Starting in July 2017, the eligibility of several members of the Parliament of Australia was questioned. Referred to by some as a "constitutional crisis", fifteen sitting politicians were ruled ineligible by the High Court of Australia (sitting as the Court of Disputed Returns) or resigned pre-emptively. The situation arose from section 44(i) of the Australian Constitution, which prohibits parliamentarians from having allegiance to a foreign power, especially citizenship. On that basis, the High Court had previously held that dual citizens are ineligible for election unless they have taken "reasonable steps" to renounce the foreign citizenship before nomination.
Six senators and Deputy Prime Minister Barnaby Joyce MP, known as the "Citizenship Seven", were referred to the High Court between August and September in 2017. In October 2017, the High Court unanimously determined that five were ineligible to be elected as dual citizens at the time of nomination. In November 2017, three more senators resigned after recognising their dual citizenship, including Senate President Stephen Parry, as did John Alexander MP. His resignation briefly cost the Coalition government its lower house majority, until Joyce and Alexander regained their seats in by-elections.
Following publication of a register of parliamentarians' citizenship status in December 2017, Senator Katy Gallagher and David Feeney MP were referred to the High Court. Feeney resigned in February 2018, before his case was heard. In May 2018, the High Court ruled that Gallagher was also ineligible, thereby clarifying the "reasonable steps" that must be taken when renouncing citizenship to gain exemption from s 44(i). As a result, four more House of Representative members under similar circumstances resigned their seats to re-contest them at by-elections.
The eight senators were replaced by High-Court-ordered countbacks, and were all replaced by candidates from the same tickets at the 2016 election. By-elections were held for the seats of the seven affected House of Representative members; six of the seven re-contested and won their seats, while another was won by a member of the same party.
The crisis prompted calls by some people for constitutional reform to prevent dual citizens from being disqualified, which would require a referendum. An opinion poll taken in late November to early December 2017 found overall opposition to changing s 44(i) of 49% to 47% (within the margin of error), with 5% undecided.
Background
Legal requirements
The Australian Constitution does not require candidates for the Commonwealth Parliament to hold Australian citizenship (which did not come into existence until 1949), but this is now required by the Commonwealth Electoral Act 1918 as amended. Members must not owe allegiance to any other country, including holding a foreign citizenship. Section 44(i) of the Constitution states:
Earlier challenges and High Court interpretation
Section 44(i) has generally been interpreted by the High Court of Australia as meaning that persons with dual citizenship are not permitted to stand for election and that a person must take "reasonable steps" to renounce their citizenship of the other country. The section has rarely been invoked before.
In 1990, George Turner, a Sydney-based barrister and independent Senate candidate, threatened High Court action against federal parliamentarians holding dual citizenship. As a result, The Canberra Times reported that at least nine MPs elected at the 1987 federal election had renounced foreign citizenships.
In Sykes v Cleary (1992), a candidate who had been declared elected in a by-election was found ineligible under Section 44(iv) of the Constitution. The High Court ruled that both of the candidates who were likely to have been elected by a countback were ineligible under s 44(i). When they had become Australian citizens, they had renounced all foreign nationality (as Australian law then required), but they had not attempted to renounce under the law of their home countries and therefore were still subjects of a foreign power. They should have taken at least "reasonable steps" to do that, before nominating. "Reasonable steps" for any future candidate would depend on the individual circumstances. In 1999, in Sue v Hill, the High Court found that a British citizen who had been declared elected to the Senate in 1998 was disqualified under s 44(i). Although the UK had not been a "foreign power" in 1901, it had been since at least the Australia Act 1986.