2017–18 Australian Parliamentary Eligibility Crisis
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Starting in July 2017, the eligibility of several members of the
Parliament of Australia The Parliament of Australia (officially the Parliament of the Commonwealth and also known as the Federal Parliament) is the federal legislature of Australia. It consists of three elements: the Monarchy of Australia, monarch of Australia (repr ...
was questioned. Referred to by some as a "
constitutional crisis In political science, a constitutional crisis is a problem or conflict in the function of a government that the constitution, political constitution or other fundamental governing law is perceived to be unable to resolve. There are several variat ...
", fifteen sitting politicians were ruled ineligible by the
High Court of Australia The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...
(sitting as the Court of Disputed Returns) or resigned pre-emptively. The situation arose from section 44(i) of the Australian Constitution, which prohibits parliamentarians from having allegiance to a foreign power, especially citizenship. On that basis, the High Court had previously held that
dual citizens Dual or Duals may refer to: Paired/two things * Dual (mathematics), a notion of paired concepts that mirror one another ** Dual (category theory), a formalization of mathematical duality *** see more cases in :Duality theories * Dual number, a nu ...
are ineligible for election unless they have taken "reasonable steps" to renounce the foreign citizenship before nomination.. Six senators and
Deputy Prime Minister A deputy prime minister or vice prime minister is, in some countries, a Minister (government), government minister who can take the position of acting prime minister when the prime minister is temporarily absent. The position is often likened to th ...
Barnaby Joyce Barnaby Thomas Gerard Joyce (born 17 April 1967) is an Australian politician who was the leader of the National Party of Australia from 2016 to 2018 and again from 2021 to 2022. Joyce was the 17th deputy prime minister of Australia during both ...
MP, known as the "Citizenship Seven", were referred to the High Court between August and September in 2017. In October 2017, the High Court unanimously determinedTranscripts: ; ; that five were ineligible to be elected as dual citizens at the time of nomination. In November 2017, three more senators resigned after recognising their dual citizenship, including Senate President Stephen Parry, as did John Alexander MP. His resignation briefly cost the
Coalition government A coalition government, or coalition cabinet, is a government by political parties that enter into a power-sharing arrangement of the executive. Coalition governments usually occur when no single party has achieved an absolute majority after an ...
its lower house majority, until Joyce and Alexander regained their seats in
by-elections A by-election, also known as a special election in the United States and the Philippines, or a bypoll in India, is an election used to fill an office that has become vacant between general elections. A vacancy may arise as a result of an incumben ...
. Following publication of a register of parliamentarians' citizenship status in December 2017, Senator Katy Gallagher and David Feeney MP were referred to the High Court. Feeney resigned in February 2018, before his case was heard. In May 2018, the High Court ruled that Gallagher was also ineligible, thereby clarifying the "reasonable steps" that must be taken when renouncing citizenship to gain exemption from s 44(i). As a result, four more House of Representative members under similar circumstances resigned their seats to re-contest them at by-elections. The eight senators were replaced by High-Court-ordered countbacks, and were all replaced by candidates from the same tickets at the 2016 election. By-elections were held for the seats of the seven affected House of Representative members; six of the seven re-contested and won their seats, while another was won by a member of the same party. The crisis prompted calls by some people for constitutional reform to prevent dual citizens from being disqualified, which would require a
referendum A referendum, plebiscite, or ballot measure is a Direct democracy, direct vote by the Constituency, electorate (rather than their Representative democracy, representatives) on a proposal, law, or political issue. A referendum may be either bin ...
. An opinion poll taken in late November to early December 2017 found overall opposition to changing s 44(i) of 49% to 47% (within the margin of error), with 5% undecided.


