The High Court, sitting as the Court of Disputed Returns, has decided a special case referred to it by the Senate and the House of Representatives on the question of eligibility of six Senators and one MP under s 44(i) of the Constitution: Senators Matthew Canavan, Malcolm Roberts, Fiona Nash, and Nick Xenophon, the Hon Barnaby Joyce MP, and Scott Ludlam and Larissa Waters (former Senators who resigned on discovering that they may have been ineligible). In each case, material had emerged that these representatives held dual citizenship at the time that they were nominated for election. The Court permitted former MP Tony Windsor to appear as a party to the Joyce matter, and also permitted an amicus curiae to appear as contradictor in the matters of Canavan, Nash and Xenophon (on both, see at ).
Section 44(i) of the Australian Constitution provides that any person who
is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
On 22 September 2017, Keane J delivered a judgment on the evidence relating to Senator Malcolm Roberts’ s 44(i) matter, evaluating what Senator Roberts knew about his citizenship status at the time of his nomination and the steps he took to verify and renounce it before that nomination, and holding that he was a UK citizen prior to his recent renunciation (see below).
On 27 October 2017, the Court unanimously held that Senators Canavan and Xenophon were eligible at the time of their nomination, and that Ludlam, Waters, and Joyce, and Senators Roberts and Nash were ineligible at the time of their nomination.
Construction of s 44(i) (at –)
After restating the text of s 44(i), emphasising that the phrase ‘shall be incapable of being chosen’ relates to the electoral process, of which nomination is a central part, and noting that s 44(i) focuses on the time between that nomination and the completion of the electoral process (at –), the Court recounted the chronology of the referrals and proceedings (see ff). Turning to the different approaches to construing s 44(i), the Court noted (at ) that of the various competing submissions, only those made by the amicus contradictors and on behalf of Windsor gave s 44(i) Continue reading