Resigned Greens senator Larissa Waters is doubtful the Commonwealth’s lawyers will convince the High Court that she and four other federal politicians should be allowed to remain in parliament.
The former Greens senator said the government was only arguing on her behalf to help save the jobs of Nationals members Barnaby Joyce, Fiona Nash and Matt Canavan.
“I think the government’s acting in pretty clear self-interest in trying to save their own, and a couple of extras,” Ms Waters told SBS World News.
She said she would “pop the champagne” if the court found she should return to the parliament, but said she doubted that would happen.
“The government’s really trying to argue against everybody’s common understanding of the constitution, and I think they’ve probably got Buckley’s chance of succeeding,” she said.
“And of course they’re only arguing that because they want to save their own. They’re not doing it out of the generosity of spirit to me, or to senator [Nick] Xenophon.”
Ms Waters is among seven politicians caught up in the dual citizenship saga, and is one of just two who has resigned over the matter.
The High Court will consider the seven cases in a hearing that begins in Canberra on October 10.
The Commonwealth legal team will argue only two of the seven should be found ineligible to hold office: One Nation senator Malcolm Roberts and former Greens senator Scott Ludlam, who has already resigned.
The other five – Larissa Waters, the three Nationals, and crossbencher Nick Xenophon – should be excused because they did not know they were dual citizens, according to the government’s submission to the High Court.
Attorney-General George Brandis tabled the 35-page submission to the court on Tuesday, setting out the details of the government’s legal argument.
The government’s lawyer, Solicitor General Stephen Donaghue QC, will argue Section 44(i) should only strike down those who have “voluntarily obtained, or retained” a foreign citizenship.
“Where a person has no knowledge that they are, or ever were, a foreign citizen, the requirement to take ‘all reasonable steps’ to renounce that foreign citizenship does not require the person to take any steps,” the submission reads. “Taking no steps is reasonable in these circumstances.”
The government argues Larissa Waters, Barnaby Joyce, Matt Canavan, Fiona Nash and Nick Xenophon did not know they ever possessed foreign citizenship, and instead had it “conferred” on them by foreign laws they did not know about.
Larissa Waters and Scott Ludlam were both born overseas, in Canada and New Zealand respectively.
But Mr Donaghue has argued Mr Ludlam knew he was a dual citizen and should have taken steps, while Ms Waters “was not aware that she was or had even been a Canadian citizen”.
Ms Waters stepped down in July after Mr Ludlam’s resignation prompted her to investigate her own citizenship status.
She left Canada as an 11-month-old baby and never returned. She said she assumed her citizenship expired long ago.
Ms Waters said she wants to return to the senate eventually.
“I’ve renounced my Canadian citizenship and I’m really excited and looking forward very much to the prospect of returning to my old job as the senator for Queensland,” she said.
If the High Court accepts the government’s argument, it is possible she could return immediately. If her election was not in breach of the constitution, the High Court may not need to order a recount, and the Greens could nominate Ms Waters to replace herself.