would
already have expired.[90]

Fiona Nash [ edit ]

Three days after the announcement from Nationals leader Joyce, on 17 August 2017, Nationals deputy leader and Senator, Fiona 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.[91][92][6] Her case was referred by the Senate to the High Court on 4 September.[9]

By 27 August, Nash had renounced her British citizenship. As she has been disqualified, her replacement will be determined by a
recount,[58] which will probably be the next un-elected candidate on the 2016 New South Wales Liberal/National Senate ticket, Hollie
Hughes. This would alter the representation balance of the two parties within the coalition, which ran on a joint ticket in New South Wales,
since Nash was deputy leader of the smaller National Party while Hughes is a member of the larger Liberal Party.[93]

Nick Xenophon [ edit ]

Senator Nick Xenophon leads the Nick Xenophon Team party, which has three seats in the Senate and one in the House. 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: Ive 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, Ive never been a citizen, I dont want to be, so if theres any question

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that I could be, I renounce any rights to be. I dont know what else I can do in the
circumstances. He added that he had not received replies to these enquiries.[94] Later he said
that he had renounced Greek citizenship but, on finding that he might be British, he had sought
clarification from British authorities.[95] On 19 August, he announced that British authorities had
confirmed that he is a British Overseas citizen, a lesser form of British nationality.[96] 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.[9]

On 6 October 2017, Xenophon announced that he would resign from the Senate in order to stand Nick Xenophon, initially questioned
for Greek or Cypriot citizenship, was
for the Parliament of South Australia at the South Australian state election due in March
confirmed by British authorities to be a
2018.[97][98] He did not name a date of resignation, although he did state his intention to remain British Overseas citizen.
in federal parliament until the High Court rules on whether he was validly elected.[99]

The High Court ruled that Xenophon's status as a British Overseas citizen did not fall within s 44(i), so that he has been validly
elected.[21]:para 135 His resignation would create a casual vacancy, which would be filled in the usual way.[100]

Judgment [ edit ]

It has been suggested that this section be split out into another article titled Re Canavan.
(Discuss) (November 2017)

In Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Re Canavan; Re Ludlam; Re
Xenophon (the "Citizenship Seven Case"), the High Court sat as the Court of Disputed Waters; Re Roberts [No 2]; Re
Returns. From 10 October until 12 October 2017, it heard submissions from the Solicitor- Joyce; Re Nash; Re Xenophon
General of Australia Stephen Donaghue, as well as legal representatives of the seven
parliamentarians involved and of Tony Windsor in the Joyce matter, and from an amicus
curiae appointed to assist the Court.[20] The seven parliamentarians in the case came to be
referred to in the media as the "Citizenship Seven".[101][102] The Court's decision was
intensely anticipated.[19][103]

On 27 October 2017 the High Court handed down its decision.[21][22][104] In a unanimous
judgment, the Court interpreted s 44(i) according to the "ordinary and natural meaning" of Court High Court of Australia as the
its language.[21]:para 19 On that approach, it firstly affirmed the view taken in Sykes v Cleary Court of Disputed Returns
that the question of eligibility is to be determined with reference to the point of Decided 27 October 2017

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nomination.[21]:para 3 The Court then followed the reasoning of the majority in Sykes v Citation(s) [2017] HCA 45

Cleary. It decided that the fact of citizenship was disqualifying, regardless of whether the Transcript(s) 10 Oct [2017] HCATrans
person knew of the citizenship or engaged in any voluntary act of acquisition.[21]:paras 71-2 It 199 ; Audio-visual
emphasised that to hold otherwise would introduce an element of subjectivity that "would be recording
11 Oct [2017] HCATrans
inimical to the stability of representative government".[21]:para 48 It followed that each of
200 ; Audio-visual
Joyce, Ludlam, Nash, Roberts and Waters had been ineligible to be elected. However, recording
Canavan and Xenophon had been eligible. It was determined that Canavan, under Italian 12 Oct [2017] HCATrans
law, was not a citizen of Italy.[21]:para 86 It was found that Xenophon was a British Overseas 201 ; Audio-visual
citizen, but that this did not give him the right to enter or reside in the United Kingdom; recording

therefore, for the purposes of s 44(i), he was neither a citizen nor entitled to the rights and Case opinions

privileges of a citizen of the United Kingdom.[21]:paras 134-5 The Court declared the seats of A dual citizen, irrespective of whether they
knew about their citizenship status, will be
the ineligible members to be vacant; it ordered that the vacancy in the House of
disqualified unless they have taken "all steps
Representatives be filled through a by-election and that the vacancies in the Senate be
that are reasonably required" to renounce their
filled by "special counts" (recounts or countbacks) of the ballot papers in each State, subject other citizenship.
to supervision by a Justice of the Court.[21]:paras 141-5 At the directions hearing, the Chief Court membership
Justice had approved the Commonwealth's undertaking to pay the costs of the referred Judges Kiefel CJ, Bell, Gageler, Keane,
parties and of Tony Windsor (intervening in the Joyce case).[105] sitting Nettle, Gordon, Edelman JJ
Keywords
Aftermath [ edit ]
Constitutional imperative Foreign citizenship
See also: New England by-election, 2017 Naturalised Voluntariness Willful blindness

