MPs quit as Labor senator Katy Gallagher found ineligible by High Court
Four MPs have quit parliament but vowed to recontest their seats after the High Court disqualified Labor senator Katy Gallagher.
Bill Shorten claims the High Court has made a “new” and “stricter” test on judging the eligibility of MPs under Section 44 of the Constitution, after the court this morning found Katy Gallagher ineligible, sparking the resignation of four MPs, including three of her Labor colleagues.
Voters will face by-elections in Justine Keay’s Tasmanian seat of Braddon, Susan Lamb’s Queensland seat of Longman, Josh Wilson’s WA seat of Fremantle, and Centre Alliance MP Rebekha Sharkie’s South Australian seat of Mayo.
The four by-elections add to a by-election in the WA seat of Perth, brought on by Labor MP Tim Hammond’s resignation last week for family reasons.
In an embarrassing day for the Opposition Leader who had repeatedly claimed no Labor MPs would be implicated in the citizenship fiasco, Mr Shorten claimed he had always acted in good faith.
“In good faith, our candidates and the Labor Party and I have relied on advice that’s been the same advice for over 20 years,” Mr Shorten said.
“But the High Court has looked at the facts in Senator Gallagher’s matter, they have developed a new test, a stricter test, and we have accepted that.
“At these by-elections which weren’t sought, it’s an early opportunity for Australians to cast their view on Mr Turnbull’s proposal to give $17 billion to the big banks.”
Mr Shorten said Labor would not release its legal advice telling the party that Katy Gallagher, Susan Lamb, Josh Wilson and Justine Keay were eligible because they had taken all reasonable steps to rescind their foreign citizenships.
“At all times, the Labor Party has act in good faith. I have relied upon the legal advice provided to me by the Labor Party, the same advice provided to Labor leaders since the mid-90s,” he said.
Mr Shorten said he is “confident” Ms Lamb would be eligible to run for the next election despite being a current British citizen.
“I’m not aware of each piece of paper she has but I am more than confident that as we read this new decision she will be eligible to nominate,” he said.
“The British High Commission will realise they need to process these matters for candidates a lot more quickly.”
Manager of Opposition Business Tony Burke said there was still a cloud over the eligibility of Liberal MP Jason Falinski and he should be referred to the High Court.
Roy won’t stand
Former Liberal assistant minister Wyatt Roy, who held the seat between 2010 and 2016, told The Australian he would not seek preselection for his former seat.
Mr Roy, now general manager of tech firm Afiniti, said he’d been encouraged to run by his colleagues but was happy in private enterprise.
Downer ‘sure starter’ for Mayo
Georgina Downer, daughter of former federal Liberal leader Alexander Downer, is a “certain starter” for preselection in the one-time blue ribbon Adelaide Hills seat of Mayo.
A senior Liberal said Mr Downer told party figures at a social event on the weekend that his daughter was a definite starter for the Mayo preselection, either at a by-election if Ms Sharkie was referred to the High Court over her citizenship or at the next general election.
‘I’m not done yet’: Lamb
Ms Lamb also said today’s High Court ruling changed the way section 44 of the Constitution was interpreted.
“In light of this judgment, I’ll be resigning as the member for Longman and I will recontest my seat in a by-election,” Ms Lamb said.
“I am not done yet. I put up my hand to represent people who were just like me. To represent the workers who rely upon a job, a good job, a secure job, a safe job, with fair pay.
“I put my hand up to be a voice for parents in Morayfield with families who need schools to deliver an education that their children need.
‘Don’t underestimate law’s impact’: Wilson
Mr Wilson said he rescinded his British citizenship shortly after he realised he would be Labor’s candidate for the 2016 election, after Labor’s former Fremantle candidate quit.
He claimed the High Court decision “changed the way the law is understood and interpreted” under section 44 of the Constitution.
Mr Wilson warned the draconian citizenship laws would prevent too many people from joining parliament.
“We shouldn’t underestimate the impact of the interpretation that’s been provided today that will change the way the electoral system works in this country,” Mr Wilson said.
“It will mean for up to one fifth of all Australian citizens who are, or who may be entitled to citizenship of another country, that their ability to participate in federal elections will be significantly constrained.
“Any current dual British citizen who might think of contesting the by-elections which are about to occur, would find that they are prevented from doing so under the current interpretation.”
‘We will keep fighting’: Keay
Justine Keay said the people of Braddon needed a Labor government that would “invest in them and put them first”.
“We will keep fighting, this is bigger than us, it is about giving a voice to those who feel they don’t have one, this is about helping people, that is why I am here,” she told the House of Representatives.
“It is about making our region as wonderful as it is better and better.” Ms Keay claimed she always believed she was eligible but the High Court’s decision today set a “new precedent”.
“Today the High Court has set a new precedent, this is a new rule and I respect this rule without qualification,” she said.”
‘Keay knew she was in strife’
Tasmanian Liberal powerbroker Eric Abetz said Justine Keay’s predicament had been clear for months, and she should have resigned in October, rather than claiming more than $100,000 in salary in the interim.
“At every step along the way Ms Keay knew she was in strife,” Senator Abetz said.
“In October, following the High Court’s earlier decisions I called on her to resign. Instead of doing the honourable thing, she went on to claim more than $100,000 in taxpayer-funded salary despite constantly failing to deliver for her electorate.”
Senator Abetz accused Ms Keay of deceiving her electorate of Braddon.
