Senior Labor figures reportedly hold concerns over rebel senator Fatima Payman’s citizenship status

Labor ministers are reportedly questioning whether Fatima Payman’s Afghan citizenship could challenge her ability to remain in the senate because of a possible breach of the Constitution.

The fears come after Senator Payman quit the ALP and joined the crossbench as an independent senator on Thursday, after crossing the floor on a vote in recognition of Palestinian statehood.

Section 44 of the Constitution, which states “foreign citizens and dual citizens cannot sit in parliament,” could pose a risk to Senator Payman, who is an Australian and Afghan citizen.

Senator Payman’s deflection to the crossbench leaves the Labor Party with fewer seats in the upper house than it had when the party was still in opposition at the start of 2022.

Senator Payman has refused to rule out establishing a new political party to contest Labor-held seats with large Muslim populations, with Labor ministers reportedly fearing an independent Muslim party will lose them up to six seats in western Sydney,

Ministers are reportedly already taking action to defend previously safe Labor seats.

In 2003, Senator Payman was granted entry to Australia under her mother’s refugee visa after she fled Taliban-held Afghanistan.

She was granted Australian citizenship in 2005.

In her 2022 register of qualifications statement, Senator Payman said she had sought and received legal advice which confirmed she took reasonable steps to renounce her Afghan citizenship, which made her eligible to sit in the Senate.

“In light of the situation in ­Afghanistan and the impossibility of progressing my application to renounce Afghan citizenship following the recent takeover by the Taliban, I am not disqualified from sitting as a senator and so I can nominate as a candidate,” she wrote.

Senator Payman said she went to the Afghanistan embassy in October 2021, where she was told her request for renunciation could not be completed.

“The embassy advised me that there is no communication ­between it and the new Taliban government in Afghanistan. As such, the embassy told me that my application for renunciation could not (be) finalised in Kabul (as required under pre-Taliban Afghan law),” she wrote.

“There is nothing further that can be done to progress my renunciation of Afghan citizenship, and it would be very dangerous for me to return to Afghanistan or to attempt to engage with the Taliban regime directly.”

Appearing on Nine’s Today, NDIS Minister Bill Shorten said he believed the West Australian branch of the Labor Party would have ensured Senator Payman matched the appropriate criteria prior to selecting her for the ballot.

However, sparring partner Peter Dutton said that if there was a breach, the Labor Party would ultimately be responsible.

“Labor Party knew about it. So they’ve supported a member of parliament knowing that she wasn’t constitutionally valid to sit in the parliament, which I think is an outrage,” he said

“It’s pretty red hot if there is a constitutional issue and the Labor Party knew about it.”

Mr Dutton said that would be “quite different than somebody who has a section 44 issue”, noting there is a “question to answer”.

During the 45th parliament, Katy Gallagher and seven other lower-house MPs were forced to make declarations of ineligibility as a result of their dual citizenships.

Labor sources said they believed Senator Payman’s eligibility would likely need to be tested in the High Court, according to The Australian.

Senator Payman’s resignation on Thursday came hours after Parliament House was targeted by pro-Palestine supporters, who staged a 90 minute protest on the building’s roof.

The four activists, three men and one woman, were charged with Commonwealth Trespass and fined $2750 after they climbed over a specially-built security barricade to access the roof.

The Australian revealed the activist group responsible for the demonstration, 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 to Fatima” as possible “show that her stance is appreciated”.