Wednesday, August 2, 2017

More Section 44 Cases In Spotlight

A very long time ago now two Greens Senators resigned after discovering they were dual citizens.  The Senate will refer their cases to the Court of Disputed Returns (typically the High Court) which will determine whether they were eligible to have been elected in the first place and, assuming that they weren't, will initiate a "special count" to fill their places.  In the weeks since then, however, many more MPs have come under the spotlight of the dual citizenship rule in Section 44 of the Constitution, and it's unlikely it has claimed its final victim yet.

The Constitution is very black and white about dual citizenships - section 44 says that if you are a citizen of another country, you are not eligible to be chosen or to sit in Parliament.  It doesn't seem to allow any ifs or buts about all that.  However, the High Court in Sykes v Cleary [1992] found that the Constitution was unrealistic and had to be "read down".  After all, if it were that straightforward then another nation could maliciously impose citizenship on Australian MPs and refuse to withdraw it.  Alternatively, for a given citizen of a given nation, procedures for getting rid of an unwanted citizenship might be unrealistically expensive, time-consuming, slow, dangerous, unreliable or unreasonable.

The Sykes v Cleary judgement is a difficult one to apply to the many examples now being discussed because there are five separate statements of decision (one by three judges and four individual statements).  Basically, all the judges agreed that there was a need to "read down" the Section 44 requirement, but they did not all agree on how far to go.  Two of the seven considered that a statement under Australian law renouncing all other allegiances (eg during a naturalisation ceremony) was potentially enough by itself (with various qualifiers); the other five disagreed.  The other five went for various versions of "reasonable steps" or "all reasonable steps" to renounce citizenship by application to the overseas country as the test.

Those applying some version of a "reasonable steps" test (beyond naturalisation oaths) did not spell out the minimum conditions for the test to be met.  They merely made it clear that if someone had taken all reasonable steps to renounce citizenship before contesting,  then that person did not need to have succeeded in that attempt to have passed the test.

There are so many MPs who were either born overseas or may have inherited dual citizenship that it isn't practical to comment here upon them all.  Many cases may appear suspicious, but it may simply be that the MP has well and truly renounced and has yet to publish proof.  At this stage there are three cases that have been referred and two that realistically could be.  I may add to the list below as and when more facts come out about others.

Senators Scott Ludlam (Green, WA) and Larissa Waters (Green, Qld)

Status: Resigned and referred

These Senators have already resigned and it is expected that the High Court will find them to have not been validly elected in the first place, and therefore order special counts (see the earlier article).  The High Court in Sykes v Cleary showed little if any sign of caring whether or not an MP knew they were a dual citizen, with the taking of steps to remove dual citizenship being seen as the key test.  Neither Ludlam or Waters took any steps, so it appears they are in exactly the same boat as Phil Cleary's two ineligible opponents in his disallowed by-election win.  The High Court would have to substantially revisit Sykes v Cleary to allow the Greens to fill either of these positions by casual vacancy.

Electoral ramifications were covered in the earlier article.

Senator Matt Canavan (LNP, Qld)

Status: Referred, resigned from Cabinet, not voting

Canavan has resigned from Cabinet and his case will be referred.  Canavan was born in Australia but is recorded as an Italian citizen, according to him through an application made by his mother without his knowledge or consent.

On the surface, Canavan is in very serious trouble because he also took no steps to renounce.  If the leading judgement in Sykes v Cleary is followed, then his diminished connection to Italy compared to someone born there could mean the "reasonable steps" required are less onerous, but it doesn't remove the requirement to do something.  So Canavan is relying on something like the following happening:

* The High Court creates a new exception for cases where a person acquires citizenship of another country without their knowledge.
* The High Court rules that "reasonable steps" are not required for citizens by descent who passively acquire citizenship but have made no actual use of it.
* There is some determination that the application in Canavan's name to be an Italian citizen was invalid in the first place and hence that he was actually never a citizen.

