The High Court has disqualified ACT Labor senator Katy Gallagher from sitting in parliament, in a decision opening the way for four byelections, three of them in Labor seats.
The decision, reigniting the citizenship crisis, has transformed the immediate political landscape, overshadowing Tuesday’s budget and putting immense pressure on Bill Shorten, who delivers his budget reply on Thursday, to have his three MPs immediately quit.
Gallagher was ineligible to sit because she had not completed the renunciation of her dual British citizenship when she nominated for the 2016 election.
The four MPs in the firing line are Susan Lamb in the Queensland seat of Longman (0.8% margin), Justine Keay from Braddon in Tasmania (2.2%), Josh Wilson who holds Fremantle in Western Australia (7.5%) and crossbencher Rebekha Sharkie from the South Australian seat of Mayo (5.4%).
Labor already faces a byelection for the seat of Perth, with Tim Hammond announcing last week he would resign from family reasons.
Attorney-General Christian Porter declared the court had provided a “crisp and crystal clear clarification” of the law. He called for the resignations of the Labor MPs by the end of the day.
Porter flatly rejected Opposition Leader Bill Shorten’s earlier statement that the court had set a new precedent. Shorten said Labor would now consider the implications of the decision.
Porter said for Shorten to claim it was a reinterpretation was “talking absolute rubbish”.
“We all knew what the circumstance was last October”, when the court ruled on the case of the Nationals Matt Canavan, Porter said.
“Bill Shorten must require the resignation of those three Labor members today, and that must occur before close of business today,” he said.
Neither side looks forward to a plethora of byelections, which are expensive and with unpredictable fallout, so close to a general election.
The contest in Longman would be testing for Labor. The Liberals would have a prospect of picking up Mayo. Sharkie is from the Centre Alliance, formerly the Nick Xenophon Team, the fortunes of which have collapsed.
University of Sydney constitutional expert Anne Twomey said the crux of the court’s decision was that the test of someone having taken reasonable steps to renounce their foreign citizenship – the argument on which Gallagher relied – applied only when the country actually or effectively would not let the person renounce. This did not apply with UK citizenship.
Twomey said the four MPs in question, who were all British citizens when they nominated, were in similar circumstances to Gallagher’s.
She added that “the real problem will be for those people from countries where it is difficult to renounce or it takes a very long time.
“Parties will have to complete pre-selection at least a year before an election to allow sufficient time for renunciation, and even this might not be enough for people from some countries.
“It will also narrow the field for filling casual vacancies to those who have no foreign citizenship, so that renunciation problems can be avoided. The big message here for anyone who might want to be a member of parliament in the future is to renounce now.”
George Williams, from the University of New South Wales, said there could be more MPs caught by the decision.
As a senator, Gallagher’s disqualification does not trigger a byelection – she is set to be replaced on a recount by the next person on the ALP ticket, David Smith.
Sharkie said she would now take urgent legal advice.
“It is my belief that the particulars of my circumstances are materially different to Senator Gallagher’s case. My paperwork was lodged and received by the UK Home Office before the election was called. My paperwork was returned before the election was held.”
Porter rejected her argument that her circumstances were different.
Gallagher said she had always acted on legal advice which indicated she satisfied the eligibility requirements. But she respected court’s decision.
“I believe that I have more to contribute to public life and I will take the time to talk with Labor Party members on how I can do this over the months ahead,” she said.
The citizenship crisis has claimed nine federal parliamentarians since the election. Another two, Barnaby Joyce and John Alexander, were ruled ineligible but are still in parliament after being returned at byelections.
In the earlier stages of the citizenship crisis Shorten had been adamant that all Labor MPs had fulfilled the constitutional requirement on citizenship.
Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.