ACT Labor senator Katy Gallagher failed to take reasonable steps to renounce her British citizenship and is not protected by findings that kept Queensland Liberal National Party senator Matt Canavan in Parliament, the federal government has told the High Court.
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The Attorney-General has argued Senator Gallagher should vacate her seat and also told the court in a submission received on Monday that whether she took "reasonable steps" to renounce foreign citizenship was irrelevant.
"It is only where foreign law makes it impossible, or not reasonably possible, for a person to renounce foreign citizenship that reasonableness is relevant at all.
"Except in cases where renunciation is impossible or not reasonably possible, renunciation is always achievable.
"If achievable, it should be achieved. It is no answer to say: 'I tried'," the government told the court.
Senator Canavan was saved in a High Court decision largely due to the complexity of Italian citizenship laws.
His mother's registration as an Italian overseas voter in 2006, along with Senator Canavan himself, was not deemed to make him an Italian citizen. That required a "separate and more rigorous process", Italian lawyers advised in a report.
"Senator Canavan has not applied for a declaration of Italian citizenship," the court ultimately ruled. "On the evidence before the court, one cannot be satisfied that Senator Canavan was a citizen of Italy."
Legal advice to Senator Gallagher 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.
The government has told the High Court that a ruling on Senator Canavan's eligibility last year - finding the operation of foreign laws should not stop an Australian citizen participating in government - did not apply in Senator Gallagher's case.
"It is insufficient for a candidate merely to have taken steps to renounce their foreign citizenship: they must actually have divested themselves of their status as a foreign citizen in a way that is effective under foreign law before the commencement of the process," the submission, signed by Solicitor-General Stephen Donaghue, said.
"British law does not make it impossible, or not reasonably possible, for a person to renounce British citizenship.
"To the contrary, it provides a straightforward path to do so. It is therefore irrelevant whether or not Senator Gallagher took all steps reasonably required by foreign law to renounce her British citizenship before nomination.
"She was incapable of being chosen as a senator because, at the time of nomination, she was a citizen of a foreign power."
The government argued any candidate who was a UK citizen at the date of nomination was ineligible to be a Senator or member of the Parliament.
Senator Gallagher also failed to leave enough time for the British government to process her papers when renouncing her citizenship, the federal government told the High Court.
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.
She said legal advice to Labor found she was eligible to sit as a member of Parliament, while her party has said her eligibility was "beyond question" and constitutional law professor George Williams has said long bureaucratic processes by foreign governments were unlikely to lead to someone being disqualified.
The High Court will hold its next hearing on the case in Canberra on March 14.
