High Court to rule on whether Barnaby Joyce is a New Zealander

Barnaby Joyce may be a New Zealand citizen. AAP/Lukas Coch

The government has been rocked by advice from the New Zealand government that Deputy Prime Minister and Nationals leader Barnaby Joyce might be a citizen of that country, making him ineligible to be a federal MP.

The government is referring the case to the High Court but Malcolm Turnbull, on the basis of legal advice that Joyce’s eligibility won’t be struck down, has asked him to remain in his positions. Section 44 rules out dual citizens standing for parliament.

Joyce told the House of Representatives on Monday morning: “Last Thursday afternoon, the New Zealand High Commission contacted me to advise that, on the basis of preliminary advice from their Department of Internal Affairs which had received inquiries from the New Zealand Labour Party, they considered that I may be a citizen by descent of New Zealand.”

Joyce said he had been shocked. “Neither I, nor my parents, have ever had any reason to believe that I may be a citizen of any other country.”

Joyce was born in Tamworth in 1967 to an Australian mother. “My father, who was born in New Zealand, came to Australia in 1947 as a British subject – in fact we were all British subjects at that time,” he said.

“The concept of New Zealand and Australian citizenship was not created until 1948. Neither my parents nor I have ever applied to register me as a New Zealand citizen.” The New Zealand government had no register recognising him as a New Zealand citizen, he said.

A New Zealand government website says: “If you were born overseas and at least one of your parents is a New Zealand citizen by birth or grant, you are an NZ citizen by descent. To get yourself an NZ passport, you need to register your citizenship.”

Turnbull said the government had sought advice from the solicitor-general. “The government is satisfied that the court would not find Mr Joyce disqualified to sit in the House.

"Nonetheless, in the interest of giving the court the opportunity to clarify the application of this section the government … has decided to refer the matter to the High Court sitting as the Court of Disputed Returns.”

Joyce said that he had asked for the matter to be referred to the court. “Given the strength of the legal advice the government has received, the prime minister has asked that I remain deputy prime minister and continue my ministerial duties.”

Turnbull has written to Opposition Leader Bill Shorten to “offer you the opportunity to nominate any Labor members or senators whose circumstances may raise questions under Section 44 of the Constitution so that the parliament can also refer these matters to the High Court for its consideration.

"There are a number of cases already referred by the Senate and so it would be helpful if all relevant matters court be heard by the court at the same time,” Turnbull wrote.

Labor has not so far had any cases of actual or possible dual nationality arise in this parliament, in contrast to the Greens, the Coalition, and One Nation.

Nationals senator Matt Canavan recently resigned from cabinet, saying his mother had signed him up, without his knowledge, as an Italian citizen. He is disputing whether this is valid. His case is before the High Court. Joyce was sworn into Canavan’s ministerial duties of resources and northern Australia.

Last week the Senate referred One Nation’s Malcolm Roberts to the court to determine whether he was a dual British citizen when he nominated. Two Greens, Larissa Waters and Scott Ludlam, resigned from the Senate after they found they were dual citizens, of Canada and New Zealand respectively.

Turnbull said in his letter that: “It is manifestly in the national interest that the High Court have the opportunity to clarify the limits on the operation of Section 44(i) of the Constitution.

"With around half of all Australians having a foreign-born parent, and with many foreign nations having citizenship laws which confer citizenship by descent, regardless of place of birth, the potential for many, possibly millions of Australians unknowingly having dual citizenship is considerable.”

The loss of Joyce would wipe out the government’s one-seat majority, pending a byelection. At the last election, Joyce held off a challenge in his seat of New England from former independent member Tony Windsor.

The opposition is calling for Joyce to stand aside.

The manager of opposition business, Tony Burke, said in the house: “How on earth can this government have somebody in the office of deputy prime minister when they don’t even know if he’s supposed to be in the parliament?

"This is a government reliant on a majority of one.

"What the house is doing right now is saying to the High Court that we are not actually sure if the government does have a majority of one.

"Saying to the High Court of Australia that we have been here for 12 months making laws with a government that may or may not be legitimate. With a parliament that may or may not be voting according to the constitution of this country,” Burke said.

New Zealand Prime Minister Bill English confirmed Joyce’s citizenship. “Unwittingly or not, he’s a New Zealand citizen,” he said.

“These things are almost always accidental,” English said.

Shorten has told Turnbull he has no-one he wants to refer to the High Court to clarify their status. Replying to Turnbull’s letter earlier in the day, Shorten wrote: “I acknowledge your offer to nominate other members or senators to the High Court. The Labor Party has the strictest processes in place to ensure all candidates are compliant with the Constitution prior to their nomination for election. Therefore, I politely decline your offer.”

In Question Time Turnbull was unequivocal that Joyce’s position would be vindicated.

“The leader of the National Party, the deputy prime minister, is qualified to sit in this house and the High Court will so hold,” he declared.

He said the government did not refer Joyce to the court because of any doubt about his position, but rather because there was a need in the public interest for the court “to clarify the operation of this section so important to the operation of our parliament”.

Labor tried unsuccessfully to gag Joyce when he was asked a question.

The New Zealand government has an online tool to check whether people are NZ citizens.