Dual nationality problems to remain until at least October – September 2017
Solicitor-General Stephen Donaghue QC has told the High Court at a directions hearing that there was a “clear demarcation line” between politicians who had known they were a citizen of a foreign power and those who did not.
Five senators and Deputy Prime Minister Barnaby Joyce were referred to the High Court after it was revealed they did not meet the sole citizenship requirement of section 44 of the constitution.
South Australian Senator Nick Xenophon and NSW Senator Fiona Nash are expected to join them when federal parliament next sits, before a three-day hearing in Canberra from October 10.
The High Court rejected a request from the Attorney-General for the case to be heard in early September. In a directions hearing in the High Court - sitting as the Court of Disputed Returns - in Brisbane, Chief Justice Susan Kiefel ruled the matter would be heard in Canberra on October 10, 11 and 12.
Justice Kiefel asked the Solicitor-General whether there would be an “issue of governance” if the matter was heard in October, but Dr Donaghue said there was not.
In the 1 hour 20 minute hearing, Dr Donaghue said of the five cases currently before the courts it was the view of the Commonwealth that Mr Joyce, Senator Canavan and Ms Waters should not be disqualified because they did not know they were citizens of another country.
But in the case of former senator Ludlam and Senator Roberts they must have been aware in the past they were citizens of another country. Senator Roberts case would revolve around whether he took reasonable steps to renounce citizenship before he was elected.
Mr Joyce may be spared disqualification from Parliament, according to Dr Donaghue’s argument, but One Nation Senator Malcolm Roberts may not be so lucky.
Senator Roberts remains the most at risk of being disqualified from Parliament as he may not have officially renounced his British citizenship until after his nomination. The Queensland senator was born in India under British rule and applied to be an Australian citizen when he was 19 years old.
Dr Donaghue said the Commonwealth would argue for Senator Roberts' disqualification if crucial documents officially renouncing his ties to Britain were found to be dated after his nomination.
The politicians who did not know they were a citizen of a foreign country at any time may escape disqualification because it was less reasonable for them to take steps to find out if they had ties to other nations, he said.
This could apply to Mr Joyce, whose father was granted New Zealand citizenship retrospectively and passed it onto his Australian-born son without his knowledge.
Senator Nash and Senator Xenophon were also born in Australia and inherited British citizenship from their Scottish and Cypriot fathers respectively.
Queensland Liberal Senator Matt Canavan was born on the Gold Coast to Australian-born parents, but automatically became an Italian citizen after the country's laws retrospectively changed when he was a child.
Italy previously only passed down citizenship to the descendants of men but the amendment gave rights to Senator Canavan's mother, whose parents were Italian.
Senator Canavan's barrister David Bennett QC said he would argue foreign citizenship by descent should be ignored under section 44.
Mr Bennett said Australian Bureau of Statistics data could demonstrate possibly up to 50 per cent of people would be disqualified from federal politics - a figure “so ridiculous” as to warrant excluding citizenship by descent.
The issue of dual citizenship snowballed after West Australian Greens Senator Scott Ludlam resigned on July 14 following revelations he was still a New Zealand citizen despite moving to Australia when he was three.
His colleague, Queensland senator Larissa Waters stepped down days later when she realised Canada changed its laws to no longer require people to actively renounce their citizenship a week after she was born in Winnipeg.
Meanwhile, Attorney-General George Brandis has defended the Government covering legal costs of those involved, saying they had been referred to the court by the Parliament and there was a strong “public interest” in resolving the matters.