Labor has called in the big legal guns in its attempt to save Katy Gallagher’s place in the Senate.
The Australian Capital Territory senator, who referred herself to the high court over dual citizenship concerns in the last sitting week of parliament, will be represented by the former solicitor general Justin Gleeson.
Gleeson came to public notice after a spectacular falling out with George Brandis, when the former attorney general attempted to stop ministers seeking legal advice from Gleeson without his approval.
Gleeson, representing Barnaby Joyce’s political rival Tony Windsor in the October high court case, was largely seen as delivering the argument that scuttled the government’s hopes its interpretation of section 44 would be the one the court upheld. He presented a black-letter view of section 44’s meaning in relation to dual citizenship, which the court ultimately upheld.
The constitution
<p>Section 44 (i) of Australia's constitution bars "citizens of a foreign power" from serving in parliament, including dual citizens, or those entitled to dual citizenship. But the provision was very rarely raised until July 2017, when the Greens senator Scott Ludlam <a href="https://www.theguardian.com/australia-news/2017/jul/14/scott-ludlam-resigns-from-australian-senate-after-finding-out-he-has-new-zealand-citizenship">suddenly announced he was quitting parliament</a> after discovering he had New Zealand citizenship.</p><p>That sparked a succession of cases, beginning with <a href="https://www.theguardian.com/australia-news/2017/jul/18/larissa-waters-quits-greens-senator-dual-citizenship-with-canada">Ludlam’s colleague Larissa Waters</a>, as MPs and senators realised their birthplace or the sometimes obscure implications of their parents’ citizenship could put them in breach. Unlike Ludlam and Waters, most of those whose dual citizenship was called into question did not immediately quit. </p>
The Citizenship Seven
<p>By October, seven cases had been referred by parliament to the high court, which has the final say on eligibility. They were Ludlam and Waters; the National party leader <a href="https://www.theguardian.com/australia-news/2017/aug/14/australias-deputy-pm-barnaby-joyce-revealed-to-be-a-new-zealander">Barnaby Joyce</a>, deputy leader <a href="https://www.theguardian.com/australia-news/2017/aug/17/nationals-deputy-fiona-nash-referred-to-high-court-over-citizenship">Fiona Nash</a> and minister <a href="https://www.theguardian.com/australia-news/2017/jul/26/matthew-canavans-dual-citizen-account-questioned-by-italian-immigration-experts">Matt Canavan</a>; One Nation’s <a href="https://www.theguardian.com/australia-news/2017/sep/21/malcolm-roberts-citizenship-court-one-nation-brisbane">Malcolm Roberts</a>; and independent <a href="https://www.theguardian.com/australia-news/2017/aug/19/nick-xenophon-will-go-to-high-court-after-finding-out-he-holds-dual-citizenship">Nick Xenophon</a>. </p><p>The court <a href="https://www.theguardian.com/australia-news/2017/oct/27/high-court-rules-barnaby-joyce-and-four-others-ineligible-in-dual-citizenship-case">found that five of the seven had been ineligible to stand for parliament</a>, exonerating only Canavan and Xenophon. That meant the senators involved had to be replaced by the next candidate on the ballot at the 2016 federal election, while the sole lower house MP – Joyce – would <a href="https://www.theguardian.com/australia-news/2017/nov/04/he-speaks-for-us-why-tamworth-is-oozing-sympathy-for-barnaby-joyce">face a byelection</a> on 2 December in his New South Wales seat of New England. Joyce, who has renounced his New Zealand citizenship, is standing again.</p>
Further cases