In the event that Canavan is disqualified, his special count instead elects recent former Senator Joanna Lindgren (see Grahame Bowland's simulations).  This situation raises similar Section 282 problems (earlier article, again - and see discussion in comments) to the Scott Ludlam countback in that Lindgren would appear to get a six-year term, despite being lower on the original ballot than Senators Macdonald and O'Sullivan (who each got three year terms.)

If Canavan is found to have been validly elected, he will be free to continue his career and may well be restored to Cabinet.

Senator Malcolm Roberts (One Nation, Qld)

Status: Referred

Warning: this section has been rated Wonk Factor 4/5 on the grounds of containing discussion of obscure points of electoral law.

At the time of writing Roberts has not yet been referred to the High Court although referral looks likely (UPDATE 9/8: Roberts has now been referred) given that it has sufficient crossbench support that only one major party would need to support the referral for it to pass.  Roberts' situation based on material in the public domain so far (some of it only his own claims) appears to be:

* he appears to have been a British citizen by descent because his father was born in Wales
* he contacted the British consulate enquiring as to whether he was a British citizen from May 1 2016
* he contacted the British consulate on June 6 2016 (three days before the close of nominations) advising that if he was a citizen of Britain, then he renounced it
* after further correspondent - the nature of which is unclear - he received confirmation of renunciation in December 2016, five months after the election.

Roberts has displayed a very strange attitude to legal correspondence before so it should not be assumed that things are necessarily as they seem.  His position might be much stronger or much weaker than he makes out.  The large number of contradictory statements he has so far made suggests the latter, but we'll see.

If the above is all accurate then Roberts did at least take steps to renounce before the election (unlike Canavan), but the court would have to consider whether these steps were sufficient to count as "reasonable".  In particular, does Roberts' June 6 contact even count as a formal attempt to renounce (there is no indication it was on the proper form)?  Assuming the steps that Roberts took were adequate in isolation, does taking all reasonable steps to renounce citizenship also entail that those reasonable steps are taken far enough in advance of the election to succeed before nominations close?  Or does this place too much of a burden on candidates in terms of how far ahead of an election they need to commit themselves to running?

If Roberts is found to have been ineligibly elected, his seat at a special count would, all else being equal, won by third One Nation Queensland candidate Fraser Anning.  The fact that Anning polled a massive nineteen primaries (second-last on the entire Queensland ballot) is irrelevant as in this case Anning would get Pauline Hanson's surplus.  An Anning victory, however, creates further complications because, as discovered by @swearyanthony on Twitter (which somehow qualifies as a Fairfax "exclusive"), Anning is currently facing bankruptcy proceedings (with a hearing as soon as August 22).  If Anning becomes bankrupt, he will lose the right to sit in the Senate while that is the situation.

Depending on the pace of the various cases, one possibility would be Anning winning the special count, serving for a short period, and then creating a casual vacancy to be filled by the party (including potentially by Roberts ... or for that matter James Ashby) The murkier prospect is if Anning becomes bankrupt before the HCA has finished with the Roberts matter.  Antony Green has said that a vacancy for Anning in this case would be treated as a casual vacancy (Section 15), and certainly this seems most intuitively consistent with what would normally happen with a mid-term vacancy.  However in this case Anning's position would be vacant not during his term of service but before it commenced.  Stephen Murray has written a very detailed piece giving many reasons why the Court could decide to exclude an ineligible candidate from a special count.

The transcripts of the Day case concerning Lucy Gichuhi may also be of some interest here.  Mr Kirk (appearing for Anne McEwen (ALP)) argued that if the High Court does seat an ineligible Senator as a result of a special count, then the decision appears to be final and beyond challenge; therefore, the court should assess challenges to ineligible prospective Senators before allowing them to win special counts.  Justice Nettle acknowledged that this was a possible issue, before disallowing the challenge to Gichuhi's eligibility from the McEwen team on the grounds that the challenge had been made too slowly and in any case appeared to have no prospect of success.

