The latest batch of politicians to finally admit that they may be dual-citizens

In the hope of providing some clarity to an issue that is becoming increasingly murky, politicised and more than likely to decide the fate of the Prime Minister if not the government, I set out the High Court’s tests for determining whether a politician is ineligible to sit in the Commonwealth Parliament by virtue of their dual citizenship, and apply them to the most recent politicians to admit being in trouble.

In my view the recent unanimous high court judgment is quite clear about the factors that determine whether a politician has dual citizenship and is consequently disqualified from being  an elected Member of Commonwealth Parliament.

1. The overriding issue is, whether at the time of nomination for election a candidate is disqualified from being chosen and serving as a member of Commonwealth Parliament.

2. If at the time of nomination for election a candidate is also a citizen of another country, that candidate is disqualified from standing for or sitting in Commonwealth Parliament. This is the case irrespective of the candidate’s knowledge or lack thereof. In Barnaby Joyce’s case the High Court held that what mattered was not whether he knew that he was a dual citizen but rather whether at the time of nomination he was a dual citizen.

3. As to what constitutes citizenship of a foreign power, the High Court observed that the right of abode was central to the concept of citizenship at international law. On that basis the Court found that Fiona Nash inherited this right, while Nick Xenophon did not have such a right through British Overseas Citizenship.

4. The Court also held that actual Italian citizenship had not been acquired by Canavan, but rather potential citizenship requiring many steps to be taken to activate actual Italian citizenship. The Court also noted that the requirement for this steps appeared consistent with the potential citizenship being able to be passed on indefinitely by descent.

5. The High Court explained how ‘taking reasonable steps to renounce foreign citizenship’ fits in with the determinative test of whether a candidate was in fact a dual citizen at the time she or he nominated for election.

6. With respect to the renunciation of foreign citizenship the Court stated that what constitutes effective renouncing is governed by the law of the foreign country concerned, with one exception. For example, British law requires A British citizen seeking to renounce his or her citizenship to fill out and send to the UK Home Office, Form RN ‘Declaration of Renunciation of British Citizenship’ and pay the requisite fee. The British citizenship ceases when the Form RN is formally registered. A confirmation letter is sent out advising that the citizenship has been renounced and usually stating the day on which the citizenship ceased. For example, Rebekhah Sharkie received a letter from the UK Home Office around July 4 advising that she ceased to be a British citizen on June 29.

7. The Court stressed that the strict test of whether a candidate was in fact a dual citizen has only one qualification – that the foreign law conferring citizenship not prevent an Australian citizen from being able to stand for Australian Commonwealth Parliament – on that basis only requiring  a  candidate  to take all steps that are reasonably required by the foreign law to renounce his or her foreign citizenship.’ This ruled out the fulfilment of requirements such as travel to the other country, performance of military service or being bound by a foreign law that did not permit citizenship to be renounced.

8. The High Court also observed that the taking reasonable steps to renounce foreign citizenship qualification was only relevant before a candidate’s nomination. The qualification does not ask whether a candidate took all reasonable steps in the short time before nominations closed, but rather whether the candidate having taken all reasonable steps required by the foreign law was still unable to renounce the other citizenship.

Let’s apply these rulings to the latest batch of parliamentarians who appear to be disqualified from sitting in the Commonwealth Parliament

Stephen Parry
The former President of the Senate resigned due to UK citizenship inherited from his British born father.  Mr Parry delayed making enquiries about his possible dual citizenship on the advice of senior colleagues and only disclosed his position following the High Court ruling
Likely outcome – found to have dual citizen at the time of his nomination and consequently disqualified. Tasmanian Senate votes will need to be recounted.

John Alexander
Father born in UK, moved to Australia in 1911.
Australian citizenship created 1949, and John Alexander born in 1951.
John Alexander stated he believed his father renounced his UK citizenship
Today (11/11) John Alexander finally conceded that he may be a dual citizen and proposes to resign. This would suggest that John Alexander’s father did not renounced his British citizenship between 1949 and 1951.
Likely outcome – John Alexander will be found to have dual citizenship and disqualified. A by-election will be held for his seat and if he renounces his British citizenship in time he will be entitled to nominate for re-election. (As Barnaby Jones has done)

Josh Frydenberg
Alleged to have inherited Hungarian citizenship from his mother, a Jewish refugee from Hungary.
Frydenberg remains adamant that his mother was stateless when she arrived in Australia, as all Jews in Hungary had been stripped of their citizenship.
He and the PM made statements regarding Mrs Frydenberg Snr. being distressed by public discussion of her refugee days and by being reminded of the holocaust.
Outcome if referred  – Safe if Mrs Frydenberg Snr was indeed stateless when she arrived in Australia. Otherwise likely to be found to have dual citizenship and disqualified. A by-election for his seat would be called.
Comment – Mrs Frydenberg Snr would have been saved the anguish had her boy, Josh, been a good boy and made definitive enquiries regarding his citizenship status prior to nominating for election to parliament.

