High Court Citizenship Decision

Posted 2 November 2017

The full bench of the High Court, sitting as the Court of Disputed Returns, returned a unanimous verdict on the eligibility of seven members of Parliament on Friday 27 October.

Only Senators Nick Xenophon and Matthew Canavan were found to have been validly elected, the five other members in question all found by the court to be ineligible to have nominated at the time of the last election. 

Of most significance is the decision on Mr Barnaby Joyce - who was, until 2:15 pm on Friday - the Deputy Prime Minister. The court has ordered that the resulting vacancies be filled by a special count of the ballot papers in the case of former Senators, and through a by-election in the single vacant seat in the House of Representatives. This by-election has been scheduled for 2 December.

So why were some Senators found to be eligible, and others not? The decision rested on the fact of citizenship, not knowledge of it. Section 44(1) makes no reference to a knowledge element, and the court held it should not be construed in that way. Put simply, ‘proof of a candidate’s knowledge of his or her foreign citizenship status (or facts that might put candidates on enquiry as to that status) are not necessary to bring about the disqualifying operation of s 44(i)’.

The court noted that to read a knowledge element into the section would give rise to practical problems, particularly in proving or disproving a person’s state of mind. Also noted, was ‘the regrettable possibility of a want of candour on the part of a candidate or sitting member whose interests are vitally engaged’.

On the fact of foreign citizenship, the court considered what the foreign citizenship of each of the parliamentarians actually entailed – finding for Senator Xenophon, for example, that the British Overseas Citizenship he was entitled to through his father would not allow him to reside in the UK, which the court decided was an essential element of true citizenship. The court was not satisfied that Senator Canavan was in fact an Italian citizen – the court found his citizenship was ‘potential’ rather than actual, as he himself had never taken any steps to acquire it.