During 2017 several cases of possible breach of section 44(i) came to light, and in two cases (Ludlam and Waters) the member had resigned from the Parliament. All cases but one (Joyce) arose in the Senate. The cases involving Ludlam, Waters, Canavan, Roberts and Joyce were referred in August to the
High Court as the
Court of Disputed Returns, followed the next month by those of Nash and Xenophon; each reference, both those by the Senate and that by the House of Representatives, had all-party support. At the hearing, the
Attorney-General for Australia had argued that five of the seven parliamentarians should be exempt from disqualification, excluding Ludlam and Roberts, since they were entirely unaware of their
dual citizenship. This argument was not accepted by the High Court, meaning the five parliamentarians found to have held a foreign citizenship were ineligible for election. Canavan and Xenophon were the only two of the seven not found to have held a foreign citizenship.
Parliamentarians alleged to have dual citizenship Scott Ludlam Scott Ludlam had been a
Greens senator for Western Australia since 1 July 2008. On 14 July 2017, Ludlam announced that he still retained New Zealand citizenship from his birth in New Zealand, and consequently would be resigning from parliament. Ludlam with his family had settled in Australia aged eight, and had previously assumed he lost his New Zealand citizenship when he naturalised as an Australian citizen in his mid-teens. Since Ludlam was ultimately found to have been ineligible to be elected, his seat was filled by a countback of the
2016 federal election in Western Australia, resulting in
Jordon Steele-John, the next un-elected Greens candidate on the Senate ticket in Western Australia, winning the seat. Steele-John is a 23-year-old disability rights advocate, who is Australia's youngest senator in history. As of 8 October 2017, Ludlam has not renounced his New Zealand citizenship and has no immediate plans to return to politics.
Larissa Waters Larissa Waters had been a
Greens senator for Queensland since 1 July 2011. The revelation of Ludlam's dual citizenship prompted Ludlam's fellow co-deputy leader of the Greens, Senator
Larissa Waters, to similarly check whether she also held
Canadian citizenship. On discovering that she did, she resigned on 18 July 2017, four days after Ludlam. Waters was born in Canada to Australian parents who briefly lived there. The family returned to Australia while Waters was still a baby. She had previously believed that she was solely an Australian citizen, and that if she had wished to gain Canadian citizenship she would have needed to take active steps before age 21. However, she discovered she had in fact always held Canadian citizenship by birth. Her seat was filled by a countback, returning former
Democrats leader
Andrew Bartlett, who held the second position after Waters on the Greens' 2016 Senate ticket in Queensland, to the Senate. Waters applied for renunciation of her Canadian citizenship on 27 July, which came into effect on 5 August, and she announced she would seek to re-enter the Senate. On 6 September 2018, Waters was appointed to fill the casual vacancy caused by the resignation of her replacement, Andrew Bartlett, to contest the House of Representatives division of
Brisbane.
Matt Canavan Matt Canavan has been a
Liberal National Party senator for Queensland since 1 July 2014, and a Minister since 18 February 2016. On 25 July 2017, Canavan resigned from his positions of
Minister for Resources and
Northern Australia over doubts as to his eligibility to be a member of the parliament, after discovering that he was considered by the Italian authorities to be a
citizen of Italy. Canavan's mother had registered him as an
Italian resident abroad with the Italian consulate in Brisbane in 2006. Canavan stated he was unaware of this until his mother was prompted to inform him following news of the resignation of two Greens senators holding dual citizenship. The government took the view that he is not in breach of the Constitution as the registration was not made with Canavan's knowledge or consent. On 8 August 2017, with all-party support, the Senate referred the position of Canavan, along with the cases of Ludlam and Waters, to the High Court as Court of Disputed Returns. The Attorney-General indicated that the Commonwealth will argue, in favour of Cavanan, that section 44(i) requires a personal acknowledgement of the connection. Canavan spoke in support and stated that he would not be voting in the Senate until the High Court decision. As of 24 August, he accepted that, owing to a change in Italian law in 1983, he had been an Italian citizen since he was two years old. However, the Court has been told that Italian experts are uncertain of the effect of that change: one view is that it conferred citizenship automatically, the other that it only conferred eligibility to "activate" citizenship; on the latter view, which Canavan's counsel has proposed be preferred, Canavan has never been an Italian citizen. Canavan expressed uncertainty over whether, if he was disqualified, he would have chosen to remain in politics. If he had been disqualified, it was expected that the seat would go to
Joanna Lindgren, who lost her Senate seat when the Queensland LNP's vote share was reduced at the 2016 election. The High Court found that Canavan's mother had registered him as an Italian resident abroad, but that this did not amount to a declaration of
Italian citizenship, thus Canavan was not disqualified. Roberts released a statutory declaration stating that he was only a citizen of Australia. A spokesperson for Roberts stated that Roberts was "choosing to believe that he was never British". Doubts persisted about the status of Roberts'
