Payman citizenship case ‘unprecedented’

Rogue senator Fatima Payman’s inability to renounce her Afghan citizenship is “unprecedented” and leaves uncertainty about her eligibility to serve, constitutional experts warn, as Anthony Albanese went on the attack over his former colleague’s refusal to resign and give her Senate spot back to Labor.

The ongoing questions around Senator Payman’s dual citizenship came as the Prime Minister and Peter Dutton both railed against the possibility of religious-based political parties being established ahead of the next election, which Mr Albanese said could “undermine social cohesion”.

Senator Payman, who on Thursday announced she would resign from the Labor Party over differences on Palestine and sit as an independent, declared people should “watch this space” when it came to whether she would set up a political party to contest ALP-held seats with large Muslim populations.

The Western Australian senator confirmed she had met with The Muslim Vote, a teal-style movement looking to amalgamate Muslim votes and back select independents at the next election, but was not officially affiliated with the group.

As well as hitting back over the possibility of Australia going “down the road of faith-based political parties”, Mr Albanese made a veiled swipe at Senator Payman’s decision not to quit parliament and instead sit on the crossbench.

“Fatima Payman, she’s made a decision. Fatima Payman received around about 1600 votes in the WA election. The ALP box above the line received 511,000 votes,” he said.

“It’s very clear that Fatima Payman is in the Senate because people in WA wanted to elect a Labor government and that’s why they put a number one in the box above the line, next to Australian Labor Party, rather than voted below the line for any individual.”

Finance Minister Katy Gallagher said if she had been in Senator Payman’s position, her conscience would lead her to “leave the parliament”.

Questions over whether Senator Payman would remain an independent or establish her own party followed senior government figures raising her Afghan citizenship as a risk to her remaining in the Senate because of the potential breach to section 44.

Constitutional expert Anne Twomey said while the chance of the matter ending up in court before Senator Payman next faced the polls was “very low”, there was “no precedent” for her case.

“The problem is that we don’t actually really know what the answer is, because the High Court’s never had this case actually come before it in practical terms. So there’s no actual precedent on it,” she told The Weekend Australian.

“She probably has a good claim to say that she’s not disqualified, but no one could say that with absolute certainty.”

Before entering parliament in 2022, Senator Payman wrote in her register of qualifications statement that she had taken reasonable steps to renounce her Afghan citizenship but was unsuccessful because of the Taliban. “In light of the situation in ­Afghanistan and the impossibility of progressing my application to renounce Afghan citizenship following the recent takeover by the Taliban, I am not disqualified … so I can nominate as a candidate,” she wrote.

Professor Twomey said it would be unlikely for anyone in parliament to refer the senator, because the major parties had agreed after the section 44 crisis in 2017 that unless someone had outright lied about their citizenship, no referral would be made.

Instead, she said, it was more likely for a member of the public to raise the issue, which they are entitled to do within 40 days of a writ being issued, meaning Senator Payman would not be challenged again on the matter until she faced re-election in four years.

Mr Albanese, Senator Gallagher and other Labor frontbenchers said on Friday they were not aware of the issues being raised by some members of the party over whether Senator Payman was in breach of section 44.

Constitutional law expert Greg Cravensaid the “critical question” would be what specific steps Senator Payman had taken to renounce her citizenship.

“It wouldn’t be enough to say … ‘I didn’t think they would do it so I didn’t try’,” he said. “The critical question (is) did she take reasonable steps.”

The Weekend Australian understands the Labor Party sought legal advice after Senator Payman was preselected for what was considered an unwinnable spot on the Senate ticket, but that she would not have access to this as an independent.

Despite Senator Payman hitting back at Mr Albanese’s suggestion she had been planning her break from the party for some time, he doubled down on Friday. “I heard a month ago where this was going to go,” he said.

He would not be drawn on whether Senator Payman had questions to answer after the group that organised the pro-Palestinian protest on Parliament House roof revealed its “colleagues” had met with the WA senator a week before its action.

But opposition home affairs spokesman James Paterson said Senator Payman needed to “be upfront” about such meetings.