The Labor senator Katy Gallagher did not take all steps reasonably required to renounce her British citizenship, the attorney general has argued.

In submissions to the high court, the government has asked for Gallagher to be ruled ineligible to sit in the Senate because the “reasonable steps” defence does not apply to her and because she could have done more to have her renunciation processed in time.

Gallagher was referred to the high court in December and will be a test case for Labor’s interpretation that parliamentarians are not disqualified by the constitution where they have taken “all steps reasonably required” to renounce foreign citizenship.

The attorney general’s submissions argue that the reasonable steps defence only applies where a person is “irremediably prevented by foreign law from participation in representative government”, as stated in the Canavan high court decision and advice released by the Turnbull government.



The high court had already decided when it considered Malcolm Roberts and Fiona Nash’s cases that UK law did not “irremediably” prevent renunciation. Therefore the reasonable steps defence did not apply to Gallagher, the submission argued.

Gallagher, who filled a Senate vacancy in March 2015, submitted forms to renounce her British citizenship on 20 April 2016. The renunciation was not confirmed until 16 August 2016, well after the 9 June nomination date for the 2016 election.

Even if the defence was available to Gallagher, the attorney general argued that leaving sufficient time for a foreign bureaucracy to process a request was itself a reasonable step she failed to take.

Candidates should not be allowed to wait until the last minute before renouncing their citizenship, or else they would be allowed to sit in parliament as foreign citizens and generate “significant uncertainty” about whether they were eligible while their renunciation is processed.



The attorney general submitted that it was incumbent on Gallagher “at least” since March 2015 to ensure she was eligible, an obligation that was “renewed” when she was preselected in May 2015 to run for Labor in the 2016 election.

Gallagher was on notice from 21 March 2016 that a double-dissolution election was “a possibility”, it said. “At no stage did she take any steps to renounce her British citizenship.”

Gallagher left 49 days from her renunciation to close of nominations when the average processing time for the UK Home Office is 55 to 60 days. Publicly available documents warn the process can take more than six months.

The renunciation would only be processed in time if British authorities processed it “substantially faster” than the average, the attorney general argued.

The attorney general submitted that Gallagher had failed to undertake a search of the processing time for applications, to find out whether it was possible to expedite applications, and to advise the Home Office the application was urgent.

The submission also noted the UK Home Office secretary requested on 1 July 2016 that Gallagher provide her father’s birth certificate to process the renunciation, which she could have done earlier with her original form.

“Accordingly, even on the view of [reasonable steps test] that is most favourable to Senator Gallagher, she was nevertheless incapable of being chosen as a senator,” it said.

The attorney general submitted that if Gallagher was found ineligible her vacancy should be replaced by a recount, which would likely return Labor’s second candidate, David Smith.

The result would mean that in the Australian Capital Territory – where most grassroots Labor members are in the left faction – Labor’s parliamentarians would be two members of the right, Smith and MP Gai Brodtmann, one unaligned MP, Andrew Leigh, and no members of the left.

If the high court sides with the government’s interpretation of the reasonable steps test it will likely mean that the Labor MPs Justine Keay and Josh Wilson, and the Nick Xenophon Team MP Rebekha Sharkie are all forced to resign or face high court referral because they did not successfully renounce before the deadline.

Labor’s Susan Lamb is under pressure to resign for the same reason, despite an emotional public statement detailing a long-term estrangement with her mother as her reason for not submitting adequate documents to renounce dual citizenship.