Article by Jenny Magee, ABC News – 6 December 2017
Australia has lost nine Senators and two members of the House of Representatives since the July 2016 federal election.
And the uncertainty around citizenship and the eligibility of MPs and senators shows no sign of abating.
How did we get here and what comes next?
RMIT ABC Fact Check takes stock in this fact file.
Until recent events, the last politician to be found ineligible for election to the Commonwealth Parliament was One Nation Senate candidate Heather Hill in 1998.
Ms Hill was ruled ineligible because she held dual citizenship of the United Kingdom and Australia.
But since the 2016 election, 11 Senators or MPs have resigned under a cloud or been found ineligible to sit in Parliament.
How did we get to this point?
Arguably, the saga began when members of the Government sought advice on the status of then Family First senator Bob Day.
Here are the key dates:
Senator Day is contacted by then special minister of state Senator Scott Ryan to discuss issues regarding his electoral office, including rental payments.
Senator Ryan later consults Attorney-General George Brandis and Prime Minister Malcolm Turnbull and obtains legal advice.
The Government refers the question of Mr Day’s eligibility to the Senate for further consideration.
Around the same time, Senator Brandis obtains a legal opinion about the eligibility of One Nation West Australian Senator Rod Culleton, raising it with the then Senate president, Stephen Parry (who has since resigned due to his own ineligibility).
November 7, 2016
Government senators push for the matters to be referred to the High Court.
January 10, 2017
Senator Culleton is removed from the Senate, having been declared bankrupt two weeks earlier.
April 6, 2017
The High Court rules Senator Day’s election invalid due to him having an “indirect pecuniary interest” through his ultimate ownership of a Commonwealth-funded electorate office.
July 14, 2017
Greens senator Scott Ludlam announces his resignation, revealing he is a New Zealand citizen.
“I was naturalised when I was in my mid-teens and assumed that was the end of my New Zealand citizenship,” he says.
Evidence subsequently given to the High Court indicates that Mr Ludlam became an Australian citizen when he was 19 years old.
July 18, 2017
Greens senator Larissa Waters announces her resignation after discovering she is also a citizen of Canada.
Ms Waters was born in Canada to Australian parents, which automatically made her a Canadian citizen under the law at the time.
July 19, 2017
Prime Minister Malcolm Turnbull is highly critical of the Greens, telling Adelaide Radio 5AA:
“It is extraordinary that two out of nine Greens Senators made that mistake.
I mean it’s not as though it’s a secret. It is in the Constitution. That’s one thing, but also when you nominate for Parliament there’s actually a question that says please … tick the box and confirm that you are not in breach of Section 44 and the various provisions that are set out there …
[T]hese two Greens senators were careless and they’ve paid the price for it.”
Mr Turnbull also tells Channel Nine’s Today show that Ms Waters and Mr Ludlam demonstrated “incredible sloppiness” and “extraordinary negligence”.
July 20, 2017
Mr Turnbull tells Melbourne radio:
“I don’t think it is unreasonable for the Constitution to require that if you want to be a Member or a Senator in the Australian Parliament, you should be a citizen of only one country and that’s Australia …
Now why somebody who knew they were born in New Zealand or in Canada would not have said: ‘Gosh, I better make sure I’m not still a citizen,’ why they wouldn’t have turned their mind to it and dealt with it, is beyond me.”
July 25, 2017
Liberal National senator Matt Canavan, the Minister for Resources and Northern Australia, announces he is stepping down as he may be an Italian citizen.
August 9, 2017
One Nation Senator Malcolm Roberts is referred by the Senate to the High Court on the suspicion that he was a British citizen at the time he nominated for Parliament.
August 14, 2017
Deputy prime minister Barnaby Joyce reveals that he may a citizen of New Zealand.
August 17, 2017
Deputy Nationals leader Senator Fiona Nash announces that she may be a British citizen; the matter is referred to the High Court.
August 18, 2017
Crossbench senator Nick Xenophon claims that he may be a British overseas citizen.
September 20, 2017
Justice Patrick Keane of the High Court finds that Malcolm Roberts was a British citizen at the time he nominated for the Senate.
