Only two of the politicians currently before the High Court over their eligibility to sit in parliament should have to go, according to a submission to the High Court published overnight from solicitor-general Stephen Donoghue, on behalf of attorney-general George Brandis.
Donoghue said it was unreasonable to expect people seeking election to parliament to renounce a foreign citizenship if it had been conferred on them by a foreign power through descent or by other means, and the person was unaware they held dual citizenship.
This means that the government is arguing that of the seven current and former members of parliament currently before the High Court, only two of those would potentially be in breach of Section 44 of the constitution, on the grounds that they didn't take all reasonable steps to renounce their citizenship of a foreign power.
Who stays and who goes?
Former Greens senator Scott Ludlam and One Nation senator Malcolm Roberts: sashay away.
The government argues that in Ludlam's case, because he was born in New Zealand and became a naturalised Australian citizen at 19, he should have at least been aware of the possibility that he might still have retained Kiwi citizenship, and should have taken steps to check when he nominated to run for the Senate.
For Roberts, evidence submitted to the court from Roberts himself showed he had been emailing what he thought was the British Consulate, but what was in fact a non-existent email address, asking if he was "still a British citizen" just before the election last year, and finally renounce his citizenship properly until December 2016.
When he was cross-examined in the High Court last week, Roberts maintained that he always believed he was only Australian and had arrived in Australia from India "stateless".
"In my case it was the conversations in our family and the way we treated each other, that I was only ever considered Australian and I only ever considered myself Australian, he told the court. "I was raised that way and that’s the way I believe." (Full transcript here).
When presented with documents obtained by BuzzFeed News showing that Roberts had signed a form stating he was British when he wanted to become an Australian citizen, Roberts blamed his sister for filling it out for him.
"I have no recollection of that, but since seeing the document from BuzzFeed, I think, I recall – I can see my signature and the rest of the material was filled in by my sister," he said.
When even Roberts' own barrister indicated that Roberts had been a British citizen, Roberts told counsel assisting the court, Stephen Lloyd, that he would wait and see.
Lloyd: Having heard everything including what you have heard in court this morning, do you now accept that you were a British citizen from – by descent from birth?
Roberts: I will await my – having a conversation with my barrister on that.
Lloyd: So, is that to say you don’t yet accept it, but you may come to accept it?
Roberts: I’ll have a conversation with my barrister on that.
Lloyd: Okay.
While Roberts remains yet to be convinced, the government has decided that he should have known at the time of the election that he was still British.
The government argued that deputy prime minister Barnaby Joyce, Nationals deputy leader Fiona Nash, Nationals senator Matt Canavan, independent senator Nick Xenophon, and former Greens senator Larissa Waters had no knowledge at the time they nominated that they ever possessed foreign citizenship.
In Canavan's case, the government is dropping his previous excuse about his mother applying for Italian citizenship on his behalf, instead arguing that citizenship had been conferred on him via his mother's Italian parents when Italian law changed in 1983.
In all of the other cases, bar Waters, the politicians had citizenship by descent, the government argued. Waters was born in Canada to Australian parents and returned to Australia when 11-months-old, so had no idea she was eligible for Canadian citizenship, the government argued.
In each case foreign citizenship was conferred on them by the operation of foreign law of which they were entirely unaware. For this reason, the government argues, they should be allowed to stay.
The High Court will hear the cases on October 10 and decide whether the five politicians that have yet to resign from parliament should remain there.
The government has said that if senators are found to be ineligible, then there should be a count back rather than another Senate election, as it would show the "true legal intent of the voters and not result in a distortion of voter intention" and "should be preferred to a fresh election, which would occasion significant costs and inconvenience".
In Waters' case, the government believes that she should have stayed in parliament, but because she resigned it would create a casual vacancy. It would then be up to the Greens to decide who replaces Waters, and Waters herself could even step up to fill her own vacancy and return to the Senate.
If Joyce is found to have been ineligible at the time of the election, the government has argued that there should be a by-election in his seat of New England. Joyce's former rival in the seat of New England, former independent MP Tony Windsor, is making a submission to the court on the matter.