Malcolm Turnbull

Turnbull no jurist on the constitution

Whatever reputation the prime minister had as a jurist has been trashed by High Court judges.

There were more losers than winners in the High Court's ruling on the so-called Citizenship Seven.

And the list of losers includes more than the five MPs, senators and once-senators who were disqualified from standing at the 2016 federal election because they were deemed to be subjects of a foreign power.

Top of the "others" losers list is whatever reputation Malcolm Turnbull had as a jurist.

The prime minister once proclaimed, now infamously, that his deputy Barnaby Joyce and fellow cabinet minister Fiona Nash were eligible to sit in parliament "and the court will so hold".

Turnbull didn't even come close. All seven High Court judges ruled against the Nationals leaders.

In doing so they created another loser - the Commonwealth solicitor-general, the nation's second law officer behind the attorney-general.

Stephen Donaghue, a respected constitutional lawyer before his appointment in January, gave the government the advice Turnbull relied on for his prediction and to keep both Joyce and Nash in cabinet.

That advice was so strong it convinced Joyce not to quit parliament once he became aware of his New Zealand citizenship.

Donaghue argued before the High Court there was an "implied mental element in relation to the acquisition or retention of foreign citizenship".

That was especially the case for five of the seven: Joyce, Nash, former cabinet minister Matt Canavan, Greens senator Larissa Water and independent Nick Xenophon but not for One Nation's Malcolm Roberts and Scott Ludlam from the Greens.

Deliciously, for critics of Attorney-General George Brandis, the preferred argument was put to the court by Donaghue's predecessor Justin Gleeson.

The pair had a very public falling out in 2016, with Gleeson resigning because of what he said was an "irretrievably broken" relationship.

The court held to the Gleeson argument that it stick to a letter-of-the-law meaning of S 44 (i) of the Constitution: that an Australian citizen is not be prevented from standing for parliament where it can be demonstrated that he or she took all steps reasonably required by foreign law to renounce his or her citizenship of a foreign power.

And in another twist, and one for the winners, Gleeson was briefed by Tony Windsor - the man Joyce defeated for the seat of New England in 2016.

Stay up to date with SBS NEWS

  • App
  • Subscribe
  • Follow
  • Listen
  • Watch