Re Roberts [2017] HCA 39: High Court Rules on Dual Citizenship

Monday 25 September 2017 @ 9.57 a.m. | Legal Research

On Friday the 22nd of September 2017, the High Court handed down its judgment of Re Roberts [2017] HCA 39. Sitting as the Court of Disputed Returns in Brisbane, Justice Keane held that at the time of the Federal election in 2016, Senator Malcolm Roberts of the One Nation Party, was a joint citizen with the United Kingdom.

Section 44 of the Commonwealth of Australia Constitution (1901)

This case is the first formal dispute with the High Court, and the latest in a long line of controversies, in relation to recent findings that a number of Australian Parliamentarians may be citizens of other country. Under section 44 of the Australian Constitution, any person who:

(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; [...] shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

As such, any person who is a citizen of any other country other than Australia, even jointly as a dual citizen, may not apply for a position in the Australian Senate or House of Representatives.

Sykes v Cleary [1992] HCA 60

The precedent for a decision such as the one in Re Roberts can be found in the 1992 case, Sykes v Cleary. In Sykes v Cleary, the High Court of Australia, sitting as the Court of Disputed Returns on the 25th of November 1992, held that any person who holds dual citizenship is incapable of holding office in the Australian Government unless they have taken all reasonable steps to renounce their other citizenship. In paragraph 53 of Sykes v Cleary, Mason CJ, Toohey and McHugh JJ stated:

“What amounts to the taking of reasonable steps to renounce foreign nationality must depend upon the circumstances of the particular case. What is reasonable will turn on the situation of the individual, the requirements of the foreign law and the extent of the connection between the individual and the foreign State of which he or she is alleged to be a subject or citizen. And it is relevant to bear in mind that a person who has participated in an Australian naturalization ceremony in which he or she has expressly renounced his or her foreign allegiance may well believe that, by becoming an Australian citizen, he or she has effectively renounced any foreign nationality.”

Application of the precedent

In the most recent case of Re Roberts, Justice Keane held that Senator Roberts had not taken “reasonable steps” to renounce his citizenship with the United Kingdom. Senator Roberts was born in India to an Australian mother and Welsh father in 1955. When he was 19, he became an Australian citizen. What was important for this ruling, was whether or not the steps taken by Senator Roberts constituted “reasonable steps” to renounce his British citizenship.

As stated by Justice McKean in paragraphs 116 to 120 of his ruling:

“I find that Senator Roberts knew that he did not become an Australian citizen until May 1974. I find that, as at the date of his nomination for the Senate, he knew that there was at least a real and substantial prospect that prior to May 1974 he had been and remained thereafter a citizen of the United Kingdom.

What steps could Senator Roberts have taken to understand his citizenship status at the time of his nomination?

It is evident from what has already been said that Senator Roberts had access to documents which confirmed that he became an Australian citizen only in May 1974. In addition, he had access to his father's papers which included the registration of his birth with the British Home Office. He could have consulted these documents. As has been noted, it is apparent from his nomination for the Senate and his email of 6 June 2016 that he did refer to some of these papers to inform himself.

Senator Roberts could have sought professional advice on the issue, or he could have communicated by telephone or email with the UK High Commission in Canberra in order to establish his position. He did neither of these things.

What steps did Senator Roberts take to renounce his foreign citizenship before his nomination?

The only step arguably taken by Senator Roberts to renounce his foreign citizenship before his nomination was his email of 6 June 2016. Mr Fransman QC and Mr Berry agree that this email could not be effective as a renunciation because it was not sent to the appropriate authority, namely the Home Office in the United Kingdom. In addition, as I have found, this email could not be effective as a renunciation of his UK citizenship because it did not contain a declaration of truth, and it was not accompanied by the prescribed fee.

What further steps (if any) could Senator Roberts have taken to renounce his foreign citizenship before his nomination?

Senator Roberts could have made effective inquiries of the British High Commission by which he would have been informed of the steps necessary to renounce his foreign citizenship. He could have obtained and completed a form of renunciation declaration, such as Form RN, and returned it with the required fee to the Home Office as he belatedly did.”

This case will now go before the Full Court of the High Court of Australia on October 10, 2017. Should the Full Court find that Senator Roberts was a dual citizen at the time of the 2016 Federal Election, the Senator will have to vacate his seat as Senator for Queensland.

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Re Roberts [2017] HCA 39

Sykes v Cleary (1992) 176 CLR 77

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