Larissa Waters and Scott Ludlam, the Greens senators who resigned after becoming aware of their citizenship conflicts have argued “ignorance or wilful blindness” should not be used as an excuse to save parliamentarians in potential breach of the constitution.



In a marked departure from the arguments of Barnaby Joyce, Fiona Nash and Matt Canavan, as well as the attorney general, George Brandis, on behalf of the commonwealth, Waters and Ludlam argue in a joint submission that they were right to resign when they became aware of their dual citizenship status.

The government MPs and Nick Xenophon all agreed with Brandis’s argument in their submissions to the court that they were ignorant of their citizenship issues, despite their parents’ heritage, and therefore should not be found ineligible for parliament as they did not acquire or retain the status voluntarily.

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However Waters, who was included in Brandis’s submission as deserving of being excused for the potential breach, and Ludlam argued that ignorance of “foreign citizenship status, is not supported by the text, context, history or purpose of s 44 or of the constitution itself”.

They accused the parliamentarians before the court of “ignorance or wilful blindness” of their dual citizenship status, saying these were not an excuse from the constraints of the constitution.

“In complying with obligations under the constitution, negligence should never produce a more favourable result than diligence,” they argued.

The Greens submitted it was reasonable to enquire into one’s status as a dual citizen when put “on notice by reason of the person’s foreign place of birth or the foreign citizenship status of that person’s parents or grandparents”.

The fact that a parliamentarian is a citizen by descent rather than birth should be no excuse, they submitted, as both are barred by section 44.

The Greens said the government’s test was more subjective and uncertain because it “largely depends upon subjective knowledge of a particular person at a particular time” about whether they were a dual citizen.

Waters and Ludlam said the purpose of section 44 was to bar people with “foreign loyalties and obligations” and it was a “real possibility” that a foreign power could call upon a citizen’s duty “even if it had never done so in the past and even if the person concerned was hitherto unaware of the citizenship”.

The Greens submission stands in contrast to the submissions of the three government MPs and that of Xenophon, who all argued variations of ignorance of dual citizenship should not be punished by the court, by being seen as a breach.

Canavan argued he was retrospectively made a citizen by descent when he was a child, a fact he only discovered after his mother said she may have inadvertently applied for Italian citizenship for him, with her own application, when he was 25.





“He never took any steps to register as an Italian citizen, or even to try to ‘apply’ to become one,” his submission reads. “In fact, it did not occur to him that he might be an Italian citizen until the evening of 18 July 2017, after a conversation with his mother.

“When the Italian consulate (possibly erroneously) confirmed on 24 July 2017 that he was an Italian citizen, within a matter of days he took steps to renounce that citizenship.

“He never exercised any of the rights, or discharged any of the responsibilities, of an Italian citizen.

“He has never even been to Italy. It follows that on the proper construction of s 44(i), Senator Canavan is not disqualified from being chosen as a senator.”

Joyce also argued he was completely unaware he could hold dual citizenship, as he had thought his father was only ever a citizen of Australia and had no reason to check before nominating for parliament.

“He thus had no doubts concerning his eligibility to stand as a candidate for election to the commonwealth parliament.

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“Merely reading the nomination form and the candidates’ handbook would not have put a reasonable person in Mr Joyce’s position, with his state of knowledge, on notice of any circumstance that would or should have prompted further inquiry.”

Nash’s counsel argued that while her sisters and father had been born in the UK, she had been told by her parents that she was Australian as she was born in Sydney and she would need to apply for British citizenship, if she wished it and “had no awareness of the fact that she was also a British citizen”.

Xenophon, who was found to be a British overseas citizen, said he took steps to renounce any Greek or Cypriot citizenship because of his heritage, but said it “never crossed his mind” that he could hold a form of British citizenship.

Roberts submission was not published on the high court website at the time of publication.

The high court will hear verbal arguments on 10, 11 and 12 October.