A former solicitor general says court should reject argument parliamentarians without knowledge of their foreign citizenship are eligible to sit

This article is more than 2 years old

This article is more than 2 years old

Accepting that politicians who are ignorant of their foreign citizenship can sit in parliament will lead to “radical instability” and a repeat of the eligibility chaos of 2017, the court of disputed returns has heard.

The former solicitor general, Justin Gleeson, told the court on Wednesday it should reject the commonwealth’s case that parliamentarians with no knowledge of their dual citizenship are eligible because they did not “voluntarily obtain or retain” allegiance to a foreign power.

Gleeson, on behalf of the former independent MP Tony Windsor who is challenging Barnaby Joyce’s eligibility, argued allegiance derives from one’s status as a foreign citizen regardless of whether one is aware of it.

A parliamentarian’s dual citizenship creates an “irremediable conflict irrespective of their knowledge of it”, he said.

The former solicitor general gave the example of a dual Greek-Australian citizen conscripted into military service in Greece despite ignorance of their foreign citizenship.

Gleeson also noted New Zealand criminal law has extra-territorial effect on its citizens, which would have rendered Joyce susceptible to the criminal law of New Zealand before he renounced his dual citizenship on 12 August.

The friend of the court, Geoffrey Kennett, agreed that there may be “duties under foreign law that could conceivably be enforced upon a person” regardless of their knowledge.

Section 44 of the commonwealth constitution states that people are incapable of being chosen as a senator or MP if they are the subject or citizen of a foreign power.

On Tuesday, Joyce and Fiona Nash’s counsel, Brett Walker, submitted the section does not disqualify people who did not have knowledge of their foreign citizenship and, if they discovered it, they should have a reasonable time to renounce it.

Gleeson argued that such a “grace period” would allow an unknown number of people to remain in parliament with an allegiance to a foreign power for a time during which the interests of the two nations may come into conflict, such as during trade negotiations or war.

If parliamentarians with no knowledge of their foreign citizenship need not renounce it, Gleeson suggested that electors, political opponents and the media would search out dual citizens in the parliament to try to force them to acknowledge and renounce it.

The government’s preferred construction would lead to “a sequence like this year” with uncertainty hanging over parliamentarians’ status, Gleeson warned, and “radical instability” over the length of the grace period to be given.

Earlier on Wednesday Matt Canavan’s lawyer suggested it was a strict interpretation of the disqualification of parliamentarians with dual citizenship that would lead to “genealogical witch-hunts” by political opponents.



David Bennett argued that citizenship by descent passing down through multiple generations was an “exorbitant law” that would disqualify politicians with a “slender connection” to a foreign power.

Bennett said that if the court recognised “indefinite” citizenship by descent as a disqualification it would give rise to “offensive inquiries” about whether a person were one quarter, one eighth or one sixteenth foreign, which was “inappropriate” in an immigrant nation.

Gleeson submitted that the “ordinary” way to fix having dual citizenship is to renounce it before nominating for parliament. He said the exceptions to the general rule that dual citizens are ineligible are limited to exorbitant foreign laws or those that threaten Australia’s representative democracy, such as if a foreign power practically refused to allow Australians to renounce their dual citizenship.

Earlier, the lawyer for Greens Larissa Waters and Scott Ludlam argued the court should not reward “negligence” by letting off parliamentarians who did not take “reasonable steps” to investigate their dual citizenship,

Brian Walters argued that the country of one’s birth and one’s parents’ citizenship constituted “primary facts” that should prompt inquiries about one’s citizenship.

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Once aspiring parliamentarians had such facts and wanted to nominate for election they have “a duty not only to be honest but to be careful”, he said.

“Negligence in complying with one’s constitutional obligations should never produce a better result than diligence,” he said, proposing a test of whether parliamentarians had taken “reasonable steps” to ascertain their foreign citizenship.

But the Greens’ proposed test was immediately doubted by the chief justice, Susan Kiefel. Kiefel questioned how the case could “work backwards” from the conclusion in Sykes v Cleary that parliamentarians had to take reasonable steps to renounce foreign citizenship to extend it to a new requirement that they had to take reasonable steps to discover their dual citizenship.

“I don’t know how you get there,” she said.

Walters argued that section 44 was designed not only to prevent parliamentarians holding “split allegiances” to foreign powers but also to “remove perceptions of divided loyalty” and enhance Australians’ confidence in its parliament.

He said the section should be understood as an “assertion of Australian sovereignty … that government of Australians will be only by Australians”.

Repeated questioning from the bench suggested that such a reading was consistent with a disqualification of all foreign citizens but did not support the “reasonable steps” test.

Walters conceded that his own clients did not take “reasonable steps” to investigate their citizenship because Ludlam, who was naturalised as an Australian at age 19, knew he was New Zealander before that, and Waters, who was born in Canada but left at 11 months of age, did not investigate whether she was Canadian.

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Nick Xenophon’s counsel, Andrew Tokley, argued that his British overseas citizenship did not include the “core” features of citizenship, the ability to enter and reside in Britain, and thus should not be a bar to eligibility.



The hearing continues on Thursday with submissions on behalf of One Nation senator Malcolm Roberts and submissions in reply.