ACT Labor senator Katy Gallagher has wrongly argued that the actions of foreign officials as she tried to renounce her UK citizenship shouldn't stop her from sitting in Parliament, the Coalition government has told the High Court.
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Senator Gallagher has argued she took all reasonable steps to renounce her British citizenship before the 2016 election.
The Attorney-General in a submission on Friday launched an attack on her arguments this week to the court, saying in reply that she had ignored section 44 of the constitution, which has seen several parliamentarians found ineligible to sit and caused havoc for both major and crossbench parties last year.
In the last submission to the court before a hearing on Wednesday, the government said Senator Gallagher had treated findings that helped keep Queensland Liberal National Party senator Matt Canavan in parliament last year as the rule rather than the exception.
Her arguments would allow candidates to nominate even when still a foreign citizen, and remain one on polling day, it said.
Senator Gallagher had also challenged the ruling in Senator Canavan's case by arguing that - to the extent citizenship status under foreign law depended on the actions of foreign officials - those actions must be disregarded, the government said.
"On that approach, the operation of section 44 would no longer depend on a person's status under foreign law, because that status will commonly depend on action by foreign officials (as it does in this case)," the government said.
The fact that foreign officials must act for a candidate to renounce their dual citizenship did not stop them from doing so "irremediably", the Attorney-General said.
"There is no basis to depart from the ordinary meaning of section 44, which requires candidates to divest themselves of foreign citizenship in a way that is effective under foreign law (whether or not that requires action by foreign officials) before they can be chosen."
Arguments from Senator Gallagher about the risk of foreign bureaucratic delay turning section 44 into "an instrument of punishment or oppression", and saying that the Attorney-General's approach would create "uncertainty, chaos and discriminatory outcomes", were extreme examples irrelevant to the case, the government said.
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 UK dual citizenship a year earlier, and during her previous term as senator starting 2015.
Documents provided to the Senate in December showed she 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 UK officials.
Senator Gallagher, the ACT's former chief minister, told the Senate that month she would stand aside from her responsibilities on Labor's frontbench until her case was resolved by the High Court, sitting as the Court of Disputed Returns.
Legal advice 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, and that she meets the standard set by the High Court in recent section 44 cases.
The High Court will hold its next hearing on the case in Canberra.