October 27, 2017
The High Court finds that Mr Ludlum, Mr Roberts, Mr Joyce, Ms Nash and Ms Waters were all ineligible to stand for Parliament as they held citizenship of another country at the time they nominated.
October 31, 2017
Senate president Stephen Parry says that he may be a British citizen because his father was one. He resigns from the Senate the following day.
November 11, 2017
Liberal MP John Alexander resigns after days of speculation about his citizenship status, confirming he may be a British citizen by descent (through his father).
The Liberal Party is reported to have obtained legal advice, seen by the media, suggesting that two Labor MPs — Justine Keay and Susan Lamb — and the Nick Xenophon team MP Rebekha Sharkie are ineligible as they did not complete the British citizenship renunciation requirements by the time they nominated.
November 13, 2017
The Senate agrees to create a citizenship register. The deadline for senators to submit declarations regarding their citizenship and background is set for December 1.
November 14, 2017
Independent senator Jacqui Lambie resigns from the Senate, as she is a British citizen by descent.
She says that her grandfather “hadn’t, in fact, renounced” his British citizenship.
Ms Lambie says “This makes my dad a Brit by descent and, therefore, it makes me one too”.
In fact, Ms Lambie’s father was also born in the UK, meaning it was her, not her father, who was a British citizen by descent.
November 22, 2017
Nick Xenophon Team senator Skye Kakoschke-Moore resigns from the Senate.
She is a British citizen by descent — her mother was a British citizen and Ms Kokoschke-Moore was born after January 1, 1983.
Previously, women did not automatically pass British citizenship to daughters born before 1983.
December 4, 2017
The House of Representatives creates its own citizenship register, with members required to provide information about their citizenship and background the following day.
December 6, 2017
Labor senator Katy Gallagher refers herself to the High Court to assess her eligibility to sit in Parliament.
Senator Gallagher’s mother was born in Ecuador to British parents and her father was born in the United Kingdom. She herself was born in Australia.
Documents provided to the citizenship register show she that she lodged an application to renounce her British citizenship with the UK Home Office before the 2016 election, but did not receive confirmation of the renunciation until August 16, two months after nominations closed.
What has been the law?
Section 44(i) of the Australian Constitution deals with the disqualification of members who hold citizenship of another country or have an allegiance to a “foreign power”.
It states that any person who:
(i) Is under any acknowledgment 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 a 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.
Professor John Williams of the University of Adelaide Law School tells Fact Check:
“Section 44 in general is about conflicts of interest. You cannot work for the Government and run for Parliament, you cannot have a financial relationship with the Government, you cannot be a bankrupt (a reflection on your standing the framers assumed), not a convicted person and lastly not a citizen of another country. There is some logic to it.”
Before the current citizenship debacle, the High Court had closely considered section 44(i) on two occasions: the 1992 case Sykes v Cleary and the 1999 case Sue v Hill.
The former is the more important case and was followed closely by the High Court in its recent judgment.
Independent candidate Phil Cleary, previously a schoolteacher, had been elected to the House of Representatives, but his eligibility was challenged on the basis that he had held an office of profit under the Crown (as he was on leave at the time from his government school).
The second-placed (John Charles Delacretaz) and third-placed (Bill Kardamitsis) candidates were Australian citizens, had been born in Switzerland and Greece respectively and had not gone through the formal renunciation processes required by those countries.
The majority of the court (five out of the seven judges, with Justices William Deane and Mary Gaudron dissenting) found that a citizen who is a subject or citizen of a foreign state had to take all reasonable steps under the foreign state’s laws to renounce that nationality, before being eligible to stand for election in Australia.
And what is reasonable?
Justice Daryl Dawson, part of the majority, stated:
“What is reasonable will depend upon the circumstances of the case.
It will depend upon such matters as the requirements of the foreign law for the renunciation of the foreign nationality, the person’s knowledge of his foreign nationality and the circumstances in which the foreign nationality was accorded to that person.”
