Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce

The High Court of Australia considered the eligibility of five federal parliamentarians – Canavan, Ludlam, Waters, Roberts, and Joyce – to sit in Parliament under section 44(i) of the Constitution, which disqualifies any person who is a subject or citizen of a foreign power. The dispute arose from allegations that each of these parliamentarians was, at the time of their nomination or election, a citizen of a country other than Australia, thereby potentially contravening the constitutional provision.

The central legal issue before the Court was whether the respondents, by virtue of their dual citizenship, were disqualified from sitting and voting in the Parliament of the Commonwealth. This required the Court to interpret the meaning of "subject or citizen of a foreign power" within the context of section 44(i) and to determine whether the respondents' circumstances fell within that prohibition. The Court also had to consider the effect of the Parliament's own resolutions and the common law principles relating to the disqualification of members.

The Court reasoned that section 44(i) is a strict prohibition and that the common law doctrine of disqualification, which requires a member to be removed from office if they become disqualified after election, does not apply to the initial eligibility for election. The Court held that a person is disqualified under section 44(i) if they are a citizen of a foreign power, regardless of whether they took any steps to renounce that citizenship or were aware of it. The Court distinguished between being a "subject" and a "citizen," finding that the latter term encompassed all persons who hold citizenship of a foreign power, even if they have taken steps to divest themselves of it, provided those steps were not effective before nomination or election. The Court also clarified that the Parliament cannot legislate to override section 44(i) or to validate the election of a disqualified person.

The Court ordered that Senator Canavan, Senator Ludlam, Senator Waters, and Mr. Roberts were not disqualified. However, it declared that Mr. Joyce was disqualified from sitting and voting in the Parliament.