Opposition Leader Bill Shorten refused to back down as he came under attack for not referring Labor MPs to the High Court over the dual citizenship issue last year, with the opposition leader effectively putting the blame on the courts for moving the legal goalposts.
Three Labor MPs – Justine Keay, Susan Lamb and Josh Wilson – and one Independent – Rebekha Sharkie – stepped down on Wednesday after the High Court ruled that fellow Labor politician, Senator Katy Gallagher, was ineligible to hold her seat.
The four MPs stood down because they said they also believed themselves to be in breach of section 44 of the Australian Constitution that stipulates politicians can’t hold dual citizenship, based on the nature of the court’s decision about Gallagher.
The Labor exodus follows the ousting of nine members senators and two MPs last year over the fact that they held dual citizenship at the time they were elected. At the time, Shorten insisted that Labor’s candidate vetting procedure meant there was no danger of the party’s representatives falling into the same trap of having failed to properly renounce their citizenship in time for election.
“We have a strict vetting process. There is no cloud over any of our people, let’s be straight here,” Shorten reportedly said last August, as the citizenship scandal was heating up.
Gallagher referred herself to the High Court in December, however, after questions were raised by The Daily Telegraph newspaper about her citizenship. She was born in Australia to a British father and Ecuadorean mother.
Gallagher had claimed that she tried to renounce her citizenship before the 2016 election but that the UK bureaucracy had been too slow in dealing with her application, so her dual citizenship was only removed two weeks after she was elected. To get around the issue of the fact that she held dual citizenship at the time she was elected, she attempted to use the “all reasonable steps required” exception that’s contained in Section 44, that allows people to be elected if they hold dual citizenship with a country that prevents citizenship being renounced.
In Gallagher’s case, however, the High Court said that merely taking “all reasonable steps required” to renounce citizenship wasn’t a sufficient defence against accusations of having breached the constitution, when citizenship is held with a country that allows the renunciation of that citizenship. The UK allows its citizens to renounce their citizenship.
The High Court said, in effect, that the steps the senator had taken to renounce her British citizenship weren’t enough to amount to her having stuck by the rules, because it’s not particularly difficult to renounce British citizenship.
Defending his refusal to refer Labor MPs to the courts last year alongside Coalition, Greens, One Nation and independent politicians, Shorten said yesterday that “the High Court has looked at the facts in Senator Gallagher’s matter, they have developed a new test, a stricter test, and we have accepted that,” The Australian reported.
He said Labor had worked under the same legal advice for the past 20 years without any issue but that it accepted there was now a new playing field.
But Coalition Attorney General Christian Porter disagreed, saying that the court had not in fact reinterpreted the constitution in Gallagher’s case, and that the decision it made on the Labor senator’s case was the same as those made against other politicians in 2017. “This decision is not a reinterpretation or a change of the law,” he said, according to reports.
The Australian‘s legal expert Chris Merritt wrote in an opinion piece for the newspaper that Shorten’s claim the court had effectively rewritten the constitution in its latest decision was “utterly wrong”.
Merritt said that Gallagher had been nominated for election two and a half months before she successfully renounced her UK citizenship, putting her in clear breach of the rules as they were explained in last October’s series of cases, Merritt said. She had, he added, simply left it too late to act on on the issue before she was elected.
“In a 1992 case known as Sykes v Cleary, the critical time was the date of nomination. The court made the same point in last year’s citizenship case,” Merritt explained. “It was last year’s ruling, not yesterday’s, that removed any remaining doubts about the “reasonable steps” exception to section 44. It does not help candidates like Gallagher if they do everything they consider to be reasonable yet still fail to renounce foreign nationality.”