Background


Legal requirements

The
Australian Constitution The Constitution of Australia (also known as the Commonwealth Constitution) is the fundamental law that governs the political structure of Australia. It is a written constitution, which establishes the country as a Federation of Australia, ...
does not require candidates for the Commonwealth Parliament to hold Australian citizenship (which did not come into existence until 1949), but this is now required by the ''Commonwealth Electoral Act 1918'' as amended. Qualifications for nomination. Members must not owe allegiance to any other country, including holding a foreign citizenship. Section 44(i) of the Constitution states:


Earlier challenges and High Court interpretation

Section 44(i) has generally been interpreted by the
High Court of Australia The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...
as meaning that persons with
dual citizenship Multiple citizenship (or multiple nationality) is a person's legal status in which a person is at the same time recognized by more than one sovereign state, country under its nationality law, nationality and citizenship law as a national or cit ...
are not permitted to stand for election and that a person must take "reasonable steps" to renounce their citizenship of the other country. The section has rarely been invoked before. In 1990, George Turner, a Sydney-based barrister and independent Senate candidate, threatened High Court action against federal parliamentarians holding dual citizenship. As a result, ''
The Canberra Times ''The Canberra Times'' is a daily newspaper in Canberra, Australia, which is published by Australian Community Media. It was founded in 1926, and has changed ownership and format several times. History ''The Canberra Times'' was launched in 1 ...
'' reported that at least nine MPs elected at the 1987 federal election had renounced foreign citizenships. In ''
Sykes v Cleary ''Sykes v Cleary''.The Case Stated (by Dawson J), and then the individual judgments, are separately paragraph-numbered. was a significant decision of the High Court of Australia sitting as the Court of Disputed Returns on 25 November 1992. The ...
'' (1992), a candidate who had been declared elected in a by-election was found ineligible under Section 44(iv) of the Constitution. The High Court ruled that both of the candidates who were likely to have been elected by a countback were ineligible under s 44(i). When they had become Australian citizens, they had renounced all foreign nationality (as Australian law then required), but they had not attempted to renounce under the law of their home countries and therefore were still subjects of a foreign power. They should have taken at least "reasonable steps" to do that, before nominating. "Reasonable steps" for any future candidate would depend on the individual circumstances. In 1999, in ''
Sue v Hill ''Sue v Hill'' was an Australian court case decided in the High Court of Australia on 23 June 1999. It concerned a dispute over the apparent return of a candidate, Heather Hill, to the Australian Senate in the 1998 federal election. The resul ...
'', the High Court found that a British citizen who had been declared elected to the Senate in
1998 1998 was designated as the ''International Year of the Ocean''. Events January * January 6 – The ''Lunar Prospector'' spacecraft is launched into orbit around the Moon, and later finds evidence for Lunar water, frozen water, in soil i ...
was disqualified under s 44(i). Although the UK had not been a "foreign power" in 1901, it had been since at least the
Australia Act 1986 The ''Australia Act 1986'' is the short title of each of a pair of separate but related pieces of legislation: one an act of the Parliament of Australia, the other an act of the Parliament of the United Kingdom. In Australia they are refe ...
.


Earlier application of section 44 in the 45th Parliament

The prelude to the crisis began when Bob Day of the Family First Party resigned from the Senate on 1 November 2016 following the collapse of his business. Shortly after Day's resignation, the Senate referred to the High Court the validity of Day's election in July 2016 for a possible breach of section 44(v) of the Constitution. It provides that
a person who "has any direct or indirect
pecuniary {{Short pages monitor On 13 November, Alexander resigned and the by-election was called for 16 December, the earliest date possible. Alexander immediately filed papers with the UK Home Office to renounce British citizenship and on 17 November claimed that the application had been approved, making him eligible to stand in the by-election. John Alexander won the by-election.


Jacqui Lambie

On 8 November 2017, it was reported that independent Senator
Jacqui Lambie Jacquiline Louise Lambie (born 26 February 1971) is an Australian politician who is the leader and founder of the Jacqui Lambie Network (JLN). She is a Australian Senate, Senator for Tasmania since 2019, and was previously a Senator from 2014 to ...
may have British citizenship by descent from her father, who migrated from Scotland to Australia as an infant. Lambie had initially said she had "no concerns" about the possibility of her being a dual citizen, with a spokeswoman stating that Lambie would provide any relevant supporting documents when required to by Parliament. However, she sought advice from British authorities. On 14 November 2017, Lambie announced her resignation from the Senate after confirming she held British citizenship, and the Senate referred her case to the High Court as the Court of Disputed Returns on the same day. A directions hearing on 8 December determined that Lambie was disqualified from standing at the 2016 election and that the Senate vacancy should be filled by a special count of the 2016 votes. The countback took place on 12 December 2017. The Electoral Office indicated that Steven Martin would be elected on a countback, and Martin was sworn in on 12 February 2018. However, Martin was the
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and Councillor of Devonport City Council, and the question of whether this disqualifies him from serving as a senator by reason of s 44(iv) of the Constitution (holding an office of profit under
the Crown The Crown is a political concept used in Commonwealth realms. Depending on the context used, it generally refers to the entirety of the State (polity), state (or in federal realms, the relevant level of government in that state), the executive ...
) was referred to the Full Court on 13 December 2017. On 6 February 2018 the Full Court determined that Martin was not ineligible; it published its reasons on 14 March 2018.


