High Court hears arguments to exclude Katy Gallagher from Senate

Allowing Katy Gallagher to stay in the Senate would cause ‘uncertainty and instability’ in parliament, lawyers argue.

Labor senator Katy Gallagher in the Senate chamber. Picture: AAP

Allowing Katy Gallagher to stay in the Senate would cause “uncertainty and instability” in parliament and encourage political candidates to renounce their citizenship at the last minute, government lawyers have argued.

The arguments were laid out in submissions Solicitor-General Stephen Donaghue QC filed to the High Court yesterday.

The lawyers argued Senator Gallagher was incapable of being chosen as a senator at the time of the election and did not “take all reasonable steps” to renounce her British citizenship as required by section 44 of the Constitution.

Senator Gallagher was still British when she nominated for the 2016 election even though she took steps to renounce on April 20 that year, which the lawyers ­argued was not early enough.

“One of the steps which a reasonable person would take in order to comply with section 44 by the date of nomination is to commence the renunciation process in sufficient time to ensure that registration occurs before nomination.

“To fail to leave such time is to fail to take all reasonable steps to conform to the requirements of section 44.”

The lawyers argued if the court were to allow Senator Gallagher to stay in the Senate, it would open the door to candidates waiting until the last minute to renounce. “If it were otherwise, it would be sufficient for a candidate, knowing that their renunciation will take some time to become effective under foreign law, nonetheless to complete the steps necessary to renounce only the day or the hour before nomination.”

The lawyers said this would mean there would be a long period after the election where parliament attempted to figure out who was still a dual citizen and able to sit in parliament. “There would be uncertainty and instability in the composition of the parliament for an indeterminate time whilst the fate of an attempted renunciation is being determined by officials of a foreign country. There might then be further disputes … as to whether the officials of the foreign country processed the renunciation correctly or reasonably.”

If Senator Gallagher is disqualified under section 44 of the Constitution, other Labor and crossbench MPs who were British when they nominated will be under more pressure to be referred to the High Court or resign.

The government has been ­increasing pressure on Susan Lamb to be referred to the High Court in recent weeks.