Constitutional expert George Williams says Katy Gallagher could survive a challenge to her eligibility to sit in Parliament, after it was revealed the Labor frontbencher was a dual citizen until more than a month after the 2016 election.
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Legal advice to the former ACT chief minister from British and Australian barristers says she took every reasonable step to renounce citizenship by descent from her English-born father Charles Gallagher before nominating for the July 2 poll, and that she meets the standard set by the High Court in recent section 44 cases.
But documents provided to the Senate show the Labor frontbencher was "at the date of her nomination for the 2016 election, a British citizen by descent" and that her moves to renounce in April 2016 took until August 16 to be completed by the UK Home Office.
Amid reports she could have received Ecuadorian citizenship through her mother, Senator Gallagher gave a speech to Parliament on September 4, saying she had renounced any entitlement to citizenship through her father, who was born in the English city of Stoke-on-Trent, "out of an abundance of caution".
She did not reveal she had held and renounced UK dual citizenship a year earlier.
Coalition figures believe Senator Gallagher could be disqualified because of her links to Ecuador, or because her parental grandfather was born in Ireland in 1897. The Irish government's citizenship rules suggest she is most likely entitled to Irish citizenship.
Professor Williams, dean of the University of New South Wales' law school and a constitutional lawyer, said the question of what reasonable steps were required had never been answered.
"The High Court has never set down any detail of what reasonable steps involves," he said.
"My own view is if someone has taken every reasonable opportunity, prior to nomination, to seek renunciation then I think it's unlikely that person would be disqualified, if only because sometimes the High Court would recognise this can take a long time at the other end.
"The court has never given any detailed answer on this type of scenario."
He said long bureaucratic processes by foreign governments were unlikely to lead to someone being disqualified.
"If someone has done those sorts of things within a reasonable period of time, it's very hard to see the High Court would strike someone out because of delay in processing."
If Senator Gallagher is found to be ineligible, she could be replaced by Labor's second candidate, Professionals Australia spokesman David Smith.
Legal advice says Senator Gallagher was a citizen of the United Kingdom and its colonies under 1948 laws, later becoming a British citizen with right of abode under changes in 1981.
The government pledged to refer any Labor MP facing eligibility questions to the High Court, while Senator Gallagher says any referral of her case is in the hands of the Senate.
"Based on all the advice I have available to me I do not believe that I should refer myself to the Court of Disputed Returns, however, ultimately that will be a matter for the Senate to determine," she said on Monday.
Senator Gallagher paid $545 on May 20, 2016, to lodge paperwork with UK authorities, ticking a box stating "British citizen", on the basis of legal advice.
Officials sought original birth and marriage certificates for Senator Gallagher and her parents, a step that British barrister Adrian Berry says was strictly unnecessary under the rules.
Advice from Mr Berry late last month said "at present, Senator Gallagher is not a British citizen".
In further advice to Senator Gallagher, Melbourne lawyers Matthew Collins and Matthew Albert agreed she had done everything possible to secure renunciation.
The pair argued she had taken the steps that the High Court ruled former One Nation senator Malcolm Roberts had failed to take to avoid disqualification.
Further advice to Labor suggests politicians who have taken all reasonable steps have met the legal standard, regardless of when the foreign power acts or completes the process.
Katy Gallagher faces being referred to the High Court after British authorities confirmed she was a dual citizen until more than a month after the 2016 federal election. Photo: Supplied
"The fact that the renunciation did not take effect until a later date, because of the supervening imposition of an unnecessary bureaucratic request for further evidence of the Home Office, and the time it then took for the Home Office to process the request, is not to the point," the advice said.
Senator Gallagher told Fairfax Media while it took days for other MPs to renounce overseas citizenship, her case took nearly four months.
"The advice to me is that I did everything I could under the reasonable steps test to renounce that entitlement, prior to nomination," Senator Gallagher said.
"It actually says that I took more than the reasonable steps, I took every step. There was no further step I could take."
Senator Gallagher said her 2015 statutory declaration to the ACT parliament stating she was not a foreign national was based on her knowledge at the time.
She pledged to cooperate with a committee reviewing her selection for a casual vacancy, accusing ACT Liberals Zed Seselja and Vicki Dunne of "working together, hand in hand".
The Greens and crossbenchers are expected to support government moves to refer Labor politicians with questions about their citizenship status to the High Court.
"There's about 220 people who haven't had the scrutiny I've had," Senator Gallagher said.
Liberal ACT senator Zed Seselja said the former Republic of Yugoslavia and Croatia did not confer him citizenship and the Croatian government had confirmed he was not a citizen.
"While there was no doubt of my citizenship, the President of Croatia, Her Excellency Ms Kolinda Grabar-Kitarovic, confirmed this during the official state visit to Australia in August when she advised Prime Minister Turnbull that I did not hold Croatian citizenship," he said.
