D-Day for Deputy Prime Minister Barnaby Joyce and six other parliamentarians

PARLIAMENT looks set to become a “tactical circus” if the High Court rules the Deputy Prime Minister is ineligible for election.

SEVEN former and current members of parliament with citizenship questions over their heads will find out their fate on Friday.

Deputy Prime Minister Barnaby Joyce, cabinet colleague Fiona Nash, former minister Matt Canavan, former Greens senators Larissa Waters and Scott Ludlam, One Nation senator Malcolm Roberts and crossbencher Nick Xenophon were referred to the High Court over their dual citizenship.

Australia’s constitution bans anyone holding dual citizenship from sitting in parliament, in a section aimed at ensuring MPs do not hold split allegiances.

The disqualification of Mr Joyce will not only trigger a by-election in his regional NSW seat of New England, but Labor says there will also be legal questions over ministerial decisions by him and senators Nash and Canavan.

The Nationals leader is widely expected to win a by-election but it will be a concern for the government, which has held on to power by one seat since the 2016 election.

Nine News political editor Chris Uhlmann said parliament would become a “tactical circus” for the rest of the year if Mr Joyce was removed.

The earliest a by-election can be held is December 2 and he said there would be at least one parliamentary sitting week where the government would not have a majority in the House of Representatives.

Decisions made by former minister Senator Matt Canavan will likely be questioned if he is found to be ineligible to sit in Parliament. Picture: Kym Smith

Prime Minister Malcolm Turnbull has said he is confident that the High Court will not take a literal interpretation of a 116-year-old section of the constitution that bans “a subject or citizen of a foreign power” from sitting in Parliament.

With Mr Turnbull heading to Israel, Foreign Minister Julie Bishop will step into the acting prime minister role if Mr Joyce is disqualified.

The government argues the constitutional phrase “is a subject or citizen ... of a foreign power” should be seen to refer only to a person who has voluntarily obtained, or retained, that status.

Solicitor-General Stephen Donaghue argued it was reasonable that where a person had no knowledge they ever were a foreign citizen, they should not need to take any steps to renounce their citizenship.

Ms Waters and Mr Ludlam have already resigned from parliament over their dual citizenship by birth in Canada and New Zealand, respectively.

Greens Senator Scott Ludlam announces his resignation at WA Parliament House. Picture: Colin Murty The Australian

India-born One Nation senator Roberts was found by the High Court in September not to have properly renounced his UK citizenship by descent — through his Welsh father — at the time of his 2016 election nomination.

Mr Joyce and senators Canavan, Nash and Xenophon were born in Australia but were made citizens by descent.

Senator Xenophon, who found himself to have British citizenship by descent, will leave parliament whatever happens, to contest the South Australian state election in March 2018.

Ms Nash inherited British citizenship from her father and Mr Canavan became an Italian through his maternal grandparents. Contentious decisions made by ineligible ministers could be challenged in the courts.

At the emergency hearing two weeks ago, the High Court heard doubts about whether Canavan’s Italian citizenship was valid.

The Australian Constitution took effect in 1901 and only two politicians before now had ever been caught by the ban on dual nationals.

In both cases, the politician was born overseas and was disqualified from Parliament. But four of the seven currently under a cloud — the three ministers and Nick Xenophon — are Australian-born and did nothing to become foreign citizens.

Nick Xenophon Team leader Senator Nick Xenophon announced earlier this month he will quit federal parliament to run in the South Australian state election. Picture: Mick Tsikas/AAP

The government argued that only New Zealand-born Scott Ludlam and India-born Malcolm Roberts should be disqualified. The government argues that those two senators from minor parties failed to take reasonable steps to ensure they were not dual nationals.

Government lawyer Stephen Donaghue told the High Court judges the other five politicians should not be disqualified because they did not voluntarily acquire or retain citizenship of another country.

“If a person is not aware either that they are a dual citizen or of a significant prospect that they are, in our submission by definition that person cannot have a split allegiance,” Donaghue told the court.

Bret Walker, a lawyer for Joyce and Nash, told the court that neither knew until recently that they were dual citizens of New Zealand and Britain, respectively. As soon as they found out, they took all reasonable steps required to sever their foreign ties, Walker said.

“There’s no split allegiance where you’re not aware of one,” Walker told the court. “You cannot heed a call you cannot hear.”

Roberts, who became a British citizen through his Welsh father and represents the anti-immigration, anti-Muslim One Nation party, argued through his lawyer Robert Newlinds that it would be “un-Australian” to treat Australian-born citizens differently to immigrants.

Public attention has focused on politicians’ eligibility since July 14, when Ludlam, the then-deputy leader of the minor Greens party, revealed he was still a Kiwi and had been unlawfully elected to the Australian Senate three times since 2007.

Days later, Larissa Waters, the Greens co-deputy leader, revealed that she retained the citizenship of Canada, where she was born. She and Ludlam are the only politicians among the seven who have accepted that they are not eligible to sit in Parliament and have quit.

Many question whether the ban on dual citizen politicians is appropriate in a nation of immigrants where around half the population was either born overseas or has a migrant parent.

— Staff writers and AP contributed to this report