Skye Kakoschke-Moore

Nick Xenophon Team (NXT) Senator Skye Kakoschke-Moore resigned from the Senate on 22 November 2017, after discovering that she was a
British citizen The primary law governing nationality in the United Kingdom is the British Nationality Act 1981, which came into force on 1 January 1983. Regulations apply to the British Islands, which include the UK itself (England, Wales, Scotland, and Nor ...
by descent from her mother, who was born in Singapore while it was a British colony and had registered for right of abode in the UK. Kakoschke-Moore had been a British citizen since birth in 1985, but stated that when she was 12, the British embassy in
Oman Oman, officially the Sultanate of Oman, is a country located on the southeastern coast of the Arabian Peninsula in West Asia and the Middle East. It shares land borders with Saudi Arabia, the United Arab Emirates, and Yemen. Oman’s coastline ...
had told her father she was not eligible for a British passport. Kakoschke-Moore's renunciation of her British citizenship became effective on 6 December 2017. The Senate referred Kakoschke-Moore's case to the High Court as the Court of Disputed Returns on 29 November 2017. Kakoschke-Moore sought to be reinstated in the seat on the basis that she had by then effectively renounced British citizenship, but the Court held that "the fact that Skye Kakoschke-Moore renounced her British citizenship with effect from 6 December 2017 does not render her capable of now being chosen to fill that vacancy", and that the vacancy should be filled by a special count of the votes. Kakoschke-Moore and Timothy Storer had both been nominated for the 2016 election for the Senate for South Australia as nominees of NXT. However, since the election Storer had ceased to be a member of NXT by 6 November 2017, and the question of whether Storer should be excluded from the special count for that reason was referred to the Full Court, which on 13 February 2018 ruled that Storer was not to be excluded from the countback, and who assumed the seat on 16 February 2018. The Court published its reasons on 21 March 2018.


David Feeney

Labor MP for
Batman Batman is a superhero who appears in American comic books published by DC Comics. Batman was created by the artist Bob Kane and writer Bill Finger, and debuted in Detective Comics 27, the 27th issue of the comic book ''Detective Comics'' on M ...
David Feeney stated in the citizenship register that his father was born in Northern Ireland, and that he was advised by the party to ensure he renounced British (and potentially Irish) citizenship before nominating. Feeney said he did so in late 2007, but conceded he was unable to produce documentation confirming the renunciation had been registered. The House of Representatives referred Feeney's case to the High Court as the Court of Disputed Returns. During a directions hearing on 19 January 2018, Feeney was unable to submit evidence of his renunciation of citizenship, delaying court proceedings. His legal representative submitted that Feeney's renunciation was lodged, but was not registered by British authorities " r some reason". On 1 February 2018, before any further court proceedings, Feeney announced his resignation from the House of Representatives, and confirmed that he had been unable to find documentation proving his renunciation of British citizenship. On 23 February 2018, the Court held that Fenney had been ineligible to be elected by virtue of s.44(i) and that the vacancy is to be filled by a by-election. A by-election had already been called for 17 March 2018. Feeney did not re-contest the seat in the by-election, which was contested by Ged Kearney for the Labor party. Labor only narrowly won the suburban Melbourne electorate of Batman with Feeney in 2016, facing strong competition and losing the first-preference vote to the Greens' Alex Bhathal. The Greens announced on the same day as Feeney's resignation that Bhathal would run again in the Batman by-election. Kearney won the 2018 by-election with a 3.6% swing towards Labor, in the absence of a Liberal candidate.


