Re Canavan

The High Court of Australia, sitting as the Court of Disputed Returns, considered references concerning several federal parliamentarians, including Senators Canavan, Ludlam, Waters, Roberts, and Nash, and the Member for New England, Barnaby Joyce MP. The central dispute revolved around whether these individuals were incapable of being chosen or of sitting as members of Parliament by reason of section 44(i) of the Constitution, which disqualifies any person who is "a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power."

The Court was required to determine the proper construction of section 44(i) of the Constitution, specifically whether it contains an implied mental element regarding the acquisition or retention of foreign citizenship, and whether the referred persons were subjects or citizens of a foreign power, or entitled to the rights or privileges of such, for the purposes of this section. The Court also had to decide whether vacancies existed in the representation of various states in the Senate and the House of Representatives as a result of any contravention of section 44(i), and if so, how those vacancies should be filled.

The Court held that section 44(i) of the Constitution is contravened where a person is a subject or citizen of a foreign power, or entitled to the rights or privileges of such, at the time of nomination for election, regardless of their knowledge or intention. In the cases of Senators Ludlam, Waters, Roberts, and Mr Joyce MP, the Court found that they were indeed subjects or citizens of foreign powers, thereby creating vacancies in their respective parliamentary seats. For Senator Canavan and Senator Xenophon, the Court determined that they had taken all reasonable steps to renounce any foreign citizenship and were not subject to disqualification.

Consequently, the Court declared vacancies in the Senate for Senators Ludlam, Waters, Roberts, and Nash, and in the House of Representatives for Mr Joyce MP. The vacancies for Senators Ludlam, Waters, Roberts, and Nash were to be filled by a special count of ballot papers, while the vacancy for Mr Joyce MP was to be filled by a by-election. No vacancies were found in the cases of Senator Canavan and Senator Xenophon.