Breaking: High Court disqualifies Joyce, Nash, Roberts, Ludlam and Waters

27 October 2017

Breaking: High Court disqualifies Joyce, Nash, Roberts, Ludlam and Waters

Photo credit: Alex Proimos (Flickr) — CC BY 2.0 licence

The long awaited High Court judgement on the so-called “Citizenship Seven” has disqualified Deputy Prime Minister Barnaby Joyce, Senators Fiona Nash and Malcolm Roberts, and former Senators Scott Ludlum and Larissa Waters from Parliament. Senators Nick Xenophon and Matthew Canavan have not been disqualified.

A by-election will now need to be held for Joyce’s electorate of New England, which will most likely take place early December. The Senate vacancies will be filled with a special count of the ballots from the last federal election.

The Government has now lost its one seat majority in the House of Representatives.

The High Court held that section 44(i) of the Constitution, which disqualifies individuals with multiple citizenships from being elected, must be given its textual meaning so long as the foreign law conferring citizenship does not prevent Australian citizens from participating in government if they have taken reasonable steps to nullify or renounce their citizenship. In short: section 44(i) will not apply if it would undermine the system of government established by the Constitution.

In its unanimous decision, the Court stated that no proof of actual allegiance is required when it comes to disqualifying a foreign citizen or national. The Court disregarded the suggestion that knowledge should be a requirement for disqualification on the basis that it would be a substantial departure from the text, would be hostile to stable government, and would require the Court to determine how much knowledge is sufficient despite the absence of non-arbitrary reference points.

Whether or not a person is a foreign citizen must instead be determined by looking at the law of the foreign state in question. The Court said that a person who does not know they are a foreign citizen does not take reasonable steps to nullify their citizenship by simply doing nothing.

What steps are available will depend on the individual, the foreign law, and the connection between the individual and the foreign state. While acknowledging obstacles may exist in some cases, all of the “Citizenship Citizen” were able to take steps to effectively renounce citizenship.

Senator Canavan and his parents were born in Queensland, but his maternal grandparents were Italian migrants. In July 2017 his mother told him he may have become an Italian citizen in 2006, when she applied to claim it. Canavan promptly renounced his citizenship.

Expert witnesses testified that although Canavan’s mother was not an Italian citizen when she was born, a 1983 decision of the Italian Constitutional Court changed this. However, it is apparent that positive steps are required to “activate” Italian citizenship, and while Canavan was eligible to do so, he did not. Canavan was not disqualified as a result.

Former Senator Ludlam was born in New Zealand and became a naturalised Australian citizen in 1989, believing from then on he was solely an Australian citizen. He was tipped off that he may be a New Zealand citizen in July 2017, which was subsequently confirmed by the New Zealand High Commission. Ludlam then resigned from the Senate. An expert witness testified that Ludlam was a New Zealand citizen at the time he nominated for election, and was therefore ineligible for election.

Former Senator Waters was born in Canada to Australian parents and her birth was registered with the Australian High Commission in Ottawa. Her family left Canada when she was an infant, and she believed she was solely an Australian citizen. Waters has never held a Canadian passport, visited Canada since emigrating, sought or received government assistance from the Canadian Government, or exercised rights as a citizen.

Waters made enquiries after Ludlam resigned and concluded she had Canadian citizenship. Following her resignation from the Senate on 18 July, she renounced her citizenship on 27 July 2017. Expert witnesses testified that Waters was born at a time when anyone born in Canada was automatically a citizen, and was therefore ineligible for election.

Senator Roberts’ father was born in the United Kingdom, moved to India, visited Australia and married an Australian, then returned to India where Senator Roberts was born. His name was recorded in the High Commissioner’s Record of Citizens of the United Kingdom and Colonies. The Australian Trade Commissioner made an entry on Roberts’ mother’s passport to allow him to travel, which stated that he had not acquired Australian citizenship.

Roberts was naturalised as an Australian citizen in 1974. Expert witnesses testified that he was a citizen of the United Kingdom by descent from his father. He ceased to be a citizen of the United Kingdom on 5 December 2016 after renunciation, but was ineligible for election.

Barnaby Joyce MP was born in New South Wales, but his father was born in New Zealand and naturalised as an Australian citizen in 1978. Joyce believed he was solely an Australian citizen, but after enquiries from the media he sought advice. The New Zealand High Commissioner and expert witnesses advised that Joyce was a New Zealand citizen. Joyce renounced his New Zealand citizenship on 18 August 2017, but was ineligible for election.

Senator Nash was born in New South Wales, but her father was born in Scotland. Nash sought advice after Joyce’s citizenship was called into question. The British Home Office advised her that she was a British citizen on 14 August, which was confirmed by separate legal advice on 17 August. Despite having no previous knowledge, nor having visited the United Kingdom or sought or received privileges associated with citizenship, she was ineligible for election. She renounced her citizenship on 18 August 2017.

Senator Xenophon was born in South Australia to a Cypriot father and a Greek mother, and acknowledges his strong Hellenic heritage. His parents naturalised and renounced all foreign allegiances, and as a precaution he also renounced any entitlement to Cypriot or Greek citizenship prior to nomination. He is not a citizen of either Cyprus or Greece.

However, at the time of Xenophon’s father’s birth Cyprus was a British possession. It was confirmed that Xenophon had British Overseas Citizenship, which he renounced on 25 August 2018. He has never been issued with a British Overseas Citizen passport or received consular protection, and an expert witness testified that British Overseas Citizens do not in fact have rights and privileges associated with the term “citizen” as it is generally understood. The Court held that Xenophon was not a foreign citizen.