Katy Gallagher

Labor Senator Katy Gallagher's mother was a British citizen born in Ecuador to British parents. Gallagher first entered Parliament on 25 March 2015, following a casual Senate vacancy for the
Australian Capital Territory The Australian Capital Territory (ACT), known as the Federal Capital Territory until 1938, is an internal States and territories of Australia, territory of Australia. Canberra, the capital city of Australia, is situated within the territory, an ...
. She filed UK citizenship renunciation papers with the UK Home Office on 20 April 2016, in the lead-up to the federal election in 2016, which took place on 2 July. The UK Home Office accepted her payment as part of the application on 6 May; however, on 1 July, it requested original copies of her birth certificate and her parents' marriage certificate as part of her renunciation, which Gallagher provided on 20 July. The renunciation of her British citizenship was effective on 16 August 2016, after the federal election. On 6 December 2017, at Gallagher's request the Senate referred her case to the High Court. The Senate referred Gallagher's case to the High Court as the Court of Disputed Returns. Her case was considered along with Feeney's during a directions hearing on 19 January 2018. The Attorney-General argued that Gallagher had not taken all reasonable steps to renounce her citizenship. On 9 May 2018, the Court unanimously found Gallagher to have been ineligible. Her disqualification triggered resignations of four other MPs in similar situations, who also attempted to renounce their British citizenships before the election, but were still effectively British citizens at the date of nominations. She was replaced by union official David Smith on 23 May 2018. Gallagher's declaration that she did not hold foreign citizenship when the
Australian Capital Territory Legislative Assembly The Legislative Assembly for the Australian Capital Territory, known in short as the ACT Legislative Assembly, is the unicameral legislature of the Australian Capital Territory (ACT). It sits in the Legislative Assembly Building, Canberra, Leg ...
nominated her to a casual vacancy in the Senate in 2015 prompted an Assembly inquiry into its Senate nomination processes, announced on 30 November 2017.


Justine Keay

Labor MP Justine Keay was born in Australia with British citizenship. She had been preselected by the Labor Party in 2015, but completed the UK Home Office's citizenship renunciation form on 9 May 2016, the day when the Parliament was dissolved for the 2016 federal election. The form was received by the Home Office on 31 May. Nominations for the election closed on 9 June and the election took place on 2 July. She received the British government's declaration of the renunciation on 8 July and the renunciation was registered on 11 July. A legal opinion by David Bennett , a former Commonwealth Solicitor-General, commissioned by the Liberal Party, is that Keay, along with Susan Lamb and Rebekha Sharkie, were ineligible under the High Court ruling because they were British citizens at nomination date. Keay claims that she had taken "all reasonable steps" for renunciation. After Gallagher was disqualified, Keay announced her resignation, triggering a by-election in Braddon.


Susan Lamb

Labor MP Susan Lamb, born in Australia, had received advice that she may be a British citizen by descent through her late father. On 23 May 2016, two weeks before close of nominations for the 2016 federal election, she filed a renunciation form with the UK Home Office. However, Lamb's renunciation form was refused by UK authorities as they were not satisfied that she was in fact a British citizen, and instead requested further documents as proof. Lamb claimed to have fulfilled all the requirements of section 44(i) as she believed she had taken all reasonable steps to renounce her citizenship – if it were the case that she was a British citizen – as she was unable to provide any further documents; she said she was estranged from her mother and that her father had passed away. After Gallagher was disqualified, Lamb announced her resignation, triggering a by-election in Longman.


Rebekha Sharkie

NXT MP Rebekha Sharkie stated in July 2017 that she had renounced her UK citizenship prior to the election. She began the process to renounce her British citizenship on 19 April 2016, before the close of nominations, but the renunciation had not been registered by UK Home Office until 29 June, 20 days after nominations closed, although prior to the election. Sharkie said that in November 2017 Turnbull had advised her that a reference to the High Court might be required in relation to her possible dual-citizenship status at the close of nominations. She argues that she has taken "all steps that were required by the UK to renounce any entitlement to UK citizenship, that were within my power to do so". It has also been suggested that she may be a citizen of the United States. After Gallagher was disqualified, Sharkie announced her resignation, triggering a by-election in Mayo.


