Larissa Waters could return to Senate if High Court accepts Government argument – October 2017
Former Greens senator Larissa Waters could return to parliament if the High Court accepts the arguments put to it by the Attorney General George Brandis in dual nationality case.
The government has filed its official submission on the seven federal politicians who have been referred to the court over their citizenship status.
The case returns to the High Court for hearing on 10 October.
In the Commonwealth’s written submission for the case the Attorney General argues that only One Nation's Malcolm Roberts and former Greens senator Scott Ludlam were wrongly elected, while the Nationals' Barnaby Joyce, Fiona Nash and Matt Canavan, crossbencher Nick Xenophon and Ms Waters should not be disqualified.
The government argues that Malcolm Roberts and Scott Ludlam were wrongly elected to the Senate last year because of their citizenship status.
The submission contends that Senator Roberts and Mr Ludlam did not take all reasonable steps to renounce their respective British and New Zealand citizenship before being nominated.
Under section 44 of the constitution, “a subject or a citizen ... of a foreign power” cannot stand for parliament.
The Commonwealth believes that should apply only to those who have “voluntarily obtained or retained” their status.
That would allow five of the politicians, all of whom were not aware they were or ever had been a foreign citizen, to continue as MPs the submission says. – But not Senator Roberts and Mr Ludlam.
According to the Government’s submission, “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,” Senator Brandis’ submission says.
Ms Waters resigned in July upon discovering she still had Canadian citizenship but could return if the High Court agrees with the Commonwealth and she is nominated to replace herself by the Queensland Greens.
Greens leader Richard Di Natale is keen for her to return. “She's a wonderful MP, a wonderful human being and she's made a great contribution to the parliament,” he told Sky News on Wednesday.
Senator Di Natale was not surprised by the government's arguments for why its MPs and senators should not be disqualified. “The government has basically decided it doesn't want to play by the rules,” he said.
Senator Di Natale said it was “no surprise” that Senator Brandis had recommended that Mr Joyce, Senator Canavan and Senator Nash be found to have been eligible for election. “The government’s view is there’ll be rules for everybody else and a separate set of rules for themselves, so they’re trying to overturn what is very clearly spelled out in the constitution — that is that ignorance is no defence when it comes to dual citizenship,” he said.
“They’re obviously throwing a lot at it. They’re hoping that the High Court will overturn years of precedent. Obviously it’s their prerogative to do so, but it’s very, very clear that the founding document spells out what the conditions for election are.”
Guardian Australia has reported that negotiations are underway within the Greens to allow Ms Waters to return to the Senate even if the High Court rules against her, with the number two on the Greens 2015 senate ticket Andrew Bartlett (who will replace Ms Waters if she is ruled ineligible) being persuaded to stand aside in her favour.
Acting Labor leader Tanya Plibersek described Senator Brandis’s legal interpretation as “valiant”.
“I’m not a constitutional lawyer but I’m told by constitutional lawyers that this is a pretty valiant interpretation of Section 44 of the constitution,” Ms Plibersek told ABC radio. “What it doesn’t answer is the question of why Senator Canavan had to stand down from his ministerial responsibilities and Fiona Nash and Barnaby Joyce haven’t had to.
“There’s still a great deal of question around the propriety of making decisions as a minister when there’s a cloud hanging over your head.”
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.
In his August National Press Club address, Professor George Williams argued a similar point.
“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.