Indian citizenship after it was argued in the media that under a precedent set by the Supreme Court of India, he continued to be a 'presumed citizen' of the country. On 9 August the Senate, with all-party support, referred Roberts' position to the High Court as Court of Disputed Returns. The reference was moved by Roberts's party leader
Pauline Hanson, with his support. He did not respond to a question in the Senate whether he would be voting before the Court's decision. Justice
Patrick Keane conducted a hearing to determine factual issues on 21 September. Roberts and his sister Barbara were cross examined as well as two expert witnesses on British citizenship. The following day, Keane handed down his findings on that evidence, finding that at the date of his nomination for the Senate (1) Roberts was a British citizen, (2) he knew that there was at least a real and substantial prospect that he was a British citizen and (3) Roberts could have, but did not, take steps to renounce his British citizenship. Roberts's seat was filled by a countback, which led to his replacement by the third candidate on the Queensland One Nation ticket,
Fraser Anning. the bankruptcy petition against him had been withdrawn by 3 October. After he was sworn in, Anning resigned or was expelled from One Nation and opted to sit as an independent. He was not elected. In September 2017, before the High Court ruling on Roberts's eligibility, blogger Tony Magrathea initiated a High Court action alleging that Roberts had sat in the Senate while disqualified, contrary to the
Common Informers (Parliamentary Disqualifications) Act 1975. On 24 June 2019, the High Court found the allegation proved and ordered Roberts to pay a penalty of $6,000 to Magrathea. At his request, the government moved in the House of Representatives that Joyce's position be referred to the High Court as the Court of Disputed Returns, which was carried with all-party support. He did not resign from his ministerial offices and continued to vote in Parliament. It was reported that two leading experts on constitutional law did not share the government's total confidence about Joyce's eligibility. The High Court permitted
Tony Windsor, the independent former MP who was defeated by Joyce for the
Division of New England in the 2016 general election, to be joined as a "contradictor" in the eligibility case. After the High Court's decision was handed down on 27 October, Windsor declared that he would not run in the resulting by-election. In
the by-election on 2 December 2017, Joyce was elected with almost two thirds of the vote and an increased majority; he took his seat on 6 December.
Fiona Nash Fiona Nash had been a
National Party senator for New South Wales since 1 July 2005, and a Minister since 21 September 2015. Three days after the announcement from Nationals leader Joyce, on 17 August 2017, Nationals deputy leader and Senator, Nash revealed that she had
British citizenship by descent through her
Scottish father. She elected not to step down from leadership or cabinet while she was referred to the High Court. By 27 August, Nash had renounced her British citizenship, but on 4 September the Senate referred her case to the High Court. When the other replacement senators were appointed on 10 November 2017, the countback indicated that Hollie Hughes—the first unelected candidate on the
Coalition New South Wales Senate ticket—should be declared elected, but Hughes' own eligibility was in doubt. After Hughes was ostensibly an unsuccessful candidate at the previous election, she had been appointed to the federal
Administrative Appeals Tribunal, an office of profit under the Crown, which would disqualify Hughes under
section 44(iv) of the Constitution; Hughes had resigned from this job immediately after the Citizenship Seven decision, hoping that she would then be eligible in the countback. On 15 November the High Court found Hughes to be ineligible, Later he said he had renounced Greek citizenship but, on finding he might be British, he had sought clarification from British authorities. On 19 August, he announced that British authorities had confirmed he is a
British Overseas citizen, a lesser form of
British nationality. He stated that he would not resign from the Parliament, but would await a High Court decision. Together with that of Nash, Xenophon's case was referred to the Court on 4 September. He did not name a date of resignation, although he did state his intention to remain in federal parliament until the High Court ruled on whether he had been validly elected. The High Court ruled that Xenophon's status as a
British Overseas citizen did not fall within section 44(i), so that he had been validly elected. Because of the political implications of the outcome of the case, the Court's decision was intensely anticipated. In the preliminary hearing on 12 October 2017, Chief Justice
Susan Kiefel observed: "It is hardly necessary to say that the Court is aware of the need to give its answers to these references with or without reasons as soon as possible. As counsel and instructing solicitors would appreciate, it is not always possible for the Court to do so immediately." On 27 October 2017 the High Court handed down its single joint judgment. In a unanimous judgment, the Court interpreted section 44(i) according to the "ordinary and natural meaning" of its language. It was found that Xenophon was a
British Overseas citizen, but that this did not give him the right to enter or reside in the United Kingdom; therefore, for the purposes of section 44(i), he was neither a citizen nor entitled to the rights and privileges of a citizen of the United Kingdom. Nash's roles were given to
Darren Chester and
Mitch Fifield as acting ministers.
Nigel Scullion became the parliamentary leader of the National Party, while the position of
Deputy Prime Minister remained vacant.