It's clear that a candidate who is not eligible at the original election is also not eligible for special counts  arising from it - indeed if they were, then in theory Rod Culleton could patch up his eligibility and have himself returned to the Senate on the special count for Scott Ludlam.   What is less clear is whether a candidate who has become ineligible in the meantime can contest a special count when they are not even eligible to sit in the Senate - and whether the High Court should treat it as analogous to a casual vacancy case or by special count if they cannot.  I think that remedying it as if a casual vacancy for the ineligible special count winner would be fairest in terms of respecting the will of the voters in the original election based on their view of the candidates who were then eligible to stand.

Simulations by Grahame Bowland have confirmed that even if the special count process leads to a countback that is minus four (!) candidates, One Nation's last line of defense Judy Smith would win Roberts' seat.  An oddity of the simulation is that although candidates Roberts and Anning polled only 96 below the line votes between them, removing both makes Smith's final position a whopping 2877 votes' weaker than Roberts'.  Moreover, this isn't just a case of voters marking Roberts' box and then stopping or making a mistake rather than following on to Anning and Smith - most of these lost votes are "leaking" to candidates outside the One Nation list before, in most cases, exhausting.  This is also happening on preferences arriving with Roberts from across the board - and mostly not One Nation votes.  I would not be too surprised if there is some form of geometric proximity-preferencing at work here, such that voters voting below the line who vote across parties for known names are more likely to stay high in the party lists rather than preferencing those well down them.  There may also be some horizontal "donkeying" at work.

Barnaby Joyce MHR (Nat, New England)

Status: Referred

Nationals leader and Deputy Premier Barnaby Joyce's father was born in New Zealand and preliminary advice is that he "may be" (ie probably is) a citizen of New Zealand by descent.  There is no indication he was aware of this or has taken any steps to either register that citizenship or renounce it.  Joyce has been referred by the House of Representatives to the High Court although the Government claims to be confident that he will retain his position.  On what basis they are so confident I am not sure.  If Joyce is declared ineligible, there will be a by-election for his seat, in which he fairly comfortably defeated independent former MP Tony Windsor last time.

Update: Contrary to advice from the earliest media enquiries, Joyce was found to be a citizen of New Zealand, though he has now renounced.  He will be reliant on the High Court creating some new exception, possibly following the Deane minority judgement precedent.

Senator Fiona Nash (Nat, NSW)

Status: To be referred

Nash's position appears to be similar to Joyce in that she has a Scottish father and therefore appears to be a UK citizen by descent.  Nash, like Joyce, is refusing to stand aside from the ministry but it will be interesting to see how that flies in the Senate where the Coalition doesn't have the numbers.

If Nash is ineligible, her countback will elect Liberal Hollie Hughes.  Nash was third on the Liberal-National combined ticket and has been elected for a six-year term.  If Nash is forced to vacate her seat, then if Hughes served out her term that would mean the Nationals lost a seat to the Liberals, who would gain a six-year seat (well, what's left of it) in the process.  The same would also apply if a revised order of election were preferred, except in this case Concetta Fierravanti-Wells would be upgraded.

Senator Nick Xenophon (NXT, SA)

Status: To be referred

Xenophon's father was born in Cyprus while it was a British colony and travelled to Australia on a British passport.  His mother was born in Greece and Xenophon has renounced Greek and Cypriot citizenship but not British, as he was not aware he had it.  If he is found ineligible his six-year term (absent of any rearrangement by the Senate) would go to the NXT number four candidate Tim Storer.  It is in theory possible given Xenophon's large below-the-line vote that this recount could unelect Lucy Gichuhi. I'm confident it doesn't, but a full simulation would confirm that it doesn't.

Xenophon's overseas citizenship is according to him "useless" in terms of actual benefits conferred that are not already available as an Australian citizen.  That Xenophon's father was apparently fleeing British control but doing so on a British passport makes the case especially bizarre.

