The high court will rule on Labor senator Katy Gallagher’s eligibility to sit in parliament on Wednesday morning, a decision that is also likely to indirectly decide the fate of four MPs with dual citizenship issues relying on the same defence.
If Gallagher is ruled ineligible the result is likely to trigger resignations leading to byelections in three Labor-held seats (Braddon in Tasmania, Longman in Queensland and Fremantle in Western Australia) and the Centre Alliance’s sole lower house seat of Mayo, in South Australia.
On Tuesday the manager of opposition business, Tony Burke, said if Labor loses Gallagher’s case it would deal with the result “across the board”, suggesting the opposition will accept it as a precedent for its three MPs.
The prospect of a “super Saturday” string of byelections in the seats – all of which are marginal except Fremantle – shapes up as a key pre-election test for Bill Shorten, who must also defend the seat of Perth after frontbench MP Tim Hammond’s resignation.
Gallagher, Justine Keay, Susan Lamb and Josh Wilson of Labor, as well as the Centre Alliance MP Rebekha Sharkie, all took steps to renounce their dual British citizenship before the nomination date for the 2016 election.
All except Lamb were successful but the renunciations were not processed and did not become effective until after the deadline. Lamb remains a dual citizen because the UK home office would not process the application without a copy of her parents’ birth certificate.
Section 44(i) of the constitution disqualifies people who are subjects or citizens of foreign powers from sitting in parliament.
But in the citizenship seven Re Canavan decision, the high court held that an Australian citizen should not be “irremediably prevented by foreign law from participation in representative government” where they have “taken all steps that are reasonably required by the foreign law to renounce his or her citizenship”.
The constitution
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 suddenly announced he was quitting parliament after discovering he had New Zealand citizenship.
That sparked a succession of cases, beginning with Ludlam’s colleague Larissa Waters, as MPs and senators realised their birthplace or the sometimes obscure implications of their parents’ citizenship could put them in breach.
The Citizenship Seven
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 Barnaby Joyce, deputy leader Fiona Nash and minister Matt Canavan; One Nation’s Malcolm Roberts; and independent Nick Xenophon.
The court found that five of the seven had been ineligible to stand for parliament, 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 face a byelection on 2 December in his New South Wales seat of New England. Joyce renounced his New Zealand citizenship and won the seat again.
Further cases
After the court ruling the president of the Senate, the Liberal Stephen Parry, also resigned on dual citizenship grounds. Then MP John Alexander quit, triggering a byelection in his Sydney seat of Bennelong – which he won. Independent Tasmanian senator Jacqui Lambie became the next casualty and NXT senator Skye Kakoschke-Moore soon followed. Labor MP David Feeney also had to quit, but Ged Kearney won his seat of Batman back for the ALP.
Legal implications
The case of senator Katy Gallagher tested the interpretation relied on by Labor that taking ‘reasonable steps’ to renounce citizenship was enough to preserve eligibility. In May 2018 the high court ruled against her, forcing a further three Labor MPs – Justine Keay, Susan Lamb and Josh Wilson – to quit, along with Rebekha Sharkie of the Centre Alliance (formerly NXT). The major parties have agreed that all MPs and senators must now make a formal declaration of their eligibility, disclose foreign citizenship and steps to renounce it. But the constitution cannot be changed without a referendum.
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Gallagher, Sharkie, Wilson, Keay and Lamb have refused to resign from parliament because they believe their circumstances fit the terms of this exemption.
On behalf of Gallagher, the former solicitor general Justin Gleeson argued in the high court that in every case where a person had taken “all steps reasonably required” by foreign law the exception would apply.
At the hearing in March, Labor’s interpretation was met with scepticism by several justices of the high court. Justice Virginia Bell suggested it denuded the requirement that foreign law must “irremediably prevent” renunciation and it was a “radically different” approach to the precedent case of Sykes v Cleary.
The government and Labor both expect the high court to take a strict approach and disqualify Gallagher because she was not “irremediably prevented” from renouncing her British citizenship.
If Gallagher is found ineligible, her Senate seat would be filled in a recount election by the second Labor candidate for the Australian Capital Territory, David Smith.
The ACT is set to be given a third lower-house seat in a redistribution, which would give Gallagher the option of contesting the preselection for the No 1 spot to take back her Senate seat at the next election, or shift to the third lower-house seat.
Unless the terms of the judgment against Gallagher give reason to think the other four could escape a similar fate, they are likely to resign.
Malcolm Turnbull has said that Keay and Wilson’s cases “will be determined by the Gallagher case because the facts are essentially the same”.
In December the shadow attorney general, Mark Dreyfus, rejected the view that Gallagher’s case would serve as a precedent, arguing each case might have to be decided on its individual facts.
But on Tuesday Burke told Radio National that Labor would wait for the decision but it if it lost the case it “will obviously have to deal with that across the board”.
In the event Gallagher is ruled eligible to remain in parliament, pressure on the four lower house MPs to resign will dissipate, saving taxpayers several million dollars in byelection costs and Labor the embarrassment of losing three MPs, even if only temporarily.
