Labor ministers are reportedly wondering whether Fatima Payman’s Afghan citizenship could jeopardize her ability to remain in the Senate because of a potential violation of the Constitution.
The fears are raised after Senator Payman left the ALP and joined the independent group as a senator on Thursday, after voting to recognise Palestinian statehood.
Article 44 of the constitution, which states that “foreign nationals and dual nationals cannot sit in Parliament”, could pose a risk to Senator Payman, who is an Australian and Afghan citizen.
Senator Payman has refused to rule out creating a new political party to contest Labor-held seats with large Muslim populations, with Labor ministers reportedly fearing an independent Muslim party could cost them up to six seats in western Sydney.
Ministers are reportedly already taking steps to defend Labour seats that were previously secured.
Senator Payman’s switch to the independent backbench leaves Labor with fewer seats in the upper house than it had when the party was still in opposition at the start of 2022.
In 2003, Senator Payman was allowed to enter Australia on her mother’s refugee visa after she fled Taliban-controlled Afghanistan.
He was granted Australian citizenship in 2005.
Senator Fatima resigned from the ALP on Thursday following concerns over the party’s stance on Palestine. Photo: NewsWire / Martin Ollman
Senator Fatima Payman wore a pin combining the Aboriginal and Palestinian flags as she announced her resignation on Thursday. Photo: NewsWire/ Martin Ollman
In her 2022 registration statement, Senator Payman said she had sought and received legal advice that confirmed she took reasonable steps to renounce her Afghan citizenship, making her eligible to sit in the Senate.
“In light of the situation in Afghanistan and the inability to move forward with my application to renounce my Afghan citizenship following the recent Taliban takeover, I am not disqualified from being a senator and therefore may nominate myself as a candidate,” she wrote.
Senator Payman said she went to the Afghan embassy in October 2021, where she was told her resignation request could not be completed.
“The embassy informed me that there is no communication between it and the new Taliban government in Afghanistan. Therefore, it told me that my resignation request could not be finalised in Kabul (as required by pre-Taliban Afghan law),” he wrote.
Senator Fatima Payman held a press conference at Parliament House in Canberra to announce her resignation. Photo: NewsWire / Martin Ollman
“There is nothing further that can be done to advance my renunciation of Afghan citizenship, and it would be very dangerous for me to return to Afghanistan or attempt to engage directly with the Taliban regime.”
Appearing on Nine’s Today show, NDIS Minister Bill Shorten said he believed the Western Australian branch of the Labor Party would have ensured Senator Payman met the appropriate criteria before selecting her for the ballot.
However, his debate partner Peter Dutton said if there was a breach, Labor would ultimately be responsible.
“The Labour Party knew this. That’s why they supported an MP knowing that she had no right to sit in Parliament, which I consider a scandal,” he said.
“That’s very different to someone who has a problem with Section 44. So that’s the question that needs to be answered.”
During the 45th Congress, Katy Gallagher and seven other House members were forced to make declarations of ineligibility as a result of their dual citizenship.
Labor sources said they believed Senator Payman’s eligibility would likely have to be tested in the High Court, The Australian reported.
Pro-Palestinian protesters scaled the roof of Parliament in a show of support for Palestine. Photo: NewsWire/ Martin Ollman
Senator Payman’s resignation on Thursday came hours after parliament was attacked by pro-Palestine supporters, who staged a 90-minute protest on the roof of the building.
The four activists, three men and one woman, were charged with unlawful trespassing on the Commonwealth and fined $2,750 after they scaled a specially built security barricade to access the roof.
The Australian revealed that the activist group behind the protest, Renegade Activists, met with Senator Payman more than a week ago.
A spokesman for the group, Jacob Grech, told The Australian the group wanted to “give as much support as possible to Fatima” to “show that her stance is appreciated”.