Justice Deane took a different view, suggesting that an Australian-born citizen should only be disqualified if “he or she has established, asserted, accepted, or acquiesced in, the relevant relationship with the foreign power”.
What is a foreign power?
Since the latest controversy erupted, some have suggested that section 44(i) of the constitution is out of date and should be changed.
Interestingly, it is not the constitution but its interpretation that has changed over time: in the past, the same section 44(i) would probably not have disqualified citizens of Britain or Commonwealth countries such as Canada or New Zealand.
There was no separate Australian citizenship until 1948 and until 1987 Australian citizens continued to be described in law as “British subjects”.
But the law as it stands today, as set out in the 1998 case of Sue v Hill, is that any citizenship of a country other than Australia is citizenship of a “foreign power”.
Professor Kim Rubenstein of the Australian National University Law School has previously told Fact Check:
“A couple of generations ago, members of Parliament would have been able to hold both British and Australian nationality.
“But given the decision in [Sue v Hill], we know at some point this ceased to be the case.”
In its decision, the court could not say precisely when Britain became a “foreign power”, but it accepted that this was probably the case by the mid-1980s.
Professor Anne Twomey of the University of New South Wales Law School has previously told Fact Check:
“The High Court has not so far clarified the time at which the change re: foreign allegiance and the UK was actually made.
“It may be that it can pin it to a date … but because that was unnecessary in Sue v Hill, the justices did not try very hard to get agreement on the date (and did not have that issue fully argued before them).”
“However, this was the factor that aggravated Callinan, as he found it most unsatisfactory that such a change could be made, affecting the rights and status of people, without anyone knowing or being able to identify what had caused it.”
Former MP John Alexander’s situation demonstrates the changing nature of Australian nationality.
Mr Alexander’s father was born in the UK in 1907 and came to Australia around 1910, aged three.
At the time he migrated to Australia (and for the next 41 years), there was no such thing as Australian citizenship.
His British nationality did not make him a foreigner or someone with allegiance to a “foreign power”.
John Alexander’s father may have been able to renounce his British nationality between 1948 and 1951 (the year when his son was born).
But given that both British and Australian nationals at the time were deemed “British subjects”, taking action to renounce British nationality in favour of an Australian one would have been unusual.
The changing legal interpretation of “foreign power” also suggests that had Mr Alexander entered politics in the 1970s when in his 20s, he may have been ruled eligible to stand even while retaining British nationality.
The latest decision
Unlike the earlier decisions on section 44(i), the High Court’s latest decision was a strong and definitive one: there were no dissenting judgments.
Although it was open to the court to decide however it wished, it closely followed the reasoning of the majority in the Sykes v Cleary decision.
The High Court apparently aimed for an outcome that gave certainty and stability.
Some key points:
- The key is the date of nomination. All reasonable steps to renounce other citizenship have to be taken by that date.
Ignorance is no excuse: a person will be caught by section 44(i) even if they were unaware they had dual citizenship. The court said:
“[T]o accept that proof of knowledge of the foreign citizenship is a condition of the disqualifying effect of s 44(i) would be inimical to the stability of representative government.
“Stability requires certainty as to whether, as from the date of nomination, a candidate for election is indeed capable of being chosen to serve, and of serving, in the Commonwealth Parliament.”
A person does not need to have sought out foreign citizenship. The court rejected the view of former Justice William Deane in Sykes v Cleary that section 44(i) should be limited to cases where the “relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned”.
It said “the approach taken by Deane J draws no support from the text and structure of section 44”.
A candidate needs to go to the effort of finding out their citizenship status. The court said:
“[W]hile it may be said that it is harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question; the nomination form for candidates for both the Senate and the House of Representatives requires candidates to declare that they are not rendered ineligible by s44…
“In the nature of things, those facts must always have been knowable.”
“A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the Parliament.”
- Whether a person is a citizen of foreign country is “as a general rule, answered by reference to the law of that country“.
- All reasonable steps have to be taken under the relevant foreign law — it is not enough to make a “reasonable effort”.
Adelaide’s Professor Williams tells Fact Check that he was “not surprised” by this finding.