Josh Wilson

Labor MP Josh Wilson applied to renounce his British citizenship on 13 May 2016, the day after his unexpected endorsement as a candidate for the 2016 election, nominations for which closed on 9 June. The renunciation was registered and effective on 24 June. After Gallagher was disqualified, Wilson announced his resignation, triggering a by-election in Fremantle.


Other MPs and Senators whose status is to be determined

In response to the revelations, concerns have been raised regarding the citizenship status of a number of other MPs and Senators.


Greek citizenship concerns

It has been suggested that three Liberal parliamentarians Julia Banks MP, Alex Hawke MP, and Senator Arthur Sinodinoscould hold Greek citizenship by descent from a Greek parent or parents. Both Greece and Australia permit dual citizenship. However, all three have entered on the Citizenship Register statements from the Greek Embassy that, since their births were not registered in Greece, they are not Greek citizens; they also refer to legal advice that they are not Greek citizens nor entitled to the rights or privileges of Greek citizenship.


Other foreign allegiance concerns

Katy Gallagher has also faced suggestions from ''
The Daily Telegraph ''The Daily Telegraph'', known online and elsewhere as ''The Telegraph'', is a British daily broadsheet conservative newspaper published in London by Telegraph Media Group and distributed in the United Kingdom and internationally. It was found ...
'' that she may be an Ecuadorian citizen, due to the 2008 Ecuadorian constitution which established the right of citizenship for anyone born in
Ecuador Ecuador, officially the Republic of Ecuador, is a country in northwestern South America, bordered by Colombia on the north, Peru on the east and south, and the Pacific Ocean on the west. It also includes the Galápagos Province which contain ...
, as well as their descendants even if born abroad. Gallagher has stated that the change in law in 2008 had no effect on her, as the change does not apply retroactively to the time of her mother's birth. The ALP has said it has obtained advice from an Ecuadorian legal expert and an Australian constitutional lawyer which advised Gallagher is not an Ecuadorian citizen. Because she has been found ineligible on the ground of her British citizenship at the time of nomination, although she has since renounced it, the question of Ecuadorian citizenship remains relevant only if she wishes to re-enter the Commonwealth Parliament. On 2 November 2017, questions were raised by ''
The Australian ''The Australian'', with its Saturday edition ''The Weekend Australian'', is a broadsheet daily newspaper published by News Corp Australia since 14 July 1964. As the only Australian daily newspaper distributed nationally, its readership of b ...
'' concerning the possibility that Liberal MP and Minister Josh Frydenberg could be a citizen of
Hungary Hungary is a landlocked country in Central Europe. Spanning much of the Pannonian Basin, Carpathian Basin, it is bordered by Slovakia to the north, Ukraine to the northeast, Romania to the east and southeast, Serbia to the south, Croatia and ...
under a Hungarian law designed to prevent
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caused during
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. The report claimed that the retrospective law provided that anyone who had been born within Hungary in the period 1941 to 1945 automatically became a Hungarian citizen, and citizenship in Hungary is passed down by birth right. As his mother was born in Hungary in 1943, an argument was raised that this meant Frydenberg held Hungarian citizenship. Frydenberg said that it was absurd to suggest he had involuntarily acquired Hungarian citizenship as, when his mother and other family members entered Australia in 1950, they were stateless survivors of
the Holocaust The Holocaust (), known in Hebrew language, Hebrew as the (), was the genocide of History of the Jews in Europe, European Jews during World War II. From 1941 to 1945, Nazi Germany and Collaboration with Nazi Germany and Fascist Italy ...
. Prime Minister Turnbull and Attorney-General Brandis condemned the calls as
witch hunt A witch hunt, or a witch purge, is a search for people who have been labeled witches or a search for evidence of witchcraft. Practicing evil spells or Incantation, incantations was proscribed and punishable in early human civilizations in the ...
s. Hungarian citizenship experts have since stated that such citizenship is not automatically conferred and can be restored only if the individual takes action that is "more than a formality". On 11 November 2017, it was suggested that Liberal MP Nola Marino, Chief Government Whip in the House of Representatives, may be a citizen of Italy through marriage to an Italian citizen at a time when Italian law automatically conferred citizenship through marriage, unless her husband had renounced his Italian citizenship on becoming a naturalised Australian prior their marriage in Australia in 1972. Her husband was born in Italy in 1950, and came to Australia the next year. She might also be a citizen of the United States through her father, born in New York. She has denied being anything but an Australian, but has not provided details. In his Citizenship Register entry, Senator Cory Bernardi states that his father and his father's parents were born in Italy. He adds that, when a child, he had asked an Italian consulate whether he was eligible for Italian citizenship and had been told that he was not, because at the time of his birth his father had been solely Australian; but no documentation of this is provided. Bernardi provides a copy of an application in 2006 to renounce Irish citizenship, which he later says he had acquired through marriage, but he has not provided a copy of a response to the application from Irish authorities. Jason Falinski MP has stated a complex heritage, which he claims does not involve current foreign citizenship. However, his account has been questioned, with ''The Daily Telegraph'' reporting that documents from the National Archive of Australia show Falinski's paternal grandparents as being married a year prior to his father's birth – contradicting his statement in the Citizenship Register that his father was born out of wedlock. In response to these suggestions, Falinski said that his grandparents and father would have nonetheless lost their Polish citizenships per Polish law at the time upon emigrating to Australia even if this were the case. It was suggested in May 2018 that Labor MP Anne Aly, born in Egypt, might still have Egyptian citizenship. She then obtained confirmation from the Egyptian embassy in Australia that she had forfeited her Egyptian citizenship upon acquiring Australian citizenship on 6 May 2016, two days before the federal election of 2016 was called.


