Gallagher loss in High Court triggers 4 avoidable by-elections

May 09, 2018

Senator Cory Bernardi has attacked Labor's handling of its citizenship cases, after the High Court ruled that the Constitution precluded dual citizen and now-former ACT senator Katy Gallagher from sitting in the Senate.

In the below video, Senator Bernardi said this afternoon that the situation could have been avoided if the Coalition had listened to him last year and prorogued parliament, commissioning a full audit of all members and senators' citizenship status.

Within hours of the High Court ruling against Senator Gallagher's eligibility, three Labor MPs and an independent MP resigned from parliament, triggering by-elections. Pursuant to the constitution, Senator Gallagher's seat falls vacant and can be filled by Labor in a 'casual vacancy' without an election. All four MPs are dual British-Australian citizens via their parents' birth, being:

  • Labor's Josh Wilson, in the WA seat of Fremantle;
  • Labor's Justine Keay, in the Tasmanian seat of Braddon;
  • Labor's Sussan Lamb, in the Queensland seat of Longman; and
  • the Centre Alliance (formerly Nick Xenophon Team) MP Rebekah Sharkie, in the South Australian seat of Mayo.

Section 44 of the Australia Constitution renders ineligible to election to either house of federal parliament anyone who is a dual citizen. The High Court case of Sykes v Cleary had previously ruled that it would be excusable to be a dual citizen in circumstances where it was impossible to renounce citizenship, and a dual citizen had taken all reasonable steps to revoke that citizenship.

Hitherto, some political candidates, parties and Members of Parliament had believed they needed only to take 'reasonable steps' to renounce any citizenship that they held.

Yet in its majority judgement, the High Court ruled that the 'reasonable steps' scenario did not apply to British citizenships, no matter how they came to be held. Justices Bell, Keane, Nettle and Gordon - with Chief Justice Kiefel - stated "The exception to s44(i) does not apply to British law because that law does not either in its terms or operation render it impossible or not reasonably possible to renounce British citizenship." 

The Court repeated its determination in the 2017 Canavan case that "an Australian citizen (must) not be irremmediably prevented by foreign law from participation in representative government." In the Court's view, British citizenships are remediable i.e. capable of being renounced. Indeed, the Court stated that "Senator Gallagher did not identify any aspect of the relevant British law which operates to prevent her irremediably from nominating for an election."

The facts of the case demonstrated that a process existed to renounce British citizenship, and indeed it was open to a dual citizen to ask the British Secretary of State to expedite the process. In Senator Gallagher's case, the British Secretary of State still had outstanding questions that delayed the outcome of her renunciation of British citizenship and in the Court's judgement, only the actual certification of renounced citizenship satisfied the constitutional test - not, to paraphrase, doing 'everything you could' to renounce. To paraphrase, blaming a foreign government for taking too long to process a renunciation did not suffice.

The Court's ruling on the Gallagher case, therefore, demonstrates that the others who were dual British-Australian citizens at the election will have no basis to claim eligibility to remain in the parliament.

Earlier today, Opposition Leader Bill Shorten claimed the High Court had established a 'new precedent'. Previously, Labor had claimed its vetting processes were superior and that they had confidence that they had no members of parliament sitting ineligible in the parliament. Now, it is clear, there were four - more than any other party had.  

Coincidentally, the resignation of a Perth Labor MP Tim Hammond in the last fortnight means there will now need to be - at current count - five concurrent by-elections on what commentators are calling a 'Super Saturday'.

In the above video, Senator Bernardi said the by-elections are major tests for the leadership of Labor's Bill Shorten and the Coalition's Malcolm Turnbull.


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