An independent candidate for South Australia's only marginal seat in the federal election says she will abandon her campaign if she finds a bid to renounce her British citizenship has not gone through.
Former Adelaide Writers' Week director Jo Dyer — a so-called "teal independent" — realised yesterday she might be a dual British-Australian citizen.
If she is, this would make her ineligible to take up the seat of Boothby, should she win it from the Liberal Party.
The high-profile candidate has been waiting for the British Home Office to rescind her UK citizenship.
Ms Dyer applied for that in December and it is a prerequisite to be a candidate for a federal election.
She told ABC Radio Adelaide this morning it would be unfair to her volunteers and wasting money on printing how-to-vote cards if no-one at the "labyrinthine" British Home Office could confirm her application had gone through.
"We need to get clarity on this sooner rather than later and we can’t, in good conscience, I don't think, go forward if we haven't received that clarification in a positive and happy way in the next 72 hours, being brutally realistic about the situation," she said.
Ms Dyer said she had assumed the four months from her application to her nomination on April 14 would have been enough time.
"These applications have previously been processed within two months for other candidates, so I assumed it had been finalised but am seeking confirmation of this from the Brits," she said.
"I had thought that having taken all reasonable steps to renounce my citizenship was sufficient but, having now sought advice on Katy Gallagher's case, accept that's inaccurate."
Ms Gallagher — an ACT senator — lost her seat after the High Court ruled in 2018 that she did not renounce her British citizenship in time for the 2016 election.
She was then elected to the Senate at the 2019 federal election.
Ms Dyer was born in Melbourne to British parents.
University of Adelaide law professor John Williams said the High Court had made its opinion clear.
"The critical moment — and this is what the High Court has been quite clear [about] — is the election process starts at the point of nomination right through to the completion of it," he said.
"So one has to hold a single citizenship — an Australian citizenship — at the point of nomination.
"So there’s factual question here: Whether or not that citizenship of any candidate has been relinquished and determined to be so before or on the date of nomination."
Boothby — in Adelaide's inner south and south-west — has been represented by Liberal Nicolle Flint since 2016.
She held it with a 1.4 per cent margin in 2019 but announced last year she was retiring.
Liberal medical researcher Rachel Swift is hoping to replace her, while former St Vincent de Paul Society chief executive Louise Miller-Frost is standing for Labor.
In a statement, Dr Swift hypothesised that if Ms Dyer were revealed as a dual citizen, but secured enough votes to win the seat on May 21, there would be a by-election in Boothby.
"It is reasonable for voters in Boothby to expect all candidates have done their homework and checked that they are legally eligible to nominate and are not potentially in breach of constitutional law," she said.
"Clearly this hasn't happened and it's a disrespectful way to treat the people of Boothby."
Ms Dyer was friends with the woman who accused former attorney-general Christian Porter of raping her, an allegation he strenuously denies.
'Minimal impact' likely, Green says
Ms Dyer's predicament follows the 2017-18 parliamentary eligibility crisis, during which it was revealed more than a dozen federal MPs held dual citizenship.
Section 44 of the constitution stipulates that someone cannot be a dual national and sit in parliament.
Constitutional law expert Anne Twomey expressed surprise that, given the prominence accorded to the issue five years ago, candidates were still finding themselves in difficulty.
"You would have thought after the last highly publicised kerfuffles about it, people would be a bit more careful about it," Professor Twomey said.
But she added that negotiating foreign citizenship law was "often really difficult", and said she supported the matter being revisited.
"The real problem with it is that the way the High Court's interpreted the constitution is that in the end it relies on foreign law — so, it's not a matter for an Australian law about whether or not you're a citizen of a foreign country, it relies on what foreign law says," she said.
"We have no control over foreign law, the foreign law may be obscure or difficult to interpret.
"It may well be that foreign law gets changed with retrospective effect, so that you rightly believed you were not a citizen and then, later on, another country changes its laws … and suddenly you are a citizen."
ABC election expert Antony Green said that if Ms Dyer were confirmed as a dual citizen, and therefore ineligible, the flow-on effects would be negligible.
"If Jo Dyer pulls out of the contest at this stage, she should have minimal impact if she stops campaigning," he said.
"The High Court has made clear it will only void an election because of a disqualified candidate if that candidate is elected — the presence of a disqualified candidate who doesn't win doesn't void the result."
