Former MP’s lawyers object to George Brandis’s argument that MPs should not be punished if they were unaware of dual citizenship

This article is more than 2 years old

This article is more than 2 years old

Lawyers for the former independent MP Tony Windsor have strenuously rebutted recent efforts by the attorney general, George Brandis, to argue parliamentarians should not be punished by the high court if they were unaware of their dual citizenship status.



In submissions lodged with the high court late on Tuesday, legal advisers to Windsor have asked for a byelection to be called in the seat of New England in the event the court determines the deputy prime minister, Barnaby Joyce, was not capable of being chosen for parliament because of his dual citizenship of New Zealand.

They have also attempted to slap down arguments by Brandis that Australia’s constitutional prohibition against parliamentarians with dual citizenship should only be applied to someone who has “voluntarily obtained or retained” that citizenship.

Windsor’s high-powered legal team for the high court proceedings includes the former federal court judge Ron Merkel and the former solicitor-general Justin Gleeson, who fell out acrimoniously with Brandis during his tenure, before resigning in October 2016.

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The Windsor submission argues previous majority high court rulings in section 44 cases make “no relevant distinction between citizenship acquired by descent and citizenship acquired by birth”.

It says Joyce’s situation “is not relevantly distinguishable” from the facts of the third respondent in the 1992 Sykes v Cleary case, Bill Kardamitsis, who was a Labor candidate of Greek descent.

Windsor’s legal team points out that Kardamitsis’s lack of knowledge that he remained a Greek citizen “did not save him”.

“He was held to be disqualified for a simple, objective reason: at the relevant times he was a Greek citizen by birth under the law of Greece and he had failed to do the things necessary, or take all reasonable steps, to renounce his Greek citizenship in accordance with the laws of Greece,” the submission says.

Windsor’s submission says Brandis’s argument in the contemporary high court cases is “contrary to the decision of the five justices in Sykes”.

It argues the case being put to the court by Brandis and by Joyce “is effectively an attempt to resurrect the dissenting reasoning of Deane J in Sykes v Cleary”.

It says for that line of argument to proceed, the court will need “to prefer a single dissenting judgment in Sykes to the considered reasoning of the five justices in that case”.

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The submission warns “acceptance of that argument would reward the careless and perpetuate the kind of destabilising situations giving rise to the current seven references”.

It says if the Brandis reasoning is upheld, prospective political candidates may see it as being in their interest to not ask questions or seek proper advice about their citizenship status.

“The reasoning of the majority in Sykes should not be upset in favour of an argument with such damaging consequences for clarity, certainty and rigour in the application of a constitutional provision going to the heart of the composition and due functioning of the parliament,” Windsor’s submission says.

Windsor came out of retirement to run against Joyce in the seat of New England in the federal election of 2016 and lost.

The former independent sought standing in the current high court case, which is considering whether or not the deputy prime minister was ever validly elected because of his dual citizenship of New Zealand.

Brandis has attempted to argue in his submissions to the high court that a person who does not know that they are, or ever were, a foreign citizen has not voluntarily obtained that status.

“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,” the attorney general’s submission to the court says.

“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.”

The government MPs caught up in the citizenship imbroglio, and the South Australian senator Nick Xenophon, have submitted 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.

But two Greens senators, who resigned their positions once they became aware that they were dual citizens, Scott Ludlam and Larissa Waters, have told the court they were correct to resign when they became aware of their status.

The high court is scheduled to hear the cases of several MPs, including Joyce, between 10 and 12 October.