Justine Keay MHR (ALP, Braddon)

Status: Not yet referred

At the time of writing Keay has not been referred to the High Court and no discussion of intention to refer her (which the Government could do alone using its numbers in the lower house) has been seen.  Based on material made public on Wednesday, Keay's situation appears to be:

* she appears to have been born with British citizenship through her late father
* she sent the appropriate renunciation form and passport on 13 May, it was delivered on 23 May and officially receipted on 31 May (all 2016)
* however the UK did not register the renunciation of citizenship until 11 July (apparently meaning she was still a dual citizen at the time of the election)

Keay's position appears to be much stronger than Roberts' in terms of having completed her end of formalities properly well prior to the close of nominations.  The only, but perhaps serious, question remaining in her situation (if the facts are as stated) is whether the Court might still rule that a candidate must take all reasonable steps to renounce their citizenship in time, and that this includes applying in enough advance to allow for normal processing time at the other end.

If any MHR is declared ineligible subject to Section 44, this triggers a by-election for their seat, which they can recontest if they are eligible.  It is received wisdom that electors disapprove of by-elections based on technical grounds and respond by returning the disqualified MP.  However, this has not been tested often, and the best-known test (Jackie Kelly) came at a time when the new government was riding well above its election result in the polls.  It is improbable that Labor would lose any by-election to the government in such a case, but independent raids could be another matter.

A note re Julia Banks MHR (Lib, Chisholm)

In the above cases we know there is an arguable case of ineligibility - how strong or weak it might be being beside the point. I've wavered about giving Banks a section on a similar level to the others but decided that I'll only include MPs in the main list above if there is a clear basis for an argument for ineligibility - not just speculation.  There are many MPs who have not yet proven they are eligible by releasing documents.

Banks was born in Australia but her father was born in Greece.  People in this circumstance acquire Greek nationality (though at one point it is translated as citizenship) but have to apply for registration as citizens to become a "Greek Citizen".  The language is all rather baffling - it seems one can be a Greek Citizen who hasn't exercised a Right to Citizenship.

The Banks matter seemed to have been defused by a Liberal Party statement that the Greek embassy had said "that according to records, Julia Banks is not registered as a Greek citizen and also is not entitled as a Greek citizen".  However the language "entitled as a" is a bit odd and the statement has led to Labor questions about whether/when Banks renounced her supposed entitlement.  Also, all language used in these matters is being scrutinised for what it doesn't say more than for what it does - the statement doesn't establish that Banks has never been a Greek citizen or entitled to be one, only that she isn't one now.

The entitlement part comes from Section 44 including the words "entitled to the rights or privileges of a subject or a citizen of a foreign power", raising questions of whether someone is "entitled" to those rights if they would need to go through a process to activate them but, as apparently in Banks' case, haven't done so.  There is also the question of whether one can renounce an entitlement that isn't active (and what happens if one later wants it back).  These questions are outside my expertise.

MPs The Coalition Has Threatened To Refer

On Monday 14 August, Prime Minister Turnbull asked Opposition Leader Bill Shorten if he was willing to cooperate for the sake of convenience by referring any Labor MPs over whom doubts exist, allowing the High Court to hear all cases together.  Shorten refused, and during Question Time Labor moved that Barnaby Joyce not be heard and then also moved that standing orders be suspended to deal with the matter of Joyce not standing aside from cabinet.  (Both motions failed.)

As well as Keay, Leader of the House Christopher Pyne has now threatened that the government could refer other Labor MPs to the High Court if Labor continues trying to exploit the Joyce situation.  Those named are:

* Susan Lamb (Longman, Qld) - British father
* Tony Zappia (Makin, SA) - Born in Italy
* Maria Vamvakinou (Calwell, Vic) - Born in Greece
* Brendan O'Connor (Gorton, Vic) - Born in UK

No positive evidence that any of these MPs could be ineligible is known to me, however they have also not proved that they renounced dual citizenships before the election.  (See statement from Zappia.)

