High Court knocks Barnaby Joyce out in dual citizenship case as byelection looms in New England

The High Court declared Barnaby Joyce ineligible to sit in parliament. AAP/Mick Tsikas

The government has been forced to a December 2 byelection and lost its majority in the lower house after the High Court declared Deputy Prime Minister and Nationals leader Barnaby Joyce ineligible to sit in parliament.

The court also struck down the eligibility of deputy Nationals leader Fiona Nash, who is set to be replaced by the next candidate on the Coalition election ticket – Liberal Hollie Hughes.

But the third Nationals MP before the court, Matt Canavan, who quit the ministry after advice he was an Italian citizen, has been ruled eligible. He will return to cabinet immediately, and was sworn in late Friday. “On the evidence before the court, one cannot be satisfied that senator Canavan was a citizen of Italy,” the court said.

Seven current and former MPs were before the court, which was judging whether they were eligible under Section 44 of the Constitution – which prohibits dual citizens standing for parliament. The court was unanimous on its decision in all the cases, with the eligibility of five rejected and two upheld.

Senate crossbencher Nick Xenophon’s eligibility has been upheld – but he is resigning from federal parliament in the next week or so to contest the South Australian election. His party, the Nick Xenophon Team, will choose his replacement. Xenophon had an unusual form of British citizenship through his father, who came from Cyprus when it was a British territory.

One Nation’s Malcolm Roberts, who had British citizenship, is out. Pauline Hanson announced Roberts would stand for the seat of Ipswich in the coming Queensland election.

Former Greens senators Scott Ludlam and Larissa Waters, who had resigned from parliament, were found to have been ineligible to stand. Ludlam was born in New Zealand, and Waters in Canada.

Malcolm Turnbull told a news conference in Canberra the decision was “not the outcome we were hoping for”.

Some of the decisions contradict the legal advice the government had – in particular about Joyce, who inherited New Zealand citizenship via his father. Turnbull told parliament in August: “The leader of the National Party, the deputy prime minister, is qualified to sit in the house and the High Court will so hold”.

Turnbull will take Joyce’s portfolio of agriculture and water resources on an interim arrangement, and was sworn in late Friday.

Joyce heard the news while he was in his electorate. He goes into the byelection virtually certain to be returned – especially after the former independent MP for the seat, Tony Windsor, announced he would not stand.

Joyce apologised for the “inconvenience” of the byelection. “I respect the verdict of the court.”

He said he was always apprehensive. “I don’t actually stand here totally surprised,” he said. “In my gut I thought this is the way it was going to go.”

The Nationals’ Senate leader, Nigel Scullion becomes the interim party leader during the byelection. But Joyce remains leader of the party.

There will be a week of parliament before the byelection, which could be difficult for the government – but it will not be under threat, because it would have crossbench support against any no-confidence motion.

Independent MP Cathy McGowan said: “I will continue to supply confidence and support to the government”.

While Labor will seek to make some mischief, Speaker Tony Smith has a casting vote if there is a tied result on votes.

Turnbull, at a very brief news conference, insisted the government still had a majority in the house (on the basis of the Speaker’s casting vote).

Opposition Leader Bill Shorten tweeted:

Deputy Labor leader Tanya Plibersek said: “Australia now has a hung parliament with a minority government”.

“We are deeply concerned Australia is facing a period of uncertainty”, because Turnbull had kept Joyce and Nash on his frontbench. She said Labor would be looking at the decisions made by the two ministers.

Turnbull said the government would refer Section 44 of the Constitution to the parliamentary committee on electoral matters to consider whether it should be changed – which would require a referendum.