Labor senator Katy Gallagher says she took all reasonable steps to renounce her British citizenship before the 2016 election, even though the UK Home Office demanded extra documents after the election before confirming her renunciation.
In a submission to the High Court, Senator Gallagher's lawyers lay out a timeline arguing that because the British Home Office had debited a fee for renunciation on May 6 in 2016, before Senator Gallagher had nominated for election on May 30, she had taken the reasonable steps needed under section 44 of the constitution.
"By no later than 6 May 2016 (when her fee was debited), Senator Gallagher had taken every step which, as a matter of British law, was sufficient for her renunciation to be effective," the submission argued.
"As this date was prior to writs being issued or nominations closing, the constitutional imperative is engaged."
According to the submission, Senator Gallagher sent her renunciation declaration, with a certified copy of her birth certificate, to the British Home Affairs department on April 20, 2016, and it was received on April 26. The Home Office deducted a fee on May 6 of that year, before the election was announced on May 8, and the writs were issued on May 16.
Senator Gallagher nominated for election on May 31, ahead of the July 2 election. It wasn't until July 20 that the British Home Affairs department requested extra documentation, with the senator then sending originals of her father's birth certificate, her own birth certificate and her parents' marriage certificate. It wasn't until August 16, after she was declared duly elected on August 2, that Senator Gallagher's British citizenship actually ended.
Senator Gallagher is represented in the case by Justin Gleeson SC, former solicitor-general who also represented Tony Windsor in the dual-citizenship case against former deputy prime minister Barnaby Joyce.
Last week the Attorney-General argued in a submission to the High Court that Senator Gallagher had failed to take reasonable steps to renounce her citizenship, and that the reasonable steps test shouldn't apply in cases where renunciation is achievable.
The submission from Mr Gleeson rebuts the Attorney-General's submission, saying that distinctions shouldn't be made relying on the laws of other countries.
According to Mr Gleeson, Senator Gallagher's case is different to that of senators Malcolm Roberts or Fiona Nash who had not taken any steps to renounce their British citizenship before being elected.
"These parties invoked 'reasonable steps' to seek to excuse taking any steps, on the basis that they did not have sufficient knowledge that they needed to act. In contrast, Senator Gallagher is the first person this Court has had to rule upon who has in fact taken steps required under the foreign law to renounce her citizenship at the date of nomination."
Whether someone is eligible to nominate for parliament shouldn't depend on "the actions of foreign officials," the submission argued.
"Particularly those that rest on discretions, degrees of diligence or bureaucratic practices."
"It is important that the focus of the constitutional imperative is on a citizen being 'prevented by foreign law from participation' as distinct from a citizen being 'prevented by the actions, or inactions, of a foreign person from participation'."
The High Court will hold its next hearing on the case on March 14 in Canberra.