ALP senator Katy Gallagher elected unlawfully says Attorney-General

Labor senator Katy Gallagher was unlawfully elected in 2016 because she was still British, says the Attorney-General.

Labor Senator Katy Gallagher. Picture: AAP

Labor senator Katy Gallagher was unlawfully elected to the federal parliament in 2016 because she was still British, despite earlier ­applying to renounce her citizenship, Attorney-General Christian Porter has told the High Court.

And Victorian federal MP David Feeney has no proof he renounced his British citizenship, his barrister admitted to the High Court yesterday, during the first hearing to embroil Labor MPs in the dual citizenship fiasco.

Senator Gallagher lodged a renunciation form with the United Kingdom Home Office on April 20, 2016, less than two months before nominations closed for that year’s federal election on July 2.

However, she was still British when nominations closed and when the election was held, with her renunciation not being ­officially registered by British authorities until August 16, 2016.

UK officials asked to see originals of her documents the day before the election, and approved her application only once the extra information was received.

High Court Chief Justice Susan Kiefel — sitting in Brisbane yesterday and presiding over the Court of Disputed Returns — said the timeline of Senator Gallagher’s case “might throw up the question of what date becomes relevant (as to) the taking of her steps (to renounce)”.

Senator Gallagher’s matter is seen by the government as a test case for Labor and other crossbench MPs who were British when they nominated. If she is disqualified under section 44 of the Constitution, the other MPs — including Labor’s Justine Keay and Josh Wilson — will be under increasing pressure to resign or be referred to the High Court.

In written submissions prepared by Solicitor-General Stephen Donaghue QC, Mr Porter argued Senator Gallagher was ­legally ineligible to be elected.

Mr Donaghue said British law was “straightforward” when it came to renouncing citizenship. “It plainly is not impossible or unreasonably difficult for a candidate to renounce British citizenship,” he wrote.

He argued that if Senator Gallagher had not successfully renounced before nominating as a candidate, she was incapable of being chosen as a senator.

Senator Gallagher says she took all necessary steps to renounce before nominating and was legally elected. The court heard two British legal experts are at odds over her case, with Senator Gallagher’s chosen expert arguing the UK authorities had a duty to approve her renunciation immediately, without requesting further information. However, another expert — consulted by Mr Porter — believes UK authorities were well within their rights to demand the extra documents.

In Mr Feeney’s case, he claims he filled out a British citizenship renunciation form in 2007 — before he was elected as a federal Labor senator for Victoria — but can find no proof.

The cases is likely to resume next month when the two experts in Senator Gallagher’s case will be cross-examined, and Mr ­Feeney’s factual evidence will be interrogated.

Chief Justice Kiefel said she hoped the matters would then be heard by the full bench of the High Court in March.