Wednesday, 09 May 2018

High Court – Katy Gallagher

Media release

The Hon. Christian Porter MP

The Hon. Christopher Pyne MP
Minister for Defence Industry
Leader of the House

The High Court has today decided that Katy Gallagher was ineligible to be elected to the Senate because she was a dual citizen at the close of nominations for the 2016 Federal Election.

This creates a vacant Senate position for the Australian Capital Territory, which the Government will seek to have filled as soon as practicable.

Confirming the strict test that was established in the previous decision in the case involving Senator Matt Canavan, the effect of the High Court decision is that any person who remained a dual citizen at any point after the close of nominations is ineligible to have been elected and therefore continue sitting in the House of Representatives or the Senate and is in breach of the Commonwealth Constitution. The only exception is where the foreign country makes it unreasonably difficult to renounce the foreign citizenship. Plainly, Britain is not such a country.

The Parliament's Citizenship Register establishes that by their own declaration, four Members of the House of Representatives were dual citizens of Australia and Britain after the close of nominations on 9 June 2016 for the 2016 Federal Election.

The Members who have disclosed that they remained British citizens after 9 June 2016 and were therefore ineligible to be elected and who are in breach of the Constitution by remaining in Parliament are:

Susan Lamb - Labor Member for Longman;
Justine Keay - Labor Member for Braddon;
Josh Wilson - Labor Member for Fremantle; and
Rebekah Sharkie – Centre Alliance Member for Mayo.

All four of these Members failed to renounce their British Citizenship before 9 June 2016 and are accordingly in situations which are, for the purposes of this issue, legally indistinguishable from each other and from former Senator Gallagher. These Members must immediately resign to allow for the orderly conduct of by-elections in each of these seats to ensure the integrity of the Australian Parliament is upheld.

While Bill Shorten had many opportunities to refer each of his three Labor Members to the High Court and was urged to do precisely this to avoid unnecessarily politicising this issue, he repeatedly failed to do the right thing and make these referrals.

The situation now is that any referral to the High Court of any of these Members would do no more than cause a further delay and expense to the taxpayer before reaching a conclusion that now is beyond doubt. The time for the referral of this group has passed and the only course of action is their immediate resignations to allow for by-elections to be held as soon as possible.

While it is never too late to do the right thing, it is now clear that both Bill Shorten and his shadow Attorney-General, Mark Dreyfus, have deliberately mischaracterised the application of previous High Court decisions to their own Members of Parliament and have misled Australians for months as part of a cynical delaying tactic.

Bill Shorten initially claimed that none of his MPs were dual citizens because of Labor's 'extremely stringent vetting process' (Bill Shorten press conference 21 August 2017; The Australian 21 August 2017) and that the difference between Katy Gallagher and the cases of Barnaby Joyce and Fiona Nash were as different as 'night and day' (Canberra Times, 5 December 2017).

Mr Dreyfus claimed Ms Gallagher '…took the reasonable steps that the High Court has spoken of in repeated decisions' (Sydney Morning Herald, 10 December 2017).
These statements were deliberately designed to mischaracterise High Court decisions and mislead the Australian people and what is now going to be tested is Mark Dreyfus's claim that '…Labor, care about the constitutional legitimacy of the Australian Parliament' (Sydney Morning Herald, 10 December 2017).

If Labor does care about the constitutional legitimacy of the Australian Parliament, they must now accept the outcome of the High Court decision and finally do the right thing and demand the resignations of the three Labor

Members who are in clear breach of the Constitution so that the people in their electorates can elect a legitimate representative to the Parliament.