A note re Senator Nick McKim (Greens, Tas)

Senator Nick McKim (Greens, Tasmania) will presumably be taken off all reasonable suspects lists because he has presented evidence that his form was received by the Home Office in August 2015. He has not revealed exactly when his citizenship was formally cancelled, but even if the Home Office somehow then took most of a year to process the form, it could hardly be said he had not taken all reasonable steps to be available for the 2016 election.  In fact, McKim undertook these steps in preparation to serving a casual vacancy created by the retirement of Christine Milne, and his form was received five days before he commenced serving in the Senate.  All that is irrelevant now since it is only his place in the Senate as a result of winning in the last election that can still be referred.

McKim's eligibility is scarcely surprising, but will nonetheless be a relief to the Greens who could ill afford to lose any more Senators, but particularly not this one.  Because of the high rate of below-the-line voting in the Tasmanian Senate and the extremely close final seat result, it is very likely (although this hasn't been confirmed by testing) that a special count for either of the two Tasmanian Green Senators would see a seat lost to One Nation.  Indeed, the Greens would have reason to be nervous about any eligibility issues involving non-Green Senators elected in Tasmania, because it is in theory possible that a special count for some other Tasmanian Senator could "unelect" McKim.  (What the High Court would make of that is anyone's guess).  However, it does not currently appear (the huffing and puffing of an army of wishful "Abetz birthers" notwithstanding) that any Tasmanian Senators have eligibility issues.

A note about the government's majority

One of the government's MPs, David Gillespie (Nat, Lyne), is already facing challenge under another part of section 44 relating to conflicts of interest.  This, together with fleeting speculation about the citizenship of Julia Banks (Lib, Chisholm) (edit: and now Joyce) has led to more and more references to the government being at risk of collapsing should it lose a seat in the Reps.

In fact, such an event would be embarrassing, but almost certainly not fatal by itself.  In the days after the last election, the government received understandings on confidence and supply from three of the five crossbenchers - Bob Katter, Cathy McGowan and Andrew Wilkie.  Even if these assurances were withdrawn (Update 14 Aug: Katter's has now been withdrawn, for Wilkie see below), it seems unlikely the crossbench would unanimously decide to bring down the government and force an election. Such an election would see a landslide Labor win would consign the crossbench to irrelevance (quite aside from the ramifications for some of their own seats).

(Note: Wilkie's assurance on confidence and supply was qualified - he said he would not vote against confidence and supply unless "clearly warranted").

Moreover, looking at the voting record of the crossbench thus far, there would be relatively few issues of substance on which the loss of one seat would cause the government to lose the vote.  In theory, a crossbench gangup might see a bill pass through the House of Representatives and Senate against the government's wishes, most likely on banking reform, but if this only happened because the Speaker did not have a vote then there would be some case for advising the Governor-General not to sign the bill anyway.

There is, however, potential for the crossbench to exert pressure to bring about Joyce and Nash standing aside from the ministry until their status is resolved.

Section 44 Suspects (Other Than Citizenship)

Status: Gillespie being sued by "common informer"

I mentioned Gillespie above - he is being sued by his Labor opponent as a "common informer", which if successful entitles the plaintiff to a princely $200 for each day the ineligible member sits.  There is some unclarity about whether success necessarily unseats that member.  A by-election in Lyne could be unpleasant as it is in theory a safe seat but was formerly held by independent Rob Oakeshott.

Senator Barry O'Sullivan (Queensland) has also been the subject of media reports concerning business investments that may breach conflict of interest provisions, especially following the Day case and its unwinding of the Webster case from the 1970s.  If Canavan and O'Sullivan were both scratched, LNP number 7 out of 8, lawyer Dan Ryan, would step up to the plate.