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. Found to be eligible, Canavan, who had stepped down
from Cabinet pending the court's decision, returned to Cabinet, 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.[106]
Nash's roles were given to Darren Chester and Mitch Fifield as acting ministers.[107] 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.[108]

With the disqualification of Joyce, the Turnbull government lost its one-seat majority in the lower house.[109] 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.[110] On the following day,

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the National Party endorsed Joyce as its candidate.[111] Joyce was now eligible for election, having renounced his New Zealand
citizenship in August 2017.[112][21]:para 108

The seats of the disqualified Senators will be filled by countbacks of the 2016 Senate election results in their states of Western Australia,
Queensland and New South Wales. Ludlam, Waters, Roberts and Nash are expected to be replaced, respectively, by Jordon Steele-
John, Andrew Bartlett, Fraser Anning and Hollie Hughes.[113] However, there is concern as to the eligibility of Bartlett and Hughes.[114]

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.[115] 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.[116][117]

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.[118] 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".[119]

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.[120] (See
also Re Culleton (No 2) (2017), where the government demanded repayment from Rod Culleton as "a debt to the commonwealth", and
indicated it might include superannuation payments, other entitlements and staff payments.)

Stephen Parry [ edit ]

Following the High Court's judgment on the Citizenship Seven, Stephen Parry, President of the Senate, announced on 31 October that he
was seeking advice from British authorities on whether he holds British citizenship by descent. Parry's father moved to Australia from the
UK in the 1950s.[121] On 1 November, he confirmed his dual citizenship and announced he would be resigning the next day, 2
November.[122] He is expected to be replaced by former Senator Richard Colbeck after a recount.[123] Parry is the first Liberal ruled
ineligible for election in the crisis. On 2 November, Prime Minister and Liberal Party leader Malcolm Turnbull said that he was

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"disappointed" that Parry had not made the matter known "quite some time ago" and in time for his position to be included with the earlier
seven cases.[124]

Other MPs and Senators [ edit ]

In response to the revelations, several other MPs and Senators made statements to clarify their citizenship status, particularly those born
outside Australia or known to have a foreign-born parent.

The following MPs and Senators stated 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.[125][126]
Opposition leader Bill Shorten stated he had previously renounced his British citizenship acquired by descent.[127] He later tabled in
Parliament a letter from the UK Border Agency confirming he renounced his citizenship in 2006.[128]
Rebekha Sharkie, Brian Mitchell, Nick McKim, Josh Wilson,[129] Paul Fletcher and Nigel Scullion, all born in the UK, all stated they
had previously renounced their British citizenship.[130][125]
Senator Mathias Cormann, born in Belgium, clarified that under Belgian law he automatically lost his Belgian citizenship upon
acquiring Australian citizenship in 2000.[125]
Senator Richard Di Natale stated he had renounced Italian citizenship before his election in 2010,[129] and released a 2004 letter from
the Italian General Consulte in Melbourne confirming he was not a citizen.[131]
Ian Goodenough, born in Singapore, stated that the process to renounce his Singaporean citizenship was completed in 2004.[130]
Senator Peter Whish-Wilson, born in Singapore to Australian parents, stated that he has never held dual citizenship.[125]
Tony Zappia, born in Italy, stated he lost Italian citizenship upon becoming an Australian citizen in 1958.[127]
Maria Vamvakinou, born in Greece to Greek parents, stated she renounced her Greek citizenship in 2000.[127]
Labor stated that Deputy Opposition Leader Tanya Plibersek, born in Australia to migrants from Slovenia, does not and has never
held dual citizenship.[127]
Labor stated that Penny Wong, born in Malaysia, renounced her Malaysian citizenship in 2001 prior to nominating for election.[127]
Senator Sam Dastyari, born in Iran, discussed the $25,000 that he spent in legal fees to renounce his Iranian citizenship.[125]
Anne Aly, born in Egypt, confirmed that she gave up her Egyptian citizenship.[125]

Julia Banks [ edit ]

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Concerns were raised that Liberal MP Julia Banks may hold Greek citizenship, as her father had been born in Greece, and some of her
siblings possessed Greek citizenship.[132] The Liberal Party later issued a statement that it had confirmed with the Greek Embassy that
she "is not registered as a Greek citizen and also is not entitled as a Greek citizen".[132] However, although she is not registered as a
citizen, the Labor Party believes this does not adequately address the suggestion that under Greek law she may have automatically
acquired Greek citizenship status at birth.[133][134][127]

