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| Citizenship case: Labor enlists legal firepower in bid to save Katy Gallagher | Citizenship case: Labor enlists legal firepower in bid to save Katy Gallagher |
| (about 1 month later) | |
| Labor has called in the big legal guns in its attempt to save Katy Gallagher’s place in the Senate. | 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. | 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 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. | 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. |
| 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. | 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. | 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. |
| 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. | 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. | 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. |
| 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. | 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. |
| 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. | 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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| 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. | 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. |
| Dual citizenship and the 'reasonable steps' test for Australian MPs – explainer | Dual citizenship and the 'reasonable steps' test for Australian MPs – explainer |
| 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. | 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. | 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. | 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 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. | 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. | Guardian Australia understands Feeney will be represented by Noel Hutley SC in his case. |
| Labor MPs don't see Katy Gallagher as citizenship test case, Dreyfus says | Labor MPs don't see Katy Gallagher as citizenship test case, Dreyfus says |
| 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. | 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. | 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. | 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. | 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. | The committee chair, Linda Reynolds, has told the Australian a referendum would be the “cleanest way” to ensure there was no further fallout. |
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