  1. Thanks Kevin, as always for a Tassie perspective on all things electoral. So Nick McKim is all good federally. But shouldn't he have also met the no 2nd citizenship at a State level 2002 to 2015? Electoral Act, picks up 1934 Constitution Act sections 34&35. Not relevant but still fun :-) It amazes me that the 3 major parties are so loose on what is pretty well established constitutional requirements for candidates - DaveO

  2. On my reading sections 34b and 34c of the Tasmanian Constitution Act 1934 relate only to taking up a dual citizenship one did not already have, or actively acknowledging allegiance in some other way. They do not prevent passively retaining an existing dual citizenship. They don't even necessarily prevent passive acquisition of a new citizenship, provided one was completely unaware of it. It seems though that it wouldn't take much for a dual citizen who was a state MP to say something about their dual citizen status that would get them into trouble under 34b.

    1. Agreed its an oddly word piece of legislation (maybe typical of 1934 era wording?). I delight in the fact that it appears you cannot go mad in office and stay, but appear to be quite fine to be elected mad. It would certainly make for a nuanced defense - 'I am no madder today, than I was when elected'.

      I think the relevant added piece is Electoral Act 2004, section 75 which requires nominated candidates who are 'qualified under the Constitution Act 1934'. So my pub lawyering leads me to an exclusion of dual citizenship. BUT...would really need a Court judgment to know.

  3. Thanks Kevin.

    Can you give us an update on Julia Banks (Lib, Chisholm). Last week's kerfuffle died down when a Liberal Party spokesperson stated: "We have received confirmation from the Greek Embassy that according to records Julia Banks is not registered as a Greek citizen and also is not entitled as a Greek citizen."

    Perhaps that's OK. But the Greek statement only speaks of the now. Not the her status at the time of nomination/election.

    But why weren't there follow up questions asked her like the follow ups to Malcolm Roberts and Justine Keay - "did you renounce and when did you do it?".

    I see some attempts to follow up on twitter by legal academic Jeremy Gans, but not the media and not the ALP - maybe the ALP think they have more to lose with more MPs with a migrant background?

    1. Now I had thought Banks was in the clear on the basis of the "not entitled as a Greek citizen" though the language there ("as a" rather than "to be a" is a bit strange). However I hadn't seen this: raising questions about whether she "renounced her entitlement". Renouncing of entitlement as opposed to renouncing of citizenship seems to be an obscure concept - can an individual permanently renounce an entitlement, does Greece have a procedure for this, what happens if they change their mind and want it back? (etc)

      I think I'll add a section on her though she is not the same as the others for which we know there is an arguable case of ineligibility. In Banks' case whether there could be anything to see depends on facts that don't seem to be known.

  4. I think there's a reasonable argument that "or entitled to the rights or privileges of a subject or a citizen" means _currently_ entitled, not entitled once you have bothered to apply and had your application accepted. Eg, since my wife is an Irish citizen, our kids had to be registered on the register of overseas births if they wanted the benefits of Irish citizenship. Only one has obtained an Irish passport, but being registered the others are effectively Irish, and would now have to renounce it if they wanted to stand for the federal Parliament. But on my reading of 44(i), before they registered they were only entitled to get registered, but not then entitled _to_the_benefits_. Someone in a similar situation will presumably run that argument when necessary before the High Court. We shall see.

  5. Read through the Sykes V Cleary HC judgement link that Justine Keay helpfully provided in her statement and I think she is in a LOT of trouble with her eligibility.

    That judgement clearly establishes the close of nominations as the relevant and required date for eligibility (lots of media seem to think it's Election Day, or declaration, or first sitting day - HC has absolutely not seen it that way).

    And the necessary event in Sykes V Cleary is not the application date but the receipt of response from the foreign government.

    On that basis Keay is ineligible, and falls back to all reasonable effort defense. Preselected more than a year out she submitted 27 days before needing to not be a dual citizen.

    Further complication, (seemingly) that 'all reasonable efforts' test is relevant only where foreign government is unresponsive, unwilling or unable to respond to renunciation request.

    Ultimately my view is irrelevant, but my read of HC precedent (offered by Keay) is that she will need to change the HC from its prior judgments to survive. That is surely not a reasonable assumption, though it remains a possibility.

