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February 2018: Landmark Constitutional Law Victory in High Court of Australia

February 2018

The firm recently achieved a complete victory in a landmark judgment on Australian constitutional law in the High Court of Australia (Re Canavan [2017] HCA 45) which has enormous implications for the current “citizenship crisis” engulfing the nation’s Parliament.

In August 2017, the Australian Parliament referred questions to the High Court of Australia to determine whether Mr. Barnaby Joyce MP (the Deputy Prime Minister) and 6 members of the Senate were eligible to be elected to Parliament at the last general election in 2016. Section 44(i) of the Constitution states that “a subject or a citizen…of a foreign power” is ineligible to be elected to Parliament, barring dual citizens from being elected. Candidates for election were required to sign a declaration that they complied with this and all other eligibility requirements.

In each reference, the question whether the referred person was disqualified turned upon the proper construction of Section 44(i) of the Constitution, having regard to evidence suggesting that each person held dual citizenship at the time of his or her nomination. The Court appointed Mr. Antony Windsor (a former member of Parliament) as the contradictor to the reference concerning Mr. Joyce MP and Quinn Emanuel was retained by Mr. Windsor to represent him in the references.

Over the six weeks between our initial instructions and the hearing, Quinn Emanuel’s Sydney office worked intensively with its offices in Paris, New York, Washington DC, Hamburg, and Perth to file expert and lay evidence and develop submissions to argue for a literal interpretation of Section 44(i). We urged the Court to eschew readings implying a knowledge or “voluntariness” requirement in relation to the dual citizenship before the engagement of the constitutional disqualification. Rather, we argued that our interpretation was consistent with the text, context, and evidence purpose of the provision, as well as the drafting history of the Australian Constitution and the approach taken by the majority of the Court in its previous leading decision in Sykes v Cleary (1992) 176 CLR 77.

On 27 October 2017, in a comprehensive victory, the High Court of Australia delivered a unanimous judgment adopting our legal reasons and construction arguments regarding the proper interpretation of Section 44(i). The Court declared that five of the seven members, were disqualified from sitting due to their dual citizenship, including Mr. Joyce MP.

Our successful representation in contradicting Mr. Joyce’s eligibility meant that a by-election was held for his seat in the House of Representatives (which Mr. Joyce won). Our victory has also had significant implications for Australian political and commercial life. There have been several changes to the composition of the House of Representatives and the Senate due to the disqualifications, affecting parties across the political spectrum.

More significantly, the judgment has provided a massive wake-up call to Australian politicians to ensure their strict compliance with the eligibility requirements of the Constitution and has brought both the government and opposition together to agree on a protocol going forward for the assessment of the eligibility of current and future members of Parliament to sit.