The Labor senator Katy Gallagher faces referral to the high court because she was a British citizen on the nomination date for the 2016 election and may therefore be ineligible to sit in parliament.
Documents made public in the Senate on Monday show that while Gallagher submitted forms to renounce her British citizenship on 20 April 2016, the renunciation was not confirmed until 16 August 2016, well after the 9 June nomination date.
Gallagher, a former chief minister of the ACT, and Labor senator for the territory, claims she is still eligible to sit in parliament because, like Labor MPs Justine Keay and Susan Lamb and Nick Xenophon Team’s Rebekha Sharkie, she took “all steps reasonably required” by foreign law to renounce her dual citizenship.
However, several constitutional law experts have warned it is arguable that reasonable steps are not enough to escape the constitutional disqualification on a strict reading of the high court’s most recent decision in the citizenship seven case.
The new eligibility declarations from all senators – a requirement imposed as a consequence of the dual citizenship debacle that has consumed the parliament for months – were released publicly on Monday.
The Liberal senator Arthur Sinodinos, who has Greek heritage, said in his eligibility declaration his lawyers had received formal advice from the Greek government confirming he had never been a Greek citizen, or entitled to the rights and privileges of one – but he failed to provide a copy of the legal advice.
Sinodinos’s mother and father were born in Cephalonia in Greece but the Liberal senator said in his declaration that he had never been a citizen of any country other than Australia.
The Liberal senator, who is on leave from the parliament and being treated for cancer, later released a letter from the Greek embassy saying there was no record of his registration in Greece.
The One Nation senator Peter Georgiou, who was born in Perth, also says he is eligible to sit in parliament, despite his parents and grandparents being born in Greece, but he does not say what steps he took to confirm his eligibility before he nominated for for election.
Georgiou provided a letter, dated 16 November 2017, from the Hellenic Republic Embassy of Greece in Canberra, that says the acquisition of Greek nationality and citizenship can be proven by registration within the municipal and male registries of the Greek state, and no registration exists for Georgiou, so he cannot be considered a Greek citizen or national.
Georgiou entered parliament in March 2017, replacing Rod Culleton, who was disqualified by the high court under section 44 of the constitution.
The Liberal senator Anne Ruston also declared her paternal grandfather was born in Burwell, England, in 1890, which may have made her father, born in South Australia, a citizen by descent.
But Ruston claimed that because neither of her parents had ever “applied for, or registered interest in, obtaining citizenship from the United Kingdom” they were both “solely Australian citizens all of their lives”. She said she had previously sought advice on her eligibility to get a UK passport and was informed she had “no rights to UK citizenship”.
In a statement issued via Facebook on Monday, Gallagher said she did not believe she should refer herself to the high court but she recognised “ultimately that will be a matter for the Senate to determine”.
Gallagher released legal advice from English barrister Adrian Berry that she had taken “all steps to renounce British citizenship” on 20 April but the same advice states she remained a British citizen until 16 August. In separate constitutional advice, Gallagher’s lawyers claim that the test in Sykes v Cleary, reaffirmed in the “citizenship seven” decision, allowed that a person was eligible if they had taken “all steps reasonably required” to renounce foreign citizenship.
Malcolm Turnbull has released separate legal advice arguing that people who had taken steps to renounce citizenship but were still foreign citizens on nomination date were not eligible.
The high court’s unanimous judgment explicitly warned that section 44 “does not disqualify only those who have not made reasonable efforts to conform to its requirements”. The judgment states that a person who “retains the status of subject or citizen of a foreign power” at the time of nomination will be disqualified “except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law” from participation in representative government.
University of Sydney constitutional expert Anne Twomey has said the law on reasonable steps is still unclear. “It is possible to argue that a strict reading of the judgment is that a person is disqualified if he or she is a dual citizen at time of nomination regardless of what steps were taken beforehand,” Twomey said.
As well as the declarations in the Senate, a resolution covering members of the House of Representatives passed through the lower house on Monday, with declarations expected by mid-week.
The new Senate declarations suggest that a handful of senators had historical problems with dual citizenships – the Liberal Dean Smith, the Green Nick McKim, and the Labor senators Louise Pratt and Lisa Singh.
The Labor senator Sam Dastyari also outlined the exhaustive steps he took to renounce his Iranian citizenship over the months leading to his arrival in the Senate in August 2013.