    1. At the very least, the fact that Keay was preselected around a year before the election but had not fully renounced before the poll suggests that Labor's candidate-screening or management, while apparently much more extensive than for most parties, is still not quite as bulletproof as was being made out.

      The argument being made in the statement appears to be that if someone has otherwise taken all reasonable steps to renounce by nomination date, but their renunciation hasn't been formally processed in time, then they are having a "continuing foreign nationality" imposed on them "involuntarily by operation of foreign law". That seems contestable to me, or at least not clearly what the justices had in mind. It could well be argued that the candidate is having continuing foreign nationality imposed on them because they didn't get their papers in sooner.

      I think the HCA was really concerned only with establishing that there are circumstances in which successful renunciation isn't required, rather than in setting out what the exact limits are. So I don't find the precedent set by the previous cases clear either way in Keay's case. The usual I-am-not-a-lawyer disclaimer applies.

  6. Sykes v Cleary is not a satisfactory case and there has been a lot of bush lawyering about it from non-lawyers (not from Kevin, who knows he's not a lawyer!).

    It stands for the High Court being willing to imply some reasonable practicality into s44, a poorly drafted section of the Constitution. That is about all I would take out of it. You otherwise have a hodgepodge of different judgements answering effectively a hypothetical. Presented with the facts of the cases of Waters, Canavan, Keay etc I would have some confidence that the Court will be reasonable. The Cleary case was criticised even at the time for being too black letter law (in stark contrast to the Court's willingness to accept native title and the implied freedom of political communication). Most commentary can't see beyond the bald words of the section, most of the rest seem unable to imagine the court expanding on Cleary. I would be surprised if they didn't expand on Cleary in some respect.

  7. I saw a suggestion online somewhere that at the time of Ludlam naturalising as an Australian, the oath of allegiance contained a section renouncing all others. And on that basis Ludlam might have an avenue to challenge. Though reading your post this would require revisiting the High Court decision, it doesn't seem so far fetched if 2 out of 7 Judges in Sykes vs Cleary thought such an action was sufficient.

    In fact Ludlam did state in his press conference that from the age of 14 when he was naturalised he believed that he no longer had NZ citizenship. If the ceremony consisted of parts where he formally renounced all other allegiances, that would seem a pretty reasonable assumption for a child.

    1. If Ludlam was 14 at the time I wonder if the renunciation was done by his parents on his behalf.

      The two dual-citizen cases covered in Sykes v Cleary both also renounced all allegiances in the process (in one case it was required in the oath, the other wasn't required to but did so anyway). However they both did so as adults.

  8. The Ludlum, Waters and Canavan cases have been referred to the HC by the Senate. Why not Roberts? Am I missing something?

    1. The Government did not immediately move to refer Roberts. Roberts had previously said he was going to provide paperwork but has not yet released it. Now if Roberts does not provide his evidence the Greens will seek to refer him tomorrow with support from Labor and a portion of the crossbench. It appears that NXT are the key votes here and they have not yet committed one way or the other.

      There is speculation the government do not want to refer Roberts because they don't want to annoy One Nation, but their stance may also be influenced by whatever advice they have on the prospects of the matter.

  9. I am uncertain as to what sense Sykes v Cleary is "not a satisfactory case". It's an interesting and many elemented case of S44 eligibility. With a 3 justice majority ruling, two justices each agreeing with the majority but adding supplementary comments and two separate minorities.

    Looking specifically at Keay's potential ineligibility there is relevance in understanding on what date a candidate must be eligible, when a secondary citizenship is considered to have been renounced, and third and finally under what circumstances 'all reasonable steps' applies.

    The majority view, and Dawson and Brennan (5) have the timing as close of nominations, and the event as date of actual renunciation as the day of foreign government paperwork. Keay is ineligible under those parameters.

    Gaudron also has close of nominations but triggers from date of application paperwork - Keay eligible.

    Deanne has declaration of the polls and date of application paperwork - Keay eligible.

    I don't see this as bush lawyering just reading the judgements.

