Greens say ignorance is no defence to dual citizenship laws, and former senator will come back if Queensland members will it

The Greens member Larissa Waters may find her way back to the Senate – but not necessarily because the attorney general, George Brandis, is arguing she should still be there.

The popular former senator is expected to announce her plans, after speaking with the Greens leader, Richard Di Natale, following Brandis’s inclusion of her in his argument to keep three government MPs in their jobs – that not being aware of dual citizenship is not a breach of the constitution.

But the Greens maintain the legal advice which led to Waters resignation in July, after her colleague Scott Ludlam’s discovery of New Zealand citizenship prompted the Canadian-born Queenslander to check her own status, was solid.

Politicians unaware they held dual citizenship should keep jobs, says Brandis Read more

If Waters returns to the Senate, the party believes it will be because the Queensland members will it, not Brandis.

“The key thing from my perspective is that I have renounced and am ready and willing to return to the job when the Queensland party wills it,” she told Guardian Australia on Wednesday morning.

Discussions have been occurring within the Queensland branch over the future of its state Senate spot, with Andrew Bartlett, the number two on the ticket and beneficiary of any recount, saying it was a work in progress.

“The Queensland Greens are focused on the state election, we can’t control what the high court does,” he said. “But if it decides on a recount, than I would take on that seat until next year at least and see what happens after that.”

Di Natale maintains his party was the only one involved in the section 44 saga which showed integrity.

“Although our dual citizenship laws are a relic of the past, the law is very clear that dual citizens are ineligible to stand and that ignorance is no defence. Only the Greens have acted with integrity throughout this process because we believe that for people to have faith in democracy, people within the system need to act with integrity,” he said.

“If the high court decide to overturn decades of precedent and change the interpretation of section 44 of the constitution so that she was eligible for election despite being a dual national, we would welcome back Larissa Waters return to parliament with open arms.”

In his submission to the high court, released on Tuesday afternoon, Brandis argued Barnaby Joyce, Fiona Nash and Matt Canavan, who all received citizenship by descent from their foreign-born parent, had not voluntarily obtained dual citizenship.

Waters and Nick Xenophon, who was referred to the court after discovering he was a British overseas citizen through his Cypriot-born father, have been included under Brandis’s argument.

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Malcolm Roberts and Ludlam have been excluded, with Brandis claiming they don’t meet the test, arguing they knew about their dual citizenship conflict upon nominating.

“A person who becomes aware that he or she is a foreign citizen, or who becomes aware [ie subjectively appreciates] that there is a considerable, serious or sizeable prospect that he or she has that status, voluntarily retains that status unless he or she takes all reasonable steps to renounce it within a reasonable time of becoming so aware.

“Alternatively, where a person has no knowledge that they are, or ever were, a foreign citizen, the requirement to take ‘all reasonable steps’ to renounce that foreign citizenship does not require the person to take any steps. Taking no steps is reasonable in these circumstances,” Brandis said.

In an op-ed published in the Australian Financial Review last month, constitutional expert Anne Twomey argued it was “doubtful the high court would accept that ignorance of dual citizenship is enough to avoid disqualification”.

“While it is certainly arguable that the purpose of the provision is to avoid conflicting allegiance and one cannot have a conflict if one is not aware of having dual citizenship, this would appear to reward those who put their head in the sand and neglected to check their citizenship status before nominating,” Twomey wrote.

“The media investigations into the citizenship status of members of parliament have revealed some did make the effort to find out they had citizenship by descent and took the required steps to renounce it, while others simply failed to do so.

“It is therefore a weak argument that it is unreasonable to expect a candidate to anticipate and deal with the possibility of dual citizenship, when many others in equivalent circumstances have dealt with it effectively.

“The problem here is really one concerning the rigour of party nomination procedures, rather than a constitutional problem.”

In his August National Press Club address, Professor George Williams argued a similar point.

How the citizenship muddle unfolded and who’s caught up in it – timeline Read more

“It is hard to see why the high court would excuse a person in these circumstances,” he said. “Ignorance is not a plausible explanation when citizenship by descent is so common, and the barest inquiry would have identified the problem.

“Joyce’s case, and those of the Greens members, speak less of a problem with the constitution and more of complacency and inadequate party vetting processes.”

The high court is scheduled to hear the cases next month.