Julie Bishop, deputy leader of the Liberal Party, served as
acting prime minister when necessary. The seats of the disqualified Senators were filled by countbacks of the
2016 Senate election results in their states of Western Australia, Queensland and New South Wales. The countback results were announced on 10 November: in Western Australia, the Greens' Scott Ludlam was to be replaced by the Greens'
Jordon Steele-John; in Queensland, the Greens' Larissa Waters was to be replaced by former Australian Democrats leader and current Greens member
Andrew Bartlett, One Nation's Malcolm Roberts was to be replaced by One Nation's
Fraser Anning, and the Nationals' Fiona Nash was to be replaced by Liberal Hollie Hughes. However, the court delayed the appointment of Nationals' Fiona Nash's replacement Liberal Hollie Hughes due to concerns that Hughes may be ineligible under section 44(iv) of the Constitution as a holder of an
office of profit under
the Crown; Hughes was reappointed to the
Administrative Appeals Tribunal – a role that would ordinarily disqualify her under that section – in the period following her apparent election defeat but resigned from the position prior to the recount. The question was whether her tenure of that office had overlapped with the process of the election. Steele-John, Bartlett, and Anning were sworn in as senators on 13 November 2017; however, Anning immediately resigned from One Nation to sit as an independent. Nash's seat was instead filled by another countback excluding both Nash and Hughes, which elected Liberal
Jim Molan.
Aftermath A writ for a
by-election for 2 December in Joyce's former seat of
New England was issued on the same day as the High Court's judgment. Losing this seat would cause the Coalition to lose its majority. On the following day, the National Party endorsed Joyce as its candidate. Joyce was now eligible for election, having renounced his New Zealand citizenship in August 2017. All of
section 44 has already been examined extensively, particularly by a Constitutional Commission in 1988 and by a parliamentary committee in 1997, but their proposals have not been pursued. According to some legal opinions, more than 100 Turnbull government decisions are vulnerable to legal challenge as a result of Joyce and Nash's dual citizenship status, with lawyers concluding there is a high likelihood that the work the pair has done over the last year will end up before the courts, because of
section 64 of the constitution, which requires ministers to be members of Parliament. The court could decide, however, that the decisions are valid because they were made by a person who was "clothed with the authority of an office". The disqualified senators and members had collected over $9 million in base salary, ministerial bonuses and other allowances over the period that they were ineligible to sit. The government could demand repayment of such amounts or it can waive repayment. In
Re Culleton (No 2) (2017), for example, the government demanded repayment from
Rod Culleton, after he was found to have been ineligible, as "a debt to the commonwealth", and indicated it might also seek repayment of superannuation payments, other entitlements and staff payments. There is also possibility of an action being brought under s 3 of the
Common Informers (Parliamentary Disqualifications) Act 1975, The final legal bill paid by the government was $11.6 million. In March 2018, the government waived the debt for salaries and expenses (salaries, superannuation and electorate allowances, as well as non-salary expenses, such as, staff expenses, office expenses and travel expenses) received by the six MPs who lost their jobs as a result of dual citizenship, saying that they acted "in good faith". Amid continuing allegations that further members of the Parliament possess dual citizenship, there have been increasing calls for a "citizenship audit" of the Parliament, as well as speculations on the Prime Minister's own future. The audit proposal comes from minor parties and is opposed by the two major parties, although Labor has come to support some sort of parliamentary review. Both major parties appear to have been conducting their own internal reviews. The Greens plan to propose a select committee of the Senate, to report on the eligibility of all Senate members by 27 November, and hope that a similar committee may be established in the House or, alternatively, there could be a joint committee if not a commission of inquiry. On 6 November, Prime Minister Turnbull proposed a set of measures under which all federal politicians would be required to publicly declare their citizenship history. The Labor Opposition had criticisms. On 13 November it was reported that the Government and the Opposition had agreed to propose what media termed a "quasi-audit", modelled on the pecuniary interests register. All members of the federal parliament were required to disclose by 1 December their date and place of birth, citizenship at birth, and details of their parents and grandparents; if they were born overseas, details of their naturalisation as Australian citizens; and an account of how they have satisfied themselves that they are not dual citizens and what they have done to renounce any foreign ties of this kind. Failure to fully comply with the register, including provision of misleading information, may constitute
"serious contempt" of Parliament (a criminal offence). This scheme was adopted on that day by the Senate The threat was repeated by a senior minister on 12 November, despite the government having lost its majority in the House. On 28 November 2017, Prime Minister
Malcolm Turnbull asked the Commonwealth Parliament's Joint Standing Committee on Electoral Matters (JSCEM) to conduct a new inquiry into the section, including the possibility of amendment. The report was published on 17 May 2018. On 6 December 2017, the Senate asked the JSCEM to inquire into recent referrals to the High Court as Court of Disputed Returns, with a view to establishing a disclosure mechanism for the other parts of section 44, with particular attention to the cases of
Culleton and
Day. The report was published on 6 February 2018. In the lead-up to the
2019 federal election, the AEC's form for nomination has been updated to ask detailed questions on whether candidates are disqualified under section 44. Three Victorian Liberal candidates, and two in New South Wales have had to withdraw based on section 44 issues. ==Other MPs and Senators who have resigned or been judged ineligible==