<p>After the court ruling the president of the Senate (equivalent to the Speaker in the lower house), the Liberal Stephen Parry, also <a href="https://www.theguardian.com/australia-news/2017/oct/31/senate-president-stephen-parry-says-he-may-hold-dual-citizenship">resigned on dual citizenship grounds</a>. The shaky majority of the governing Liberal/National coalition was further threatened when <a href="https://www.theguardian.com/australia-news/2017/nov/11/citizenship-crisis-john-alexander-resigns-and-triggers-byelection">MP John Alexander quit</a>, triggering a <a href="https://www.theguardian.com/australia-news/2017/nov/19/kristina-keneally-says-bennelong-byelection-a-referendum-on-turnbull-government">byelection on 16 December in his Sydney seat of Bennelong</a>. The independent <a href="https://www.theguardian.com/australia-news/2017/nov/14/jacqui-lambie-to-quit-senate-owing-to-dual-citizenship">Tasmanian senator Jacqui Lambie</a> became the next casualty. David Feeney and Katy Gallagher <a href="https://www.theguardian.com/australia-news/2017/nov/22/skye-kakoschke-moore-nxt-senator-resigns-over-dual-citizenship">NXT senator Skye Kakoschke-Moore</a> soon followed. </p><p><br></p>
The implications
<p>The loss of the two lower house MPs <a href="https://www.theguardian.com/australia-news/2017/nov/20/government-accused-avoiding-revolt-parliamentary-sitting-week-cancelled">cost the government its majority</a>, pending the outcome of the byelections. The government has agreed with Labor that all MPs and senators must now <a href="https://www.theguardian.com/australia-news/2017/nov/13/one-nation-boilover-citizenship-deal-and-new-senate-president-share-roiling-day-in-politics">make a formal declaration of their eligibility</a>, disclose foreign citizenship and steps to renounce it. But the constitution cannot be changed without a referendum, which have a poor record of success. More likely, future representatives will have to <a href="https://www.theguardian.com/australia-news/2017/oct/28/high-courts-citizenship-message-is-clear-you-have-been-warned">abide by the strict interpretation of the high court</a>.<br></p>
The judgment resulted in Coalition MPs Joyce, and later John Alexander, facing byelections (which they won), and the resignation of Coalition senators Fiona Nash and Stephen Parry.
Labor is hoping Gleeson, working with Maurice Blackburn and James Mack, who is also serving as a junior barrister in the section 44 case against the National party MP David Gillespie, will be able to replicate his success, this time to keep a Labor member in the Senate.
Gallagher stepped down from her additional parliamentary duties this month after the citizenship audit Malcolm Turnbull ordered in the wake of the high court ruling showed she was still a dual citizen at the time of her nomination for the 2016 election.
She maintains she took all reasonable steps to renounce her British citizenship by descent from her father but a four-month delay in processing her form by the UK authorities meant she did not receive confirmation until after the nomination date.
The outcome of Gallagher’s case, which will have its first directions hearing on 19 January in Brisbane, will have ramifications for fellow her Labor colleagues Justine Keay, Josh Wilson and Susan Lamb. A negative finding for Gallagher could lead to a rash of byelections in marginal Labor seats early next year.
The Batman MP, David Feeney, was also referred to the high court after admitting as part of the citizenship audit he could not locate the documents to prove he renounced his British citizenship in 2007.
Guardian Australia understands Feeney will be represented by Noel Hutley SC in his case.
Labor and the Coalition called an uneasy truce over citizenship in the final sitting week of parliament, to ensure the marriage equality legislation could be passed, after the government threatened to use its numbers to refer all Labor members it believed had eligibility doubts.
In return, Labor, working with the crossbench, attempted to refer Coalition members it said had not provided enough detail or documents to be sure of their eligibility, as well as its own in-doubt members. That attempt, taken while Alexander was absent from the house because of his byelection, fell short by one vote in the lower house.
Both major parties are now looking to the high court to clarify its stance on “reasonable steps” in the Gallagher case.
In the meantime, a bipartisan parliamentary committee is examining ways to prevent any further fallout from the section 44 citizenship fiasco, including whether a referendum is needed to change the constitution.
The committee chair, Linda Reynolds, has told the Australian a referendum would be the “cleanest way” to ensure there was no further fallout.
