Labor has questioned the eligibility of the Liberal candidate in the Victorian seat of McEwen to sit in parliament, warning that he may be a dual US citizen.
Phillip Fusco claims he does not hold US citizenship – despite his father being born in America – because his birth in Australia was not registered with the US government. US government advice to Fusco states that a consular report of birth abroad is “evidence of US citizenship” which establishes a claim.
But registration is not a requirement that appears in the relevant US law and the full name of the document – the consular report of birth abroad of a citizen of the US – suggests it may be merely evidence of the pre-existing legal fact of US citizenship rather than an application to become a citizen.
The University of Sydney constitutional law professor Helen Irving told Guardian Australia the high court “has not identified a general rule, at the fact-finding stage, on whether registration is a pre-condition for confirming citizenship or conferring it”.
“One cannot predict how it would rule on US citizenship, since it has not had a US case before it yet.”
In the 45th parliament 14 MPs or senators resigned or were ruled ineligible owing to dual citizenship. After ruling out a referendum to fix section 44 the Coalition introduced new Australian Electoral Commission checklists to improve transparency, which have fuelled tit-for-tat threats of referrals by both major parties.
Fusco is contesting the relatively safe Labor seat of McEwen, the rural seat to Melbourne’s north, held by Rob Mitchell on a 7.9% two-party-preferred margin.
Fusco told the AEC he had never been a citizen of another country and attached what he said was “official confirmation from the US government that I am not a US citizen”.
He attached a document from the US consulate in Melbourne dated 16 November 2017 which confirms there is no record of his father, John Anthony Fusco, completing a consular report of birth abroad for his children, including Phillip Paul Fusco.
The document notes that “children born abroad to US citizen parent(s) may have a claim to US citizenship”: “This claim is established by the US citizen parent(s) completing a consular report of birth abroad.”
A Liberal spokesman said Fusco had “received confirmation from the United States government that he has no claim to American citizenship”.
The relevant section of the US Immigration and Nationality Act states that a person “shall be” a US citizen if they are born outside the US to a parent who is a citizen of the US and meets a residency requirement.
For people born between 24 December 1952 and 13 November 1986, the requirement is that the US parent must have been physically present in the US for 10 years before the person’s birth, at least five of which were after the age of 14.
Fusco’s father was born in the US on 16 November 1939. The National Archives record for his entry to Australia states that John Anthony Fusco arrived in Sydney on 21 March 1961, aged 21.
The shadow attorney general, Mark Dreyfus, said Fusco had “serious questions to answer about his eligibility”. “His father was an American citizen who apparently lived in the USA until he was 21,” he said.
“According to the US embassy website this would make Philip Fusco a US citizen. The Liberal party’s campaign in Victoria is in complete disarray.”
The University of New South Wales constitutional law professor George Williams said a person “need not have taken any active step to register or otherwise acknowledge their foreign citizenship” to be disqualified.
“The key question is whether the person is recognised as a citizen by foreign law,” he said. “If they are, irrespective of any notification or registration, then section 44 can be invoked.
“If, on the other hand, they are not regarded by the foreign nation as a citizen unless notification or registration has occurred, then section 44 would not be engaged because the person would not yet be recognised as a foreign citizen.”