“While I am pleased she has finally done the right thing, it is disappointing that she, backed by Bill Shorten and (Tasmanian Labor leader) Rebecca White, engaged in a long-running deception against the people of Braddon despite ‘rolled-gold’ assurances,” he said.
“In this by-election the choice couldn’t be clearer: a strong and stable Liberal Government that delivers for the North West or a dysfunctional Labor candidate solely focused on holding onto the trappings of office.”
‘Sorry for inconvenience’
In her resignation speech, Ms Sharkie said: “I was disappointed to learn of the High Court decision regarding former Senator Katy Gallagher but obviously respect the decision of the Court and understand the implications for me.
“Consequently I will resign from the Australian parliament today and seek re-election at the forthcoming by-election.
“I apologise to the people of Mayo for this turn of events and for the inconvenience a by-election will cause them.”
She said she would remain with the Centre Alliance team, which also has two representatives in the Senate.
Unanimous High Court decision
The full bench of the High Court, sitting as the Court of Disputed Returns, this morning ruled Ms Gallagher had breached Section 44 of the Constitution because she remained a British citizen when she nominated for the 2016 election.
Read: High Court’s full judgment
In a unanimous decision the court found there was a vacancy in Ms Gallagher’s ACT Senate seat, which should be filled by a special count of the ballot papers.
The court found Ms Gallagher could not be eligible forelection given that she remained a British citizen after nominating on 31 May 2016 for the July 2 election. “It is not in dispute that on and after the date of her nomination for election as a senator, Senator Gallagher was a British citizen,” the court found.
“It follows that Senator Gallagher was a citizen of a foreign power within the meaning of s 44(i)3.
“Senator Gallagher retained that status until 16 August 2016, when her declaration of renunciation of that citizenship was registered by the Home Office of the United Kingdom.”
Ms Gallagher completed her Form RN declaration of renunciation on 20 April, 2016, and the ACT Labor Party lodged them with the UK Home Office on 26 April.
The court found that at the time Ms Gallagher applied to have her declaration of renunciation registered, the time between lodgement of a declaration and registration varied, and could take “in excess of six months”.
“It could be expedited if good reason was shown to the Home Office,” the court found.
“These matters were not known to Senator Gallagher, who made no enquiry as to them.”
Ms Gallagher acquired her British citizenship through her father, who was born in the UK.
In a statement, Ms Gallagher said she was very disappointed by the outcome of her case, but respected the court’s decision.
“I have spent the last 17 years of my life representing the people of the Australian Capital Territory, firstly in the ACT Legislative Assembly and more recently in the Senate,” Ms Gallagher said.
“It has been an absolute honour to hold elected office.
“I have always performed my duties to the ACT community with honesty, integrity and a desire to make Canberra and Australia a better place for all of us.
“I have always acted on the best available legal advice, which at all times, indicated that I satisfied the eligibility requirements under the Constitution. However, today the High Court has made its decision, and I respect the outcome.
“To the people of the ACT I’m very sorry that this disruption has occurred to one of your federal representatives.
“To have my place in the Senate end like this today is very deeply disappointing but I believe that I have more to contribute to public life and I will take the time to talk with Labor Party members on how I can do this over the months ahead.
“It has been a privilege to serve the Canberra community and the Australian Labor Party in both the ACT and federal parliaments for almost two decades.”
Should she wish to, Ms Gallagher could nominate for preselection to stand on ACT Labor’s Senate ticket at the next election and make a return to federal politics.
In March, Solicitor-General Stephen Donaghue QC told the court Ms Gallagher had failed to take sufficient steps to renounce her British citizenship before nominating for the 2016 election.
Ms Gallagher’s lawyers argued she took all reasonable steps under UK law to renounce her citizenship, in accordance with Section 44 of the Constitution, and British authorities had a “mandatory duty” to register her renunciation on receipt of her application.
Ms Gallagher is most likely to be replaced by Professionals Australia’s ACT director David Smith, who was second on Labor’s ACT Senate ticket in 2016.
Government demands resignations
Earlier, Attorney-General Christian Porter demanded three potentially ineligible Labor MPs resign from parliament today.
Mr Porter said Bill Shorten’s claim the ruling was a new precedent was “rubbish”, declaring the ruling was not a reinterpration of the law as ruled in the “citizenship seven” case last year.
Mr Porter said there were more ineligible MPs that needed to leave parliament, including Labor MPs Josh Wilson, Justine Keay and Susan Lamb as well as crossbench MP Rebekha Sharkie.
“So there is absolutely no change in the law here, and by extension, it means that there four other dual citizens, in fact all dual citizens of Great Britain, who were dual citizens after the close of nominations, who are presently ineligible to sit in the federal parliament, and who should not be sitting in the federal parliament,” Mr Porter said.
“Those four people must resign, they must resign today. Bill Shorten must require the resignation of those three Labor members today and that must occur before close of business today.”
Defence Industry Minister Christopher Pyne would not say if the government would use its numbers in the lower house to refer the MPs to the High Court if they would not resign.
“This is a matter for Bill Shorten,” Mr Pyne said.
‘We are not going to get in the way of Bill Shorten doing the right thing. If he wants to be Prime Minister of Australia, he has to show some ticker rather than being worried about what the union bosses might say from issue to issue, and in this case what the caucus might say.”
Mr Porter said the government did not refer the four MPs earlier because it did not want to politicise the issue.
Additional reporting: Ben Packham, Jared Owens, Michael Owen.
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