Citizenship seven: understanding the High Court's ruling

30 October 2017

Professor Mary Crock of Sydney Law School unpacks the High Court's landmark judgment on dual citizenship and eligibility for parliament.

The High Court was tasked with solving a crisis when seven politicians were referred to it over questions about dual citizenship.

With a unanimous decision to declare five politicians ineligible to stand in last year’s federal election, the court has set out clearer requirements for becoming an MP. We asked citizenship law expert Professor Mary Crock to share her perspective on the court’s landmark judgment.

What does the judgment mean for voters?

“For Barnaby Joyce, the only member of the lower house involved in the case, his disqualification means that there must be a by-election in his seat.  This has been set for December 2,” says Professor Mary Crock.

“For the four senators [Fiona Nash, Larissa Waters, Scott Ludlam, and Malcolm Roberts] they lose their ability to be considered for the Senate at the 2016 election.  There is no by-election, so the Australian Electoral Commission (AEC) will do a re-count of the electoral results, focusing on those who put the relevant party above the line.”  

What was the case's biggest challenge for the High Court?

“These cases were not so complex in the interpretation of Section 44 of the Constitution.  The High Court was unanimous,” said Professor Crock.  

“In a clearly worded 44-page judgement, the court rejected invitations from the Solicitor General to interpret Section 44 in a way that would involve consideration of an individual’s belief about their status as a dual national.  

“The Court made it clear that the provision turns on fact – not a person’s belief. It is a question of fact as to whether an individual is or is not the national of another country.  It is also a question of law that is determined by the citizenship laws of the second country.

“The complexity of the cases came in the fact that nationality can flow by birth but also by descent.  And the laws of second country can change over time, creating eligibility where none existed before.” 

Whose eligibility was hardest to determine?

“The most difficult cases were those of Matt Canavan and Nick Xenophon,” said Professor Crock. “In both instances the High Court held the two to be eligible for election because neither had a present entitlement to full citizenship in another country at the time they were elected.

“Matt Canavan acquired an entitlement to apply for citizenship through his mother but, as a matter of fact, was found not to be a citizen of Italy. Nick Xenophon was found to have a hybrid quasi-citizenship through his father that, as a matter of fact, did not give him even the right to enter the United Kingdom. For this reason, he was cleared.”

How will the High Court ruling affect how MPs are elected to parliament?

“This ruling should put everyone on notice that they should take care when standing for federal parliament that they have truly divested themselves of any other nationalities.”

Luke O'Neill

Media and Public Relations Adviser (Humanities and Social Sciences)
The High Court made it clear that the citizenship provision turns on fact – not a person's belief.
Professor Crock

Related articles