Federal election 2022: Boothby independent candidate Jo Dyer faces questions over dual British-Australian citizenship

A high-profile independent candidate who has tried to revoke her dual citizenship may have left her run too late, a legal expert says.

A high-profile independent candidate who has tried to revoke her dual citizenship is facing questions over her fight for the state’s most marginal federal seat.

Jo Dyer is in a three-way battle for Boothby, across Adelaide’s south and west, against Liberal candidate Rachel Swift and Labor opponent Louise Miller-Frost.

But questions have emerged about her candidacy over her attempt to relinquish her British citizenship before next month’s poll, and a leading Constitutional expert said it might just be a matter of too little, too late.

Under the Australian Constitution, any candidate who is a “citizen or subject of a foreign power” is disqualified from being elected as a member of federal parliament.

Professor George Williams, a constitutional law expert from the University of NSW, said it could mean the end of her campaign.

He said the crucial time for surrendering dual citizenship was not at the time of the election, but when a person nominates to run for parliament.

“The boat may very well have sailed if she is in fact a dual citizen,” he said.

Ms Dyer, who grew up in Adelaide, said she applied to rescind her British citizenship before she announced her candidacy, but it has not yet been processed.

Australia’s highest court has ruled this is “insufficient” to be exempt from the rules if an application has just been made, which has left other MPs previously ineligible.

Ms Dyer, who returned from Sydney to fight for Boothby, said the British government had informed her the application would be delayed by several months due to Covid-19.

She said legal advice that was supplied to major parties said this could be defended as sufficient.

“I’m pretty confident, otherwise I would not be doing any of this,” she said.

“It is our understanding this is one of these situations that reasonable steps would apply.

“I would say there are no questions otherwise I would not have made this decision.”

Candidate for the federal seat of Boothby Jo Dyer is running as an independent. Picture: Naomi Jellicoe

Documents filed with the Australian Electoral Commission on April 18 show Melbourne-born Ms Dyer, 51, has dual British-Australian citizenship.

Her parents, environmental science academic father Ken, 82, and education lecturer and aid worker mother Maureen, 81, are originally from London.

In her qualification checklist, which related to eligibility under Section 44 of the Constitution, Ms Dyer, born Joanne, declared the “date of losing foreign citizenship” was December 8 last year.

Accompanying her signed declaration, Ms Dyer, a former federal Labor candidate and member, tendered a supporting document showing her application to Britain’s Home Office was “submitted” on that date.

With a payment of £372 (about $654), the British government received her application at 6.53am that morning but there is no evidence showing it was processed or citizenship revoked.

While not having specific legal advice, Ms Dyer said hers was not a case in which due diligence had failed to be undertaken as she lodged her application before going public but was caught up in factors outside of her control.

In a test case in 2018, the High Court ruled it was “not sufficient” that a person merely applied to have their foreign citizenship revoked.

In a landmark judgment led by Chief Justice Susan Kiefel, the court held Labor Senator Katy Gallagher was disqualified because the foreign law of Britain did not operate to “irremediably” prevent an Australian citizen from renunciation of citizenship.

In a statement last night, Ms Dyer’s spokesman said she was seeking urgent advice over the High Court’s ruling.

“Jo thought she had met eligibility requirements but based on the Gallagher case is now seeking advice from lawyers, as well as the British Home Office as to the status of her application,” he said.

The spokesman said she “anticipated it would take two months to process” based on other candidates.

Chief Justice of the High Court Susan Kiefel. Picture: Lukas Coch

Constitutional law expert, Professor George Williams, from the University of NSW. Picture: Hollie Adams/The Australian

Professor George Williams said the court had taken a strict approach to applying the letter of the law.

“The High Court has ruled that you must have removed or renounced your citizenship and that process must be complete,” he said.

“Even if the foreign government delays or takes an unreasonable period of time then bad luck. It is a real problem with this clause.”

Professor Williams said that the clause was still affecting a large number of potential candidates.

“Many of them are unaware that they are dual citizens because they may have inherited it from a family member or it might be due to a change of law in a foreign country,” he said.

“In some cases people have sat in parliament for years without realising they were never entitled to be there.

“The bottom line is that there is more awareness now but the rules haven’t changed and they are just as difficult to comply with.”

Nominations closed last Thursday and the AEC said it couldn’t accept changes to applications.

The AEC warns completing the checklist does not “guarantee you’re eligible to be elected” and urges candidates with any doubts to seek independent legal advice.

Ms Dyer moved to Adelaide as a toddler, before attending Seymour College – as did her two main political opponents – and Adelaide University.

A successful arts administrator, she held senior positions at Sydney Theatre Company and was that city’s Writers’ Festival chief before becoming Adelaide Writers’ Week boss.

Her high school debating teammate “Kate” had accused former attorney-general Christian Porter of raping her – claims he vehemently denies. “Kate” died by suicide in 2020.

Sitting Liberal MP Nicolle Flint is retiring from the seat of Boothby with a margin of 1.4 per cent.