“The court was mainly responding to an argument put by the Attorney-General that the ‘reasonable’ steps only took hold once you became aware of your entitlement,” he says.
“That argument was firmly rejected.”
The ANU’s Professor Rubenstein, similarly, says she was “not surprised at all”.
“The decision was entirely consistent with Justice Brennan’s judgment in Sykes v Cleary — just a clearer explanation of what was already the law.”
How did Senators Canavan and Xenophon survive?
In essence, Senators Canavan and Xenophon survived because the court concluded that they were not citizens of a foreign power.
Senator Canavan’s entitlement to Italian citizenship arose through his maternal grandparents, who were born in Italy.
Italian citizenship is not bestowed automatically and since Mr Canavan did not complete the registration process, the court found he was not an Italian citizen.
Senator Xenophon does have “British overseas citizenship”, which is a residual citizenship available to some people from former British colonies.
It is of little practical use and does not allow holders to live or work in the UK.
The court found that it did not confer on Senator Xenophon the typical rights of citizenship and did not require him to declare an allegiance to a foreign power.
How did the Government get it so wrong?
If the experts were unsurprised by the result, why did the Government get it so wrong?
Before the High Court handed down its decision, the Prime Minister outwardly demonstrated confidence in a favourable result and on one occasion actually predicted (incorrectly) what the High Court would do.
The Government told the public that it had strong legal advice from the Solicitor-General.
On August 14, Mr Joyce told Parliament:
“The Government has taken legal advice from the Solicitor-General.
“On the basis of the Solicitor-General’s advice, the Government is of the firm view that I would not be found to be disqualified by the operation of section 44 of the constitution from serving as the member for New England …
“Given the strength of the legal advice the Government has received, the Prime Minister has asked that I remain Deputy Prime Minister and continue my ministerial duties.”
In Question Time, Prime Minister Malcolm Turnbull said
“Based on the advice we have from the Solicitor-General, the Government are very confident that the court will not find that the member for New England is disqualified from being a member of this House — very confident indeed.”
And then later, the Prime Minister added “The Leader of the National Party, the Deputy Prime Minister, is qualified to sit in this House, and the High Court will so hold”.
On August 31, the Prime Minister said:
“[B]ased on the advice we have from the Solicitor-General, we are confident that the three ministers and Senators Canavan and Nash and the [Deputy Prime Minister] Barnaby Joyce will be found to be qualified to sit in the Parliament.”
And on Sky News on September 7, Mr Joyce said:
“The Solicitor-General’s advice was, basically, they said you’re more than likely to win.”
What did the Solicitor-General’s advice say?
Either the Solicitor-General’s advice was wrong, or that advice was misrepresented by the Government.
In view of its importance to the citizenship debate, Fact Check lodged a freedom of information request for the document on September 7, 2017.
By law, the Attorney-General’s office had to respond within 30 days of the request (October 8) unless granted an extension of time.
A response arrived on October 30 — three days after the High Court’s decision — with no explanation given for the delay.
Access had been denied on the basis that the advice was subject to legal professional privilege.
Fact Check has appealed the FOI decision to the Australian Information Commissioner, but understands there is a six-month backlog of cases, meaning a ruling on access to the Solicitor-General’s advice would appear unlikely before mid-2018.
There are at least six more politicians under a cloud over citizenship issues: Labor’s Justine Keay, Josh Wilson, Katy Gallagher, David Feeney and Susan Lamb and the Nick Xenophon team’s Rebekha Sharkie.
Based on existing court rulings, candidates in the 2016 federal election needed to have renounced any foreign citizenship by June 9, 2016, the closing date for nominations.
- Ms Keay, a Tasmanian MP, says that her renunciation of British citizenship was received by the UK Home Office on May 31, 2016. However, the UK did not provide confirmation of renunciation until July 11, 2016, which was after the 2016 federal election.
- Mr Wilson, a Western Australian MP, completed a renunciation of British citizenship form on May 12, 2016 and sent it to the Home Office on May 13, however it was only registered on June 24, 2016.
- Senator Gallagher also reportedly made her British citizenship renunciation application prior to June 9, but only received a response in August 2016.
