Posted 10/05/2018 by Damon Muller
In what may be its last word on the matter for some time, the High Court, sitting as the Court of Disputed Returns, unanimously ruled that ACT senator Katy Gallagher was a British citizen at the time of her nomination for the 2016 federal election, and was thus unable to be chosen to sit in the Senate. The Court declared Ms Gallagher’s position vacant and ordered that the vacancy be filled by a special count of the ballot papers from the 2016 federal election (although at this stage the Court has not yet directed the Australian Electoral Commission to conduct the count). It is expected that the position in the Senate will be filled by the second Labor candidate on the ACT Labor ticket, David Smith.
In its judgement the Court continued to support a very literal interpretation of section 44(i) of the Australian Constitution, and removed significant ambiguity about the section.
Gallagher argued that, even though the renunciation of her citizenship was not registered until after the close of nominations, she had taken ‘all reasonable steps’ to renounce her British citizenship before the election, and thus should not be ruled ineligible. The Court, however, ruled that ‘all reasonable steps’ were only sufficient where foreign law would otherwise ‘irremediably prevent’ the renunciation of citizenship.
The Court stated that if there is not an irremediable impediment under foreign law, then any foreign citizenship must be fully renounced before the election (which commences for these purposes at nomination). Having insufficient time to complete renunciation before the election does not constitute an irremediable impediment, according to the Court. This will likely have significant implications for party pre-selections in an environment without a fixed election date.
In the wake of the ruling, four further Members of Parliament announced their resignation on 9 May:
- Justine Keay (ALP, Braddon, Tas)
- Susan Lamb (ALP, Longman, QLD)
- Josh Wilson (ALP, Fremantle, WA)
- Rebecca Sharkie (Centre Alliance (previously Nick Xenophon Team), Mayo, SA)
These four seats will each likely be subject to a by-election, along with Perth, for which the sitting member, Tim Hammond, has recently announced his retirement (unrelated to section 44).
Section 33 of the Australian Constitution confers on the Speaker of the House of Representatives the power to issue a writ for the election of a new member. The Commonwealth Electoral Act 1918 specifies that the election (polling day) must be held between 33 and 58 days from the date the writ is issued. However there is no prescribed time within which the writ must be issued, and there have been 20 occasions on which the Speaker has declined to issue a writ for a by-election due to an impending general election (the longest period between the vacancy and the general election being 128 days). The three by-elections triggered by section 44 disqualifications in the current Parliament so far have, however, resulted in writs quickly being issued and polling day following in the minimum allowable period.
At the time of publication the dates for the by-elections have not been announced, but it seems reasonable to expect that all five by-elections will be held simultaneously. If the writs for the by-elections are issued on Friday 11 or Monday 14 May, the soonest the by-elections can be held is Saturday 16 June, or Saturday 23 June if the writs are issued between 15 and 18 May.
With these latest resignations, a total of 17 members and senators (13 per cent of the total Senate and 4.6 per cent of the House of Representatives) will have left the current Parliament due to ineligibility under various subsections of section 44 (15 under 44(i), one under 44(ii) and one under 44(v)). For the three by-elections held so far, in two cases (Barnaby Joyce and John Alexander) the incumbent candidate subsequently won, and in the third (Batman) the incumbent party won with a new candidate.
The Joint Standing Committee on Electoral Matters (JSCEM) is holding an inquiry into section 44, but is yet to report its findings.