High Court to rule on fate of the citizenship seven

The High Court will deliver its decision on the citizenship status of seven federal parliamentarians today | EXPLAINER

Malcolm Turnbull will learn today whether he needs to pull the trigger on a by-election for Deputy Prime Minister Barnaby Joyce. The High Court will deliver its decision on the fate of Mr Joyce and six other former and current federal senators in Canberra at 2.15pm (AEDT). 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 ruling could have serious ramifications for the government given its slender one-seat majority in the House of Representatives, where Mr Joyce represents the seat of New England.

Don’t miss live coverage and full analysis from our team today at The Australian.

WHO ARE THE CITIZENSHIP SEVEN?

Barnaby Joyce and Fiona Nash

Barnaby Joyce and Fiona Nash.

Party: The Nationals, both elected 2004. Mr Joyce is the party’s leader, Senator Nash is his deputy.

Problem: Citizens of New Zealand and Britain when they nominated for parliament.

Their defence: Born in Australia, they involuntarily gained foreign citizenship by descent through their fathers and had no knowledge of their status. Because they had no knowledge, they could not hold an allegiance to another country. Section 44 does not capture persons who unknowingly gain citizenship by descent and take no action to acquire or retain it.

Section 44 risk: Likely to fall foul if the court takes a black letter approach.

Matt Canavan

Matt Canavan.

Party: The Nationals, elected 2013

Problem: Citizen of Italy when he nominated for parliament.

His defence: Born in Australia, he believed he had to register to become an Italian citizen. A 1983 law change that retrospectively made him an Italian from birth was unconstitutional.

Section 44 risk: Unlikely to fall foul if the court finds there is not sufficient evidence he was ever Italian.

Scott Ludlam and Larissa Waters

Scott Ludlam with Greens leader Richard Di Natale and Larissa Waters.

Party: The Greens, elected 2007 and 2010

Problem: Citizens of New Zealand and Canada when they nominated for parliament.

Their argument: Born overseas, they argue they are disqualified under section 44 of the Constitution and should have made inquiries into their citizenship status before nominating for parliament.

Section 44 risk: Likely to fall foul if the court takes a black letter approach.

Malcolm Roberts

Senator Malcolm Roberts.

Party: One Nation, elected 2016

Problem: Citizen of Britain when he nominated for parliament.

His defence: Born in India to a Welsh father and applied to become an Australian citizen in 1974, he believed he was only ever Australian. He argues he already had the full rights of an Australian citizen before 1974, but had the “wit” to check his British status before nominating for parliament and therefore took reasonable steps to renounce.

Section 44 risk: Likely to fall foul if the court takes a black letter approach.

Nick Xenophon

Senator Nick Xenophon.

Party: Nick Xenophon Team, elected 2007

The Problem: British Overseas Citizen when he nominated for parliament.

His defence: British Overseas Citizens do not have the same rights as British citizens, as they do not have the right of entry or right of abode in the UK. There is also “no duty of loyalty” on the part of an unregistered BOC to the UK.

Section 44 risk: Unlikely to fall foul if the court finds he was not a British citizen.

WHAT HAPPENS NEXT?

BARNABY JOYCE: If he wins, he remains in parliament and the government escapes what could be a tumultuous 33-day by-election campaign. Malcolm Turnbull also keeps his one-seat majority in the lower house.

If disqualified, the Turnbull government will head to a by-election in Mr Joyce’s northeast NSW seat of New England and lose its majority. The earliest date the by-election can be held is December 2. Polling suggests he is likely to retain the seat but the government will have six weeks of anxiety and distraction.

Labor could attempt to move a no-confidence motion against the government during that time but even if it had the support of the five crossbenchers the vote would be tied at 74-74 and fail, assuming all remaining government MPs were in the chamber.

Mr Joyce’s longtime nemesis Tony Windsor could put up a solid fight if he decides to stand again in New England. The government is not thinking about a by-election loss, but it would deliver minority government.

FIONA NASH: If she wins, she’ll remain in parliament. If she loses, Senator Nash’s seat would ordinarily go to the next person on the NSW coalition ticket, Liberal Hollie Hughes. The Australian understands Ms Hughes would take Senator Nash’s seat if it became available. She would have to resign from her government position with the Administrative Appeals Tribunal.

MATT CANAVAN: If he wins he will remain in parliament and is expected to get his cabinet post back. If he loses, the next candidate on the Queensland Liberal National ticket was Liberal Joanna Lindgren. There is split opinion as to whether Ms Lindgren could be directed to sit in the Nationals partyroom. The Australian has been told her preference is to sit with the Libs.

Liberal senators Ian Macdonald and Concetta Fierravanti-Wells could also gain an extra three years in the Senate if the High Court finds Senators Nash and Canavan are ineligible to sit in parliament.

MALCOLM ROBERTS: If he wins he will remain in parliament. If he is disqualified his seat will go to the next candidate on the Queensland One Nation ticket, Fraser Anning. Anning was facing bankruptcy proceedings that would have ruled him out of the seat but the case has been dropped. He has announced he wants the seat One Nation leader Pauline Hanson has refused to endorse him.

NICK XENOPHON: Senator Xenophon will quit federal parliament whatever the court rules and contest the 2018 South Australian state election. If he is disqualified the next person on the NXT ticket is business consultant Tim Storer. If he wins the case, there will be a casual vacancy to be filled by NXT. At least three other senior NXT members are interested.

LARISSA WATERS: Ms Waters has already resigned from the Senate. If disqualified she will be replaced by the next person on the Queensland Greens ticket, former Democrats senator Andrew Bartlett. If she wins the case there will be a casual vacancy which the Greens will fill, very likely with Ms Waters. She has renounced her Canadian ties.

SCOTT LUDLAM: Mr Ludlam has also resigned. The next candidate on the West Australian Greens ticket is 23-year-old student Jordon Steele-John. Ludlam has ruled out a return to politics “in the short or medium term”.

With AAP