(Oct. 31, 2017) On October 27, 2017, the High Court of Australia (Australia’s highest court), sitting as the Court of Disputed Returns, issued its decision in a case involving seven sitting members of the federal Parliament (sometimes referred to as the “Citizenship Seven”). (Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon  HCA 45, High Court of Australia website; Press Release, High Court of Australia, In the Matters of Questions Referred to the Court of Disputed Returns Pursuant to Section 376 of the Commonwealth Electoral Act 1918 (Cth) Concerning Senator the Hon Matthew Canavan, Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts, the Hon Barnaby Joyce MP, Senator the Hon Fiona Nash and Senator Nick Xenophon  HCA 45 (Oct. 27, 2017), High Court of Australia website.) The Court found unanimously that five of the seven members, including the Deputy Prime Minister and four senators, were ineligible to be elected to the Parliament due to their possession of dual citizenship at the time of their nomination to stand in the 2016 election, in breach of section 44(i) of the Australian Constitution. That provision states that any person who ”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” is “incapable of being chosen or of sitting as a senator or a member of the House of Representatives.” (Commonwealth of Australia Constitution Act (The Constitution), s 44(i) (compiled on Sept. 4, 2013), Federal Register of Legislation website.)
The referral of the case to the High Court arose following the resignation of a Greens party senator, Scott Ludlam, in July, after he discovered that he had retained his New Zealand citizenship when he became a naturalized Australian citizen. This led to various questions and investigations with respect to whether other lawmakers similarly held a second citizenship. As a result, it was alleged that five other senators from different parties, along with Deputy Prime Minister Barnaby Joyce (a member of the House of Representatives), held a foreign citizenship. A second Greens party senator, Larissa Waters, subsequently resigned her seat upon learning that she had Canadian citizenship. None of the members involved in the case had been aware of their dual citizenship status at the time they were nominated to be elected to the Parliament. (Trevor Marshallsea, How a Dual Citizenship Crisis Befell an Immigrant Nation, BBC NEWS (Aug. 14, 2017).)
The Court considered the meaning and application of section 44(i), finding that the provision
operates to render “incapable of being chosen or of sitting” persons who have the status of subject or citizen of a foreign power. Whether a person has the status of foreign subject or citizen is determined by the law of the foreign power in question. Proof of a candidate’s knowledge of his or her foreign citizenship status (or of facts that might put a candidate on inquiry as to the possibility that he or she is a foreign citizen) is not necessary to bring about the disqualifying operation of s 44(i).
A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged. (Re Canavan, ¶¶ 71-72.)
The application of section 44(i) with respect to each of the seven members was subsequently examined by the Court. This entailed consideration of the citizenship laws of Canada, Italy, New Zealand, and the United Kingdom, including British nationality law with respect to Cyprus. Two of the senators, Matthew Canavan and Nick Xenophon, were found not to be citizens of a foreign power, “or entitled to the rights or privileges of a citizen of a foreign power, within the meaning of s 44(i), and therefore neither was disqualified by reason of that provision.” (Press Release, High Court of Australia, supra.) Each of the other five members was found to have a foreign citizenship:
- Barnaby Joyce was held to have New Zealand citizenship because, although his New Zealand-born father had renounced his New Zealand citizenship, this had not occurred prior to Joyce’s birth, and therefore Joyce remained a citizen by descent.
- Scott Ludlam was born in New Zealand and later became a naturalized Australian citizen several years after his family moved to Australia. He had not renounced or otherwise lost New Zealand citizenship under New Zealand law.
- Larissa Waters automatically acquired Canadian citizenship by being born in that country to Australian parents and had not renounced her citizenship.
- Malcolm Roberts was born in India to a Welsh father and Australian mother. Due to his father’s nationality, he was born a “citizen of the United Kingdom and Colonies” and then became a British citizen by descent under the British Nationality Act 1981 (UK).
- Fiona Nash was born in Australia to an Australian mother and Scottish father. She was therefore also a citizen of the United Kingdom and its colonies by descent at birth. (See Elizabeth Byrne, Citizenship Seven: Here’s How the High Court Rules in Each of the Cases, ABC NEWS (Oct. 27, 2017).)
As a result of Joyce’s disqualification from sitting in Parliament, the governing Coalition currently holds just 75 seats in the 149-member House of Representatives, although one of those seats is held by the speaker, who does not vote. However, an independent member, Cathy McGowan, has indicated she will back the government in Parliament, meaning that the Prime Minister and current government can remain in place. Joyce will run for election again in a December 2, 2017, byelection, having now renounced his New Zealand citizenship. (Paul Karp, High Court Citizenship Case: Barnaby Joyce and Four Others Ruled Ineligible, GUARDIAN (Oct. 27, 2017); James Massola, High Court Citizenship Verdict: Barnaby Joyce Facing Byelection in Hammer Blow to Turnbull Government, SYDNEY MORNING HERALD (Oct. 28, 2017); Barnaby Joyce to Face By-election after High Court Ruling; Roberts, Nash also Booted out of Parliament, ABC NEWS (Oct. 28, 2017).)