First – a rule that applies to the application of s44:
The majority in Sykes disagreed. They said that ‘incapable of being chosen’ takes the relevant time back to when you nominate.
So when candidate x nominates they cannot be a dual citizen. So step up Bill Shorten:
Mr Shorten’s office was forced to clarify that he sent his Form RN (the application to renounce British citizenship) and paid the relevant fee to the UK Home Office in May 2006. A spokesman said it was approved by the British government in June 2006, the same month he ceased being a British citizen.
Sounds okay – after all, the election was in November 2007. But … from the TURC testimony (emphasis added and speakers names added):
Mr Stoljar: And going over to the next page, paragraph A, “What commencement date applies to this part?” It says “28 February 2006“. Is that your handwriting?
Mr Shorten: No.
Mr Stoljar: Whose handwriting is it?
Mr Shorten: I don’t know, but it could well have been Mr Wilson’s. I don’t know. Actually, I’d be guessing. I don’t know.
Mr Stoljar: Was that the date on which you obtained preselection?
Mr Shorten: Yes. Yes.
It would appear that Bill Shorten was a dual citizen at the time he sought and gained preselection.
Now the Turnbull government has been far too nice about this – if they suspect that members of the opposition are in breach of s44 they should simply refer them to the High Court and be done. Certainly I think Bill Shorten has some explaining to do.