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Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

2017. On 14 July 2017, Mr Ludlam wrote to the President of the Senate resigning his position as a senator for Western Australia.

90 Mr Ludlam does not dispute that his citizenship of New Zealand, although unknown to him, disqualified him from being chosen or sitting as a senator. The circumstances of his New Zealand citizenship can be briefly stated. Mr Ludlam was born in Palmerston North, New Zealand in January 1970. His parents left New Zealand in 1973. In October 1978 the family arrived in Perth, Western Australia. Mr Ludlam, his brother and his parents were naturalised as Australian citizens in April 1989. Mr Ludlam believed that upon his naturalisation as an Australian citizen he was exclusively an Australian citizen and that he held no other citizenship.

91 The evidence of New Zealand citizenship law is contained in the report of Mr David Goddard QC, of the New Zealand bar. In summary, at the date of Mr Ludlam's birth, the British Nationality and New Zealand Citizenship Act 1948 (NZ) ("the 1948 NZ Act") governed citizenship in New Zealand. Subject to exceptions to which it is unnecessary to refer, the 1948 NZ Act provided that every person born in New Zealand after its commencement shall be a citizen of New Zealand by birth. The 1948 NZ Act was repealed by the Citizenship Act 1977 (NZ) ("the 1977 NZ Act"), which remains in force today. Mr Ludlam's New Zealand citizenship under the 1948 NZ Act was preserved by the 1977 NZ Act. Under the 1977 NZ Act a New Zealand citizen may lose his or her citizenship by renouncing it or, in limited circumstances, by ministerial order. It is not in question that Mr Ludlam had not lost his New Zealand citizenship at the date he nominated for election to the Senate.

92 Mr Ludlam was incapable of being chosen or sitting as a senator under s 44(i) of the Constitution and so there is a vacancy in the representation of Western Australia in the Senate for the place for which Mr Ludlam was returned.

93 Ms Waters nominated with the Australian Electoral Commission for election as a senator for Queensland on 9 June 2016. At the time, Ms Waters believed that she was solely an Australian citizen. Ms Waters was returned on 5 August 2016 as an elected senator for Queensland at the general election for the Parliament held on 2 July 2016.