The High Court brought down its momentous ruling on the “citizenship seven” early this afternoon, which has resulted in four Senators (Larissa Waters and Scott Ludlam of the Greens, Fiona Nash of the Nationals and Malcolm Roberts of One Nation) and one member of the House of Representatives (Barnaby Joyce) losing their seats. Not disqualified are Nationals Senator Matt Canavan and Senator Nick Xenophon, the latter of whom will shortly be leaving anyway. The full judgement can be read here.
Broadly speaking, the court’s unanimous decision has been to take a black-letter, conservative approach to the meaning of the section, and accept the reasoning established by the court in the Sykes v Cleary ruling in 1992. It has rejected the dissenting opinion of Justice William Deane in Sykes v Cleary, who argued the second limb of the section 44(i), ensnaring any person who is “a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power”, should be understood to apply only where such rights have been actively acknowledged. As such, the court rejected various shades of argument that it was unreasonable to expect members should divest themselves of citizenship rights they do not realise they possess.
Since the court’s ruling is that the five members are retroactively disqualified from running at last year’s election, their positions will be filled by countbacks in the case of the four Senators, and by a by-election in the case of Barnaby Joyce and his seat of New England. There appears to be no reason at law why disqualified Senators could not recover their seats if their replacements agree to resign and their parties choose them to fill the resulting casual vacancy, provided they have resolved their citizenship issues in the interim. However, in none of the cases does it appear that this will happen.
To consider their circumstances in turn:
Most importantly, the government is now down a Deputy Prime Minister, after the court found nothing to complicate Barnaby Joyce’s status as a dual citizen of New Zealand acquired through his father. Joyce must re-contest his seat at a by-election in his seat of New England in northern New South Wales. It appears to have been agreed within the government that this will take place as soon as possible, on December 2. For now it will suffice to observe that Labor last held the seat in 1913, and has not come close to doing so in living memory. If a threat should loom to Joyce, it would appear more likely to come from an independent or minor party candidate. One of the former might be Tony Windsor, the independent member from the seat from 2001 to 2013, who fell 8.5% short of unseating Joyce in 2016 (UPDATE: Windsor has ruled this out). It should also be noted that Shooters Fishers and Farmers have polled strongly in three recent state by-elections, including a victory in the seat of Orange last year. It was presumably aided by the fact that One Nation is not officially registered at state level, a circumstance that does not apply at federal level. Ladbrokes is offering two betting options: $1.13 on Barnaby Joyce, and $5 on One Nation. Obviously a lot more will be said about this in weeks to come.
The court found nothing to complicate the fact that Nash is a dual British citizen through her Scottish-born father, which she had done nothing to renounce. The recount for her New South Wales seat makes life complicated for the Coalition in that it stands to elect a Liberal, Hollie Hughes, in place of a National.
Perhaps the least surprising aspect of the ruling was that Malcolm Roberts, who was born in India and did not properly renounce his British citizenship until six months after he was elected. The recount to replace him will elect Fraser Anning, about whom not much is known except that is a hotel owner from a farming background. Anning’s own eligibility appeared under a cloud due to bankruptcy proceedings but these were resolved early this month. Had it been otherwise, it would have been the fourth candidate on the One Nation who would have come into contention: Judy Smith, sister of Pauline Hanson. Suggestions that Roberts might find a way back to the Senate through the back door have been scotched by a media release on a party letterhead from Anning in which he is strongly critical of Roberts and others caught up in the controversy, and says he is “very much looking forward to being a Senator”. Roberts now says he plans to run at the looming Queensland state election.
Here the situation was straightforward: Scott Ludlam was clearly a citizen of New Zealand, and hence ineligible under the first limb of Section 44(i). It appears to have been resolved that the Greens will accept the outcome of the recount process, which will deliver his Western Australian seat to the party’s number three candidate at last year’s double dissolution, 23-year-old disability advocate Jordon Steele-John.
The court also ruled that there was nothing to complicate the provision of Canadian nationality law that persons born in the country become citizens, and that her failure to renounce this citizenship rendered her ineligible. The recount will elect Andrew Bartlett, who held a Queensland Senate seat for the Australian Democrats from 1997 to 2008, and led the party in its terminal phase from 2004 to 2008.
Matt Canavan is off the hook because the court deemed he was not an Italian citizen. His difficulty related to the fact that he was included in a register of Italian residents abroad after his mother registered for citizenship and listed her children in the application form — which, among other things, entitled him to vote in Italian elections. However, Canavan never applied to become an Italian citizen, and the court was not of the view that the official status granted through this process amounted merely a “declaratory” acknowledgement of a status that existed in any case. The court has apparently opted to take a narrow view of the second limb of the sub-section, with his voting rights not deemed to make him “entitled to the rights or privileges of a subject or citizen”.
Nick Xenophon has the status of a “British overseas citizen” through is Greek Cypriot father, by virtue of him having been born in a country that was a British colony at the time but has ceased to be so. The court ruled that this status does not amount to citizenship, or entitle him to the rights or privileges thereof, as it does not entail right of abode in the United Kingdom, nor entail a pledge of loyalty to it.