    All the justices recognize a need for 'all reasonable efforts' fall back but it appears to me (and I'll pre label this bush lawyering) that that is only valid in circumstances of an unresponsive foreign power.

    Keay should definitely be referred because on 1992 judgement basis she'd go down 5:2

  10. George B says "the government's legal advice is there needs to be "conscious adherence" to a foreign state." Maybe, but that's not what s 44(i) says and there's a limit to how far the High Court will read words down, no matter how outdated and silly they are. My guess is that if we were able to see the government's advice it says "the best thing we can argue without looking completely silly is...", ending with a disclaimer that it might not succeed. If they were acting for a private party, they might get the client to sign the standard letter saying "I acknowledge that you have told me I will probably not win, but I instruct you to run the argument anyway."

  11. Yeah, I just don't see how they can be so confident on it. One of the remarkable things in the Sykes v Cleary judgement (excluding some of the dissents on the eligibility of the other respondents) is how little it says about whether it matters if someone knew they were a citizen of another country or not. The second and third respondents most likely had no idea they were still citizens of their birthplaces.

  12. Indeed - they had both clearly renounced "all other allegiances" when they had been naturalised. Deane and Gaudron JJ held that was enough. Even if the current HC agreed with that (as they should), if wouldn't help any of the current suspects, because the naturalisation ceremony no longer includes a renunciation. And the question of citizenship by descent has not yet been tested, but as I keep saying, the words of para 44(i) are pretty intractable.

    1. Whatever conclusion the High Court reaches on citizenship by descent, I'm struggling to see how it could be more helpful to Joyce than to Canavan.

      My understanding is that Canavan was actually (unknowingly) a citizen of Italy from birth. All his mother did was register him (along with herself). So Canavan and Joyce are in the same boat, both relying on the Court to find that some sort of knowledge, acknowledgement or acquiescence is necessary to trigger the disqualification. The only way to split them is if the test required an act of acquiescence, but allowed it to be the act of someone else. That seems pretty far-fetched.

      In fact there might be an argument that would clear Canavan but not Joyce. Brennan J in Sykes v Cleary quotes approvingly from Oppenheimer v Cattermole regarding a person with only a "slender connection" to the country conferring citizenship. Canavan is further removed from Italy (his mother was born in Australia) than Joyce is from New Zealand.

  13. Comment from Michael Maley:

    If Mr Barnaby Joyce insists on sitting in the House of Representatives as a dual citizen, he runs the risk of being sued under section 3 of the Common Informers (Parliamentary Disqualifications) Act 1975 (

  14. Yes Michael, I went to bed last night musing about doing that. High Court is sitting in Brisbane atm so I could hop into town and appear in person at minimal expense. But would the filing fees eat up all the 200 dolalrs per day? I think I'll leave it to someone else...

  15. Disclaimer: I am not a lawyer.

    I don`t think an unused right to Citizenship is likely to be ruled as disqualifing under 44i`s provision for "entitled to the rights and privileges of a subject or citizen of a foreign power".

    However "entitled to the rights and privileges of a subject or citizen of a foreign power" could easily catch out many, many Australians without any foreign citizenships born before 1983 because of the UK`s Right of Abode provisions as Australians are Commonwealth Citizens and Commonwealth Citizens born before 1/1/1983 who have a UK born (including all of Ireland before 1/1/1922) UK Citizen parent or a husband with Right of Abode (Either a UK born Citizen or their child). As this the Right of Abode is not effected by loss of UK Citizenship, only loss of Commonwealth Citizenship, the UK Citizenship renouncers could well have be effected if they have any UK parents (I suspect most of them would) or Right of Abode husbands and were Australian Citizens before 1983. This may even be obscure enough to have escaped even the ALP`s hardine vetting proceedures Although the High Court may be lenient on the Citizenship renouncers, on reasonable steps grounds or it could go letter of the law and boot them.

  16. Roberts got himself into bother because he never thought he would be elected therefore it did not place a high priority on renouncing his citizenship.