Is Senator Payman disqualified? Section 44 redux

Questions have been raised by journalists about whether Senator Payman is disqualified from being elected to, or sitting in, the Australian Senate because she is a dual citizen of Afghanistan and Australia.

This video addresses the interpretation by the High Court of Australia, as the Court of Disputed Returns, of section 44(i) of the Constitution and its application to dual citizens when there is an 'irremediable impediment' to their renunciation of foreign citizenship. It discusses the Court's comments on this issue in Sykes v Cleary and Re Gallagher, and the lingering problem of whether delay or inaction can amount to an irremediable impediment. It notes the absence of facts about the law and practice concerning the renunciation of citizenship in Afghanistan, which makes any conclusion difficult to reach.

The video raises the further question of timing. If a Senator's nomination and election was valid because there was an irremediable impediment to renunciation at the time, but that impediment was later removed, during the Senator's term of office, would that cause a vacancy in the Senator's seat under section 45 of the Constitution?

Finally, the video addresses the ways such a question could reach the Court. As the 40 days for challenges after the return of the election writs has long since ended, the only way the issue would get before the Court of Disputed Returns is by a reference from the Senate, which seems unlikely in the circumstances.

[JohnPatersonAu]

October 2021 was only TWO MONTHS after the Taliban returned to power. The fact that the Afghani govt weren't returning the embassy's emails or whatever at the time does NOT constitute an irremediable impediment. Her "legal advice" was wrong. She should have been disqualified from nominating.
Also, Afghans CAN renounce their citizenship. She's had three years to do so. She chose not to. She should not be sitting as a senator. She is 100% in breach of section 44.

[harvestmarie]

I find this citizenship situation concerning!!!

As an Australian I also feel if you are voted in as a candidate of a particular party you should NOT be able to leave that party and continue on as an independent, that’s not what the citizens voted for and this is exactly what both Thorpe and Payman have done.

I also find both Thorpe and Paymans conduct unprofessional and unacceptable as Australian Senators.

[philliplipple]

Time for an amendment of Section 44. Only citizens born in Australia should be eligible to stand for Parliament..

[V__Landcruiser]

She should be held to the same standard as every other senator who stood down in 2017. Informal agreements do not, and should not, stand up against the constitution.

[linggazzard]

Fantastic clarification. Pauline Hanson should have a case. Payman has an eligibilty question over her senatorship. Payman is using the racist card not Pauline.

[jmcham]

Senator Payman has stated that she was told by the Afghanistan embassy in Australia that they do not have contact with the Taliban government in Afghanistan so they could not proccess her application. If this is the case is this embassy actually a functioning entity of any government.

[robertperry]

I've been listening to this series and I'm not even Australian! Every country should have someone like this to explain their gov't in such unbiased no nonsense calm rational language.

[tonysnow]

Professor Twomey - Thank you so much for the explanation.
You have made the situation very clear.
Very much appreciated. Best wishes.

[darkstars-torpedoes-of-truth]

In other words, nothing will be done.

[deniseorourke]

It’s mighty convenient that labour brings this up now prior to her resignation there was no mention of section 44

[paulrowell]

This gives us full explanation and Payman should go. I do believe that they should not be allowed to change from the party they were elected under

[kabdu]

Labor did this. It has their fingerprints all over it.

[barringtonwaites]

It is really odd, that Labor had no issue with Senator Payman's status, until the Senator split from the party. Very odd indeed that the information comes to light now. Labor needs to explain.

[justvisitingterra]

EXCELLENT EXPLANATION,
THANK YOU FOR TAKING THE TIME .

SATT.

[stevep]

All this proves is that party politics should be outlawed from the senate, they should be all independent, so as to keep the upper house doing their jobs properly. There should also be more then two parties that can be in office. What we have now, is not a democracy but a duopoly with much the same policies, none that help the country.

[margarethennessey]

Senator Payman. I think should get out of Fed Parliament completely
To me she’s causing a pain.

[susanc]

We had a rush of these cases a few years ago. One MP said he hadn’t even realised he was still an Italian citizen because his mother organised it when he was a child and never told him. I don’t know about Payman’s eligibility but it always irritates me when a person elected as a representative of one party leaves that party but think they’re entitled to keep their seat. It’s happened before that a person elected as a member of one party has left the party. I think that their seat should be declared vacant and an election held.

[stevewiles]

Remember the woman who found out she was Canadian, but came here as an infant? she was denied the right to run.

[YeahNahMaybe]

IMO If someone is voted into the senate on a LNP Greens or Labor (whatever) ticket & they resign from that party or are booted out they shouldn't be allowed to serve out the rest of their time on the cross bench as an independent. The seat should be returned to the party in this case. You can't change my mind on that.

[padstowphantom]

What a mess.
Thank you for your explanation, it has helped to clarify the situation.
It does annoy me that this situation keeps arising, and it is infuriating that senators can 'quit' the party and sit on the cross bench. They should leave the senate permanently.