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You can find the current article at its original source at https://www.theguardian.com/australia-news/2018/may/09/dual-citizenship-high-court-rules-labor-senator-katy-gallagher-ineligible
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| Dual citizenship crisis: four MPs resign after court rules Katy Gallagher ineligible | |
| (about 1 hour later) | |
| A high court decision ruling Labor senator Katy Gallagher ineligible to sit in parliament has triggered four MPs - including three Labor MPs - to resign over dual citizenship issues. | |
| On Wednesday the high court unanimously held that Gallagher is ineligible because she failed to renounce her British citizenship by the nomination deadline before the 2016 election. | |
| Three Labor MPs Josh Wilson (Fremantle, Western Australia), Justine Keay (Braddon, Tasmania) and Susan Lamb (Longman, Queensland), as well as the Centre Alliance’s Rebekha Sharkie (Mayo, South Australia) resigned within hours, accepting the Gallagher case as a precedent because they had relied on the same defence. | |
| The four MPs - who all committed to stand at byelections - delivered statements outlining the steps they had taken to renounced British citizenship before the 2016 election. | |
| In Gallagher’s case the high court had adopted a strict approach to the constitutional bar on foreign citizens sitting in parliament, clarifying that taking “all steps reasonably required” is only a defence where foreign law “irremediably prevents” the Australian citizen renouncing foreign citizenship. | |
| That would require an “insurmountable obstacle” to renouncing foreign citizenship, five justices said in a joint decision. The court held there was no such irremediable impediment for Gallagher and found that the requirements of UK law could not be described as onerous. | That would require an “insurmountable obstacle” to renouncing foreign citizenship, five justices said in a joint decision. The court held there was no such irremediable impediment for Gallagher and found that the requirements of UK law could not be described as onerous. |
| 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 Shorten, who must also defend the seat of Perth after frontbench MP Tim Hammond’s resignation. | |
| Before the resignations the attorney general, Christian Porter, said that all four MPs were dual citizens of Britain at the election and “must resign”. | |
| The government leader in the house, Christopher Pyne, said the decision was “unambiguous” and “the idea that this leaves any room for manoeuvre on the Labor side is quite frankly laughable”. | |
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| Porter noted the high court decision’s joint judgment had warned that reasonable steps to renounce foreign citizenship are “not sufficient”. | |
| In the immediate aftermath of the decision Bill Shorten said he was “deeply disappointed” by the loss of Gallagher from the Senate. The Labor leader claimed the decision set a “new precedent” and said Labor would now study it to consider what “further implications” it may have. | |
| But Porter said the decision “is not a reinterpretation or a change of the law, it is a crisp and crystal clear clarification of the law as it was stated in the Canavan decision last year”. | But Porter said the decision “is not a reinterpretation or a change of the law, it is a crisp and crystal clear clarification of the law as it was stated in the Canavan decision last year”. |
| In a statement Gallagher said she was very disappointed but respected the decision. | In a statement Gallagher said she was very disappointed but respected the decision. |
| “I have always acted on the best available legal advice, which at all times, indicated that I satisfied the eligibility requirements under the constitution,” she said. | “I have always acted on the best available legal advice, which at all times, indicated that I satisfied the eligibility requirements under the constitution,” she said. |
| 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. Unlike Ludlam and Waters, most of those whose dual citizenship was called into question did not immediately quit. | 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. Unlike Ludlam and Waters, most of those whose dual citizenship was called into question did not immediately quit. |
| 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 (equivalent to the Speaker in the lower house), the Liberal Stephen Parry, also resigned on dual citizenship grounds. The shaky majority of the governing Liberal/National coalition was further threatened when MP John Alexander quit, triggering a byelection in his Sydney seat of Bennelong – which he later won. In the meantime, independent Tasmanian senator Jacqui Lambie became the next casualty. David Feeney and Katy Gallagher NXT senator Skye Kakoschke-Moore soon followed. | After the court ruling the president of the Senate (equivalent to the Speaker in the lower house), the Liberal Stephen Parry, also resigned on dual citizenship grounds. The shaky majority of the governing Liberal/National coalition was further threatened when MP John Alexander quit, triggering a byelection in his Sydney seat of Bennelong – which he later won. In the meantime, independent Tasmanian senator Jacqui Lambie became the next casualty. David Feeney and Katy Gallagher NXT senator Skye Kakoschke-Moore soon followed. |
| The loss of the two lower house MPs briefly cost the government its majority, before Joyce and Alexander both re-won their seats in the byelections. The government has agreed with Labor 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, which have a poor record of success. More likely, future representatives will have to abide by the strict interpretation of the high court. | The loss of the two lower house MPs briefly cost the government its majority, before Joyce and Alexander both re-won their seats in the byelections. The government has agreed with Labor 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, which have a poor record of success. More likely, future representatives will have to abide by the strict interpretation of the high court. |
| “To have my place in the Senate end like this today is very deeply disappointing but I believe that I have more to contribute to public life and I will take the time to talk with Labor party members on how I can do this over the months ahead.” | “To have my place in the Senate end like this today is very deeply disappointing but I believe that I have more to contribute to public life and I will take the time to talk with Labor party members on how I can do this over the months ahead.” |
| Gallagher, Sharkie and the three Labor MPs all took steps to renounce their dual British citizenship before the nomination date for the 2016 election. | Gallagher, Sharkie and the three Labor MPs 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. | 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. | 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”. | 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”. |
| Gallagher’s Senate seat will now be filled in a recount election by the second Labor candidate for the Australian Capital Territory, David Smith. | Gallagher’s Senate seat will now be filled in a recount election by the second Labor candidate for the Australian Capital Territory, David Smith. |
| Smith told Guardian Australia he would keep the seat because “we can’t afford to have any interruptions in the representation of the ACT in the Senate” and it was “not a great look” to resign for Gallagher to resume her seat because it would be “seen to be trying to get around the high court decision”. | |
| 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. | 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. |
| Sharkie committed to run for Centre Alliance despite acknowledging an approach from the Liberal Party to run for the governing party. | |
| Porter and Pyne ducked questions about possible reform to section 44, despite Liberal senator Linda Reynolds, who is chairing an inquiry into the section, warning a referendum will be necessary to fix it. | Porter and Pyne ducked questions about possible reform to section 44, despite Liberal senator Linda Reynolds, who is chairing an inquiry into the section, warning a referendum will be necessary to fix it. |
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