Justine Keay, Susan Lamb and Lisa Singh [ edit ]

Labor MP Justine Keay, born in Australia with British citizenship, stated that she had completed the UK Home Office's form to renounce
her British citizenship on 9 May 2016 and that the form had been "officially receipted" by the Home Office on 31 May. Nominations for the
2016 federal election closed on 9 June 2016 and the election took place on 2 July. However, she did not receive the British government's
declaration of the renunciation until 8 July and the renunciation was not registered until 11 July.[135]

Similarly, Labor MP Susan Lamb, born in Australia, received confirmation from British authorities on 23 May 2017, just two weeks before
close of nominations for the 2016 federal election, that she might be entitled to British citizenship through her father. She submitted a
renunciation form on the same day, but has not commented on what date she received confirmation that the renunciation had taken
effect.[136]

The government has also focused, by way of precedent, on Labor Senator Lisa Singh, who was born in Australia to an English mother
and a Fijian-Indian father. She has stated that she applied to renounce her British citizenship on 23 July 2010, six days before
nominations closed for the 2010 federal election. However, according to a letter she received from the British high commission in
Canberra, she ceased to be a British citizen on 18 August 2010. Although her citizenship was renounced in time for the election on 21
August, she had still held British citizenship at the close of nominations.[127] However, she was no longer a dual citizen by the time of the
federal election of 2016.

The 1992 High Court decision in Sykes v Cleary 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
their nationality, although what will be "reasonable steps" will depend on the individual circumstances.

Ann Sudmalis [ edit ]

Liberal backbencher Ann Sudmalis, born in Australia in 1955 of an Australian father and a British mother, sought clarification from British
authorities regarding possible British citizenship. She later stated that the UK Home Office has confirmed that she does not hold and has
never held British citizenshiphowever, it remains unclear whether she may be eligible to register for citizenship by descent.[137][138][139]

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Sudmalis additionally released a document received from the UK Home Office which states there is no record of her having acquired
British citizenship.[128]

Derryn Hinch [ edit ]

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 United States Social Security which he attained whilst working as a foreign
correspondent in the United States for more than 10 years. He stated that he had requested that no pension payments be made to him
once he was elected to the Senate, although he still holds a social security account. Senator Hinch stated that he did not believe that this
constituted entitlement to a right or privilege of citizenship, which could breach s 44(i), but would consult with the Solicitor-General on
whether he should refer himself to the High Court.[140] On 2 September 2017, Hinch stated that he would not seek a reference, since the
Attorney-General had advised him that he was not in breach.[141]

Katy Gallagher [ edit ]

Labor Senator Katy Gallagher, whose mother was a British citizen born in Ecuador to British parents, stated she had renounced her
entitlement to British citizenship by descent. It later emerged that she only renounced in the lead up to the federal election in 2016, a year
after she had first entered Parliament in 2015 following a casual vacancy.[142]

Gallagher has also faced suggestions 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.[143] 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.[144] The ALP
has also obtained advice from an Ecuadorian legal expert and an Australian constitutional lawyer which it states confirmed that Gallagher
is not an Ecuadorian citizen.[145]

New Zealand political row [ edit ]

See also: AustraliaNew Zealand relations

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".[146] Bishop added that she would find it "very hard to build trust" with the New

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Zealand Labour Party if it formed government after that country's general election.[147] Bishop's claim of collusion was rejected by the
New Zealand Minister of Internal Affairs, Peter Dunne,[148] as well as the New Zealand Labour Leader, Jacinda Ardern.[149]

Following the election of the Sixth Labour Government of New Zealand, Bishop said she looked forward to working with Prime Minister
Ardern.[150]

Implications for parliamentary majority [ edit ]

See also: 45th Parliament of Australia

On 15 August 2017, Bob Katter, the founder/leader and sole MP of Katter's Australian Party, 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.[151] 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. Sharkie believed that Joyce and Nash should have stood aside from cabinet until the matter was resolved, and
called Turnbull's decision to keep them in cabinet an act of "disrespect to the Australian community".[152] This leaves only one crossbench
MP, independent Cathy McGowan, who has indicated she will maintain confidence and supply for the Turnbull Government,[153] meaning
that after MP Barnaby Joyce was disqualified from Parliament, the government retained the confidence of a majority of members.
However, the disqualification of any additional government members, or Joyce's defeat in a consequent by-election for his seat of New
England, could prove fatal to a government with a one-seat majority and limited crossbench support.

Australian Conservatives Leader Cory Bernardi suggested that the Parliament be prorogued until the eligibility of members to sit in
Parliament had been ruled on by the High Court and any necessary by-elections had been finalised.[154][155]

References [ edit ]

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AAP. 15 August 2017.

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