Re Canavan [2017] HCA 45

Re Canavan [2017] HCA 45

A person with the status of subject or citizen of a foreign power at the time of nomination is disqualified by s 44(i) unless he or she has taken all reasonable steps required by foreign law to renounce that citizenship. Proof of knowledge of citizenship or an implied mental element is not required. Application to facts determined: Canavan and Xenophon not disqualified; Ludlam, Waters, Roberts, Joyce, Nash disqualified due to dual citizenship not renounced at nomination.

Parties
Referred Person: Senator the Hon Matthew Canavan; Referred Person: Mr Scott Ludlam; Referred Person: Ms Larissa Waters; Referred Person: Senator Malcolm Roberts; Referred Person: The Hon Barnaby Joyce MP; Referred Person: Senator the Hon Fiona Nash; Referred Person: Senator Nick Xenophon; Party: Attorney-General of the Commonwealth; Contradictor: Mr Windsor; Contradictor: Amicus Curiae (G R Kennett SC)
Jurisdiction
Australia
Judgment Date
27 October 2017
Procedural Posture
Reference to Court of Disputed Returns / Final Judgment
Outcome
Some referrals upheld, others dismissed; vacancies declared for certain candidates, orders made for filling vacancies.
Legal Topics
Parliamentary Elections, Disqualification of Members of Parliament, Dual Citizenship, Construction of S 44(i) Constitution, Representative Government
Constitutional Law Parliamentary Elections Disqualification of Members of Parliament Dual Citizenship Construction of S 44(i) Constitution Representative Government

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 4 Party arguments 2
Sign in to unlock

Parties

Senator the Hon Matthew Canavan

Referred Person

Mr Scott Ludlam

Referred Person

Ms Larissa Waters

Referred Person

Senator Malcolm Roberts

Referred Person

The Hon Barnaby Joyce MP

Referred Person

Senator the Hon Fiona Nash

Referred Person

Senator Nick Xenophon

Referred Person

Attorney-General of the Commonwealth

Party

Mr Windsor

Contradictor

Amicus Curiae (G R Kennett SC)

Contradictor

Procedural Posture

Reference to Court of Disputed Returns / Final Judgment

Legal Issues

  1. 1 Whether each referred person was incapable of being chosen or sitting as senator or MP by reason of s 44(i) of the Constitution due to dual citizenship
  2. 2 Proper construction of s 44(i) of the Constitution
  3. 3 Whether s 44(i) contains an implied mental element relating to citizenship acquisition or retention

Ratio Decidendi

A person with the status of subject or citizen of a foreign power at the time of nomination is disqualified by s 44(i) unless he or she has taken all reasonable steps required by foreign law to renounce that citizenship. Proof of knowledge of citizenship or an implied mental element is not required. Application to facts determined: Canavan and Xenophon not disqualified; Ludlam, Waters, Roberts, Joyce, Nash disqualified due to dual citizenship not renounced at nomination.

Court Disposition

Some referrals upheld, others dismissed; vacancies declared for certain candidates, orders made for filling vacancies.

Orders

  • Senator Canavan: No vacancy; no further orders.
  • Mr Ludlam: Vacancy; special count of ballot papers; directions as needed by Justice.