Citizenship statements by other MPs and Senators

Prior to the implementation of the parliamentary Citizenship Register, several other MPs and Senators who were born outside Australia or are known to have at least one foreign-born parent have made statements clarifying that they were not dual citizens at the time of nominating as a candidate. Among the highest-profile former British citizens were former prime minister
Tony Abbott Anthony John Abbott (; born 4 November 1957) is an Australian former politician who served as the 28th prime minister of Australia from 2013 to 2015. He held office as the leader of the Liberal Party of Australia and was the member of parli ...
and incumbent opposition leader
Bill Shorten William Richard Shorten (born 12 May 1967) is an Australian former politician and trade unionist. He was the leader of the Australian Labor Party (ALP) and Leader of the Opposition (Australia), Leader of the Opposition from 2013 to 2019. He also ...
, who released letters from UK Visas and Immigration and the
UK Border Agency The UK Border Agency (UKBA) was the border control agency of the Government of the United Kingdom and part of the Home Office that was superseded by UK Visas and Immigration, Border Force and Immigration Enforcement in April 2013. It was forme ...
respectively to confirm that they renounced their British citizenship before being elected. British-born politicians who stated they had previously renounced their British citizenship included Labor MP Brian Mitchell, Greens Senator Nick McKim, Liberal MP Paul Fletcher, CLP Senator Nigel Scullion, and Greens Senator Jordon Steele-John. One Nation Senator Pauline Hanson and Liberal MP Ann Sudmalis denied claims that they were British citizens by descent. Parliamentarians who were born overseas or descended from foreign nationals made similar statements, including those who were accused of being citizens of: Italy (Greens Senator Richard Di Natale and Labor MP Tony Zappia); Singapore (Liberal MP Ian Goodenough and Greens Senator Peter Whish-Wilson); Belgium (Liberal frontbencher
Mathias Cormann Mathias Hubert Paul Cormann (; ; born 20 September 1970) is a Belgian-born Australian politician and diplomat who serves as Organisation for Economic Co-operation and Development, Secretary-General of the Organisation for Economic Co-operation a ...
); Greece (Labor MP Maria Vamvakinou); Iran (Labor Senator Sam Dastyari); Malaysia (Labor frontbencher Penny Wong); New Zealand (Senator Rex Patrick); Slovenia (Labor's Deputy Opposition Leader Tanya Plibersek); and the United States (NXT MP Rebekha Sharkie). Senator Derryn Hinch did confirm that he is entitled to a pension through US Social Security, but stated on 2 September 2017 that he would not seek a reference since the Attorney-General had advised him that he was not in breach.