Pauline Hanson
Senator Hanson is on record as saying that she could move to Britain as she is entitled to dual citizenship
But, she states that neither of her parents was born overseas
She is having her citizenship status confirmed.
Outcome – may have fabricated her entitlement to British citizenship and likely to be cleared if neither parent born in Britain.

Jacqui Lambie
Senator’s father born in Scotland but moved to Australia as an infant
Senator Lambie confident as both parents are Australian citizens (an irrelevant fact)
Likely deciding issue – whether father renounced British citizenship before she was born. On the basis of available information expect her to be disqualified due to dual citizenship and Tasmanian senate votes ordered to be recounted.

Rebekhah Sharkie
Nick Xenophon MP, English born, moved to Australia age 2
On April 19, Rebekha Sharkie sent paperwork to renounce British citizenship
Nominations for 2016 election closed on June 9
July 2, election day
Ms Sharkie states that on about July 4 she received confirmation that she ceased to be a British citizen on June 29
Likely outcome – I would be most surprised if Ms Sharkie was not disqualified on grounds of dual citizenship. By-election likely to be held.

Three Labor members received confirmation of renunciation after they nominated for election

It seems that the Labor Party approved nomination on proof that Form RN had been received by UK Home Office. Although they appear to have legal opinion that this is sufficient, the opinion appears to be wrong since the High Court will look for evidence as to whether the candidate does in fact have dual citizenship at the time of nomination. British law determines whether a person holds British citizenship and how it is relinquished. It holds that British citizenship ceases when the Form RN is formally registered by the UK Home Office. As there is no evidence that the British requirements for renunciation of British citizenship require more than reasonable steps to be taken. I would expect all three Labor politicians to be found to be dual citizens and consequently disqualified.
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Justine Keay 
Had delayed taking steps to renounce British citizenship until after the 2016 election was called. Waited three months as she was reportedly reluctant to renounce her British citizenship. She completed the Form RN on May 9, posted the completed Form on May 13,  Form was officially receipted on May 31, on June 9 nominations closed, Election was held on 2 July, Ms Keay advised that renunciation took effect on July 11,
 Even though Ms Keay was a British citizen at the time of her nomination and the election, she maintains that she did all s he could and considers her referral to the High Court as ‘stupid’.
Outcome – almost certain to be disqualified due to her dual citizenship, creating need for by-election in her seat.

Susan Lamb
Her father is British
On 23 May 2016 she completed and sent to UK Home Office Form RN, “Declaration of Renunciation of British Citizenship”, and paid the requisite fee. On 25 May had confirmation that her Renunciation form had been received by the UK Home Office
She was cleared by the Labor Party and nominated on 7 June
Not clear when when the UK Home Office advised her that she was no longer a British citizen and when her renunciation took effect.
Likely outcome – As for Justine Keay, the High Court is likely to hold that she was a dual citizen and is disqualified.

Josh Wilson
Born in Britain
Filled out Renunciation form on May 12
After receiving confirmation that his form reached Britain was cleared by Labor on May 24
Nominated on June 9
Received advice from UK home office on June 24 that citizenship had been renounced but not the date on which renounced
Outcome – Cleared if British citizenship ceased before June 9, otherwise will be disqualified due to dual citizenship


In addition two replacement senators may be disqualified

Hollie Hughes
After the recount of NSW Senate votes by Australian Electoral Office, Hollie Hughes was to replace Fiona Nash. However, her appointment by the High Court has been delayed following a challenge to her eligibility to be appointed, because she had taken up a part time position with the Administrative Appeals Tribunal following the 2016 election. In so doing, she allegedly falls within the s 44 disqualification of any candidate who ‘Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of the revenues of the Commonwealth’.
Likely deciding question – Does it matter that she took up the AAT position after the election?
Likely answer – no it doesn’t matter because the High Court has consistently held that the filling of a vacancy is a continuation of the election. On that basis she is very likely to be disqualified and a further recount of the NSW Senate votes called.

Andrew Bartlett
Replaced Larissa Waters following a recount of the Queensland Senate votes and has been appointed Senator by the High Court. However, some questions have been raised about his eligibility to sit in Commonwealth Parliament as he took up a University position (ANU) following the 2016 election and on that basis is disqualified from being a Senator by reason of holding an office of profit under the Crown.
Likely deciding issue – whether Andrew Bartlett’s university position constituted an office of profit under the Crown. It seems unlikely that Mr Bartlett’s argument will persuade the High Court as in its authoritative 1992 decision (Sykes v Cleary) the High Court found Phil Cleary was disqualified because at the time of nomination for election he was on leave without pay from his teaching position. This, the Court ruled constituted ‘holding an office of profit under the Crown’. Unless a university post is materially distinguishable from a school teaching position Andrew Bartlett is likely to be found to be disqualified and a further recount of Queensland Senate votes ordered.