Is Senator Payman disqualified? Section 44 redux

Questions have been raised by journalists about whether Senator Payman is disqualified from being elected to, or sitting in, the Australian Senate because she is a dual citizen of Afghanistan and Australia.

This video addresses the interpretation by the High Court of Australia, as the Court of Disputed Returns, of section 44(i) of the Constitution and its application to dual citizens when there is an 'irremediable impediment' to their renunciation of foreign citizenship. It discusses the Court's comments on this issue in Sykes v Cleary and Re Gallagher, and the lingering problem of whether delay or inaction can amount to an irremediable impediment. It notes the absence of facts about the law and practice concerning the renunciation of citizenship in Afghanistan, which makes any conclusion difficult to reach.

The video raises the further question of timing. If a Senator's nomination and election was valid because there was an irremediable impediment to renunciation at the time, but that impediment was later removed, during the Senator's term of office, would that cause a vacancy in the Senator's seat under section 45 of the Constitution?

Finally, the video addresses the ways such a question could reach the Court. As the 40 days for challenges after the return of the election writs has long since ended, the only way the issue would get before the Court of Disputed Returns is by a reference from the Senate, which seems unlikely in the circumstances.