Other Section 44 concerns


Section 44(iv)


Andrew Bartlett

In November 2017, Andrew Bartlett replaced Greens Senator Larissa Waters after a recount. At the time of nomination, Bartlett had been an academic employed by the
Australian National University The Australian National University (ANU) is a public university, public research university and member of the Group of Eight (Australian universities), Group of Eight, located in Canberra, the capital of Australia. Its main campus in Acton, A ...
. He claimed to have legal advice that this did not disqualify him under s 44(iv) and his eligibility was not challenged at the same time as that of Hughes. Nonetheless, the Commonwealth Solicitor-General suggested that the Senate might need to refer his position to the High Court and the Greens were reported to be seeking further legal advice. However, Bartlett resigned from the Senate in August 2018, to allow Waters to return.


Section 44(v)


David Gillespie

A court challenge against Nationals MP and junior minister David Gillespie, was heard by the Full High Court on 12 December 2017, alleging a breach of the "pecuniary interest" requirement in section 44(v) of the Constitution; the Full High Court considered s 44(v) in April 2017 when finding that Senator Bob Day had been ineligible for election. The Opposition
Australian Labor Party The Australian Labor Party (ALP), also known as the Labor Party or simply Labor, is the major Centre-left politics, centre-left List of political parties in Australia, political party in Australia and one of two Major party, major parties in Po ...
and some community groups believe that Gillespie has an indirect financial relationship with the federal government, in that he owns a suburban shopping complex in
Port Macquarie Port Macquarie, sometimes shortened to Port Mac and commonly locally nicknamed Port, is a coastal city on the Mid North Coast of New South Wales, Australia, north of Sydney, and south of Brisbane, on the Tasman Sea coast at the mouth of the ...
with an
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licensee. The action against Gillespie was brought by former Labor candidate for Lyne, Peter Alley, under s 3 of the ''Common Informers (Parliamentary Disqualifications) Act 1975''.. The Act "otherwise provides" following section 46 of the Constitution: under the Act (which appears not to have been used before), a member of the federal Parliament who is sitting while disqualified is liable, to anybody who may sue for it in the High Court, for $200 per day of so sitting, following initiation of the action and for up to 12 months previously. During pre-trial proceedings, a question arose as to whether a common informer action can be brought against a member of parliament without a prior finding of disqualification by the Court of Disputed Returns or the relevant House of Parliament. This question was referred by Bell J to a Full Court of the High Court, with a hearing to be held on 12 December 2017. Alley was represented by leading barrister Bret Walker SC. On 21 March 2018 the High Court stated that it could not hear the case against Gillespie because it was not a reference from Parliament.


Barry O'Sullivan

The media speculated that Queensland Liberal National Senator Barry O'Sullivan may have had pecuniary interests in breach of s 44(v). In the Senate on 13 November 2017, Queensland ALP Senator Murray Watt accused O'Sullivan of three breaches of s 44(v); O'Sullivan was present but did not respond.


New Zealand political row

A row ensued between the Australian Government and the
New Zealand Labour Party The New Zealand Labour Party, also known simply as Labour (), is a Centre-left politics, centre-left political party in New Zealand. The party's platform programme describes its founding principle as democratic socialism, while observers descri ...
after it was reported that a staff member for an Australian Labor senator had asked a New Zealand MP,
Chris Hipkins Christopher John Hipkins (born 5 September 1978) is a New Zealand politician who has served as leader of the New Zealand Labour Party since January 2023 and leader of the Opposition (New Zealand), leader of the Opposition since November 2023. H ...
, to find out whether or not Barnaby Joyce (then Deputy Prime Minister of Australia) was a citizen of that country. Australian Foreign Minister
Julie Bishop Julie Isabel Bishop (born 17 July 1956) is an Australian former politician who served as Minister for Foreign Affairs (Australia), Minister for Foreign Affairs from 2013 to 2018 and Leader of the Liberal Party of Australia#Federal deputy leader ...
accused New Zealand's Labour Party of being "involved in allegations designed to undermine the government of Australia" and Australian Prime Minister Malcolm Turnbull accused the Australian Labor Party of conspiring "with a foreign power". Bishop added that she would find it "very hard to build trust" with the New Zealand Labour Party if it formed government after that country's
general election A general election is an electoral process to choose most or all members of a governing body at the same time. They are distinct from By-election, by-elections, which fill individual seats that have become vacant between general elections. Gener ...
. Bishop's claim of collusion was rejected by the New Zealand Minister of Internal Affairs, Peter Dunne, as well as the New Zealand Labour Leader,
Jacinda Ardern Dame Jacinda Kate Laurell Ardern ( ; born 26 July 1980) is a New Zealand politician and activist who was the 40th prime minister of New Zealand and Leader of the New Zealand Labour Party, leader of the Labour Party from 2017 to 2023. She was ...
, although Ardern had initially criticised Hipkins' involvement. Following the election of the
Sixth Labour Government of New Zealand The Sixth Labour Government New Zealand Government, governed New Zealand from 26 October 2017 to 27 November 2023. It was headed first by Jacinda Ardern (October 2017–January 2023) and later by Chris Hipkins (January 2023–November 2023) ...
, Bishop said that she looked forward to working with Prime Minister Ardern.