- Ms Sharkie apparently made a renunciation application on April 19, 2016, but only received confirmation on June 29, 2016.
Mr Feeney is in a different situation. According to his statement in relation to citizenship filed with the House of Representatives on December 5, his father was born in Belfast, Northern Ireland, which is part of the United Kingdom.
This means that Mr Feeney may have citizenship of both the United Kingdom and the Republic of Ireland.
Mr Feeney claims to have renounced any entitlement to either citizenship in October 2007, but as at time of writing has not provided any proof of doing so.
For Ms Lamb, a Queensland MP, the situation is different again.
According to her October 2016 maiden speech to Parliament, her father was born in Scotland, UK.
Under British nationality law, she is a British citizen by descent as her parents were married at the time she was born (March 23, 1972).
Ms Lamb claims that she applied to renounce her British citizenship in May 2016 by completing and sending off the required form.
The form itself does not include a section for details of how the applicant obtained British citizenship (for example, by descent).
The British Home Office’s guidance notes for renunciation applications state: “If you have your citizenship or status through descent from a parent or grandparent, you should send documents proving that person’s citizenship or status and your relationship to him or her.”
However, according to Ms Lamb’s statement in relation to citizenship (provided to the House of Representatives citizenship register on December 5, 2017):
- Ms Lamb “did not enclose any evidence with the Form”.
- On or around July 7, 2016 the UK Home Office informed Evan Moorhead, the Queensland State Secretary of the ALP, that “in order to process [Ms Lamb’s] application they required her birth certificate, her father’s birth certificate and her parents’ marriage certificate”.
- On August 1, 2016, Mr Moorhead forwarded the birth certificates of Ms Lamb and her father to the Home Office.
- On August 10, 2016, the Home Office wrote to Ms Lamb refusing the renunciation application. The letter stated that the office “cannot be satisfied from the documents available that you hold British citizenship”.
It has been reported that Ms Lamb could not provide her parents’ marriage certificate as she is estranged from her mother.
However, it is usually possible for a third party to obtain proof of divorce.
It is unclear if Ms Lamb has exchanged any further correspondence with the Home Office, or if she has made any further renunciation attempts since August 2016.
If (as seems likely based on publicly available information) Ms Lamb obtained British citizenship by descent at birth, she continues to be a British citizen until she successfully completes a renunciation through the Home Office.
A spokesman for Ms Lamb would not provide any further clarification beyond her initial public statement, when asked by Fact Check.
Where does the latest decision leave these six parliamentarians?
The court will have to decide whether all reasonable steps have been taken by the six parliamentarians to renounce their foreign citizenship.
In the cases of the Ms Keay, Mr Wilson, Senator Gallagher and Ms Sharkie, there was nothing further that they could do to renounce their British citizenship — all that was left was to wait for confirmation of renunciation from the UK Home Office.
Mr Feeney’s case will likely rest on the evidence he can provide of his purported October 2007 renunciations.
In relation to Ms Lamb, it may come down to whether “all reasonable steps” included efforts to obtain the supporting documentation.
Given that many other politicians have been able to provide such documents to the Home Office — and the High Court found in this year’s case that “reasonable efforts” are not enough — the court may want to see some unique reasons for Ms Lamb’s apparent failure to provide said documents.
What is the Parliament doing?
On November 13, 2017, the Senate agreed to create a citizenship register, with senators needing to provide information about their citizenship and background by December 1.
This information was to include a declaration about the place and date of birth of the senator, their parents and grandparents, and any proof of renunciation of foreign citizenship.
Senators providing false information would be in contempt of the Senate and “shall be dealt with by the Senate accordingly”.
A similar disclosure regime was introduced to the House of Representatives on December 4, with responses due the following day.
The registers will be maintained for all future MPs.
However, the disclosure regime is not expected to protect existing MPs and Senators who failed to comply with section 44 of the constitution.
In these, and subsequent cases, the High Court will remain the final arbiter.
If the Parliament refuses to refer someone to the court, a member of the public can do so, and claim $200 a day for attending the hearing.