Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon

The High Court of Australia considered the eligibility of several Senators to sit in Parliament following their election. The applicants, Senators Canavan, Ludlam, Waters, Roberts, Joyce, Nash, and Xenophon, were all members of the Senate. The dispute arose because each Senator had, at some point prior to their election, acquired citizenship of a foreign country, which raised questions about their eligibility under section 44(i) of the *Constitution*.

The central legal issue before the Court was whether the Senators were disqualified from sitting in Parliament by reason of being under any "disability or incapacity" specified in section 44 of the *Constitution*, specifically section 44(i) which disqualifies any person who is "under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or being a subject or citizen or entitled to the rights or privileges of a subject or citizen of a foreign power". The Court had to determine the scope of this provision and whether the Senators' foreign citizenship constituted a disqualifying "acknowledgement" or "entitlement".

The Court reasoned that section 44(i) is engaged by the mere fact of being a subject or citizen of a foreign power, regardless of whether that citizenship was known or actively asserted. The disqualification is not dependent on the individual's subjective intention or awareness of their foreign citizenship. For those Senators who had dual citizenship from birth, the Court held that they were disqualified unless they had taken all reasonable steps to renounce that foreign citizenship before their nomination. For Senators who acquired foreign citizenship after their election, the Court found they were disqualified from the moment of acquisition. The Court applied the principle that the *Constitution* is paramount and that the eligibility of members of Parliament is a matter of constitutional law, not personal choice.

The Court declared that Senators Ludlam, Waters, Roberts, Nash, and Joyce were disqualified from sitting in the Senate. Senators Canavan and Xenophon were found not to be disqualified.