Implications for parliamentary majority

At the 2016 federal election, the
Coalition A coalition is formed when two or more people or groups temporarily work together to achieve a common goal. The term is most frequently used to denote a formation of power in political, military, or economic spaces. Formation According to ''A G ...
Government retained power with 76 of 150 seats, a one-seat majority. Before it was clear that the Coalition would win a majority of seats, Katter's Australian Party MP Bob Katter, independent
Andrew Wilkie Andrew Damien Wilkie (born 8 November 1961) is an Australian politician and independent federal member for Division of Clark, Clark (previously Division of Denison, Denison). Before entering politics Wilkie was an infantry officer in the Austr ...
and independent Cathy McGowan guaranteed
confidence and supply In parliamentary system, parliamentary democracies based on the Westminster system, confidence and supply is an arrangement under which a minority government (one which does not control a majority in the legislature) receives the support of one ...
in the event of a
hung parliament A hung parliament is a term used in legislatures primarily under the Westminster system (typically employing Majoritarian representation, majoritarian electoral systems) to describe a situation in which no single political party or pre-existing ...
. On 15 August 2017, Bob Katter announced that, in the event that Joyce's seat was declared vacant, he could not assure that he would support the Turnbull government on confidence and supply; he stated that Turnbull would be "back to the drawing board" for his support. Additionally, Rebekha Sharkie, the sole MP in the House of Representatives for the Nick Xenophon Team, announced on 18 August that she would no longer support the Government on matters of confidence and supply, although reversed that decision on 20 August. Cathy McGowan continued to agree to maintain confidence and supply for the Turnbull government. Andrew Wilkie stated that he " ouldnot vote against budget supply or confidence unless doing so would be clearly warranted." After Barnaby Joyce was found ineligible to sit in parliament, the government no longer had a majority of seats, but did have a majority of sitting members. With the resignation of John Alexander on 11 November, the government lost its majority in the lower house, being reduced to 74 out of 148 members. The majority was regained when Joyce won the New England by-election on 2 December.


Historical eligibility queries

Two early twentieth century Australian politicians may not have been Australian citizens or (as then) British subjects: * King O'Malley: claimed to have been born in Canada, but may have been born in the United States. *
Chris Watson John Christian Watson (born Johan Cristian Tanck; 9 April 186718 November 1941) was an Australian politician who served as the third prime minister of Australia from April to August 1904. He held office as the inaugural federal leader of the Au ...
: British mother and apparently a British father, but born on board a ship in Chilean waters to a Chilean father.


See also

*The natural-born-citizen clause in the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...
, which has also been contested.


Notes


References


External links


Citizenship RegisterHouse of Representatives

Citizenship RegisterSenate
{{DEFAULTSORT:Australian parliamentary eligibility crisis, 2017 2017 controversies Parliamentary eligibility crisis 2018 in Australia Australian constitutional law Political controversies in Australia New Zealand nationality law July 2017 in Australia August 2017 in Australia September 2017 in Australia October 2017 in Australia November 2017 in Australia May 2018 in Australia Turnbull government Parliamentary eligibility crisis 2017 in Australian politics Multiple citizenship