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MPs should not face ban ​if unaware of other citizenship, court hears Matt Canavan was never an Italian citizen, MPs eligibility hearing told
(about 4 hours later)
Parliamentarians should not be disqualified if they were unaware of their foreign citizenship because the constitution was designed only to bar people who actively obtained or retained foreign citizenship, the court of disputed returns has heard. Expert evidence suggests that Matthew Canavan was never an Italian citizen, merely eligible to become one, his lawyer has told the court hearing into the federal citizenship fiasco.
On the first day of hearings into the eligibility of seven parliamentarians the solicitor general, Stephen Donaghue, told the court that Barnaby Joyce, Matt Canavan, Fiona Nash, Nick Xenophon and Larissa Waters did not possess the knowledge required to have allegiance to a foreign power although they held dual citizenship under foreign laws. The bombshell argument, buried in one paragraph of the senator’s written submissions to the court of disputed returns in Canberra, became the focus of Tuesday afternoon’s hearing after his counsel used an expert report to contradict advice from the Italian consulate in Brisbane that he is registered as an Italian citizen.
On behalf of the Turnbull government, Donaghue submitted that the test for disqualification by section 44 is not dual citizenship alone but whether the person voluntarily obtained or retained foreign citizenship. That would require knowledge of their status as a foreign citizen or the real prospect that they may be. If accepted by the court the argument could see the former federal resources minister retain his Senate seat, even if the other six parliamentarians are ruled ineligible by a strict reading that all dual citizens are ineligible to sit in parliament.
In an overview of each of the cases, Donaghue said Canavan acquired Italian citizenship due to a “quirk of history”, that the Italian constitutional court decided in 1983 that Italian citizenship could be acquired by descent from one’s mother after he was born an Australian only in 1980. Earlier, the solicitor general Stephen Donaghue advanced the Turnbull government’s argument that the test for disqualification by section 44 is not dual citizenship alone but whether the person voluntarily obtained or retained foreign citizenship. That would require knowledge of their status as a foreign citizen or the real prospect that they may be.
Donaghue said Waters, who was born in Canada to Australian parents but left when she was 11 months old, believed she was entitled to apply to become a Canadian citizen but “consciously decided not to become the citizen of a country she was [in fact already] a citizen of”. Donaghue told the court that Canavan, Barnaby Joyce, Fiona Nash, Nick Xenophon and Larissa Waters did not possess the knowledge required to have allegiance to a foreign power although they held dual citizenship under foreign laws.
In the morning, Donaghue said Canavan appeared to have acquired Italian citizenship due to a “quirk of history” after the Italian constitutional court decided in 1983 that citizenship could be acquired by descent from one’s mother. Canavan was born in Queensland to an Italian mother in 1980.
In the afternoon Canavan’s counsel, David Bennett, read extensively from the expert opinion of Maurizio Delfino and Professor Beniamino Caravita di Torrito that Italian lawyers were divided on whether that decision conferred Italian citizenship automatically on those born before the decision.
“The better view is that it’s a conditional citizenship that doesn’t arise automatically,” Bennett said, suggesting a person would then need to elect to become a citizen.
When the chief justice, Susan Kiefel, noted no application to cross-examine the experts had been made, Bennett replied that the only expert evidence before the court is that the better view of Italian law is that Canavan was never an Italian.
Although Canavan’s mother registered herself and Canavan as Italian citizens resident overseas, Bennett said that was not an election to become citizens and could not make Canavan a citizen without a declaration from him.
Although the Brisbane consulate said Canavan was registered as an Italian abroad, Bennett said it appeared that advice was based on a Canavan’s mother’s registration which the expert evidence said was “irrelevant” to his citizenship.
Submissions from the amicus curiae intervening in Canavan’s case submitted that he was an Italian citizen on the date of his nomination (13 May 2016), but did not refer to independent expert evidence.
“Senator Canavan’s Italian citizenship has been discoverable for over 30 years,” the submissions said. “To complain about the retroactive operation of the law is far too delicate a submission in those circumstances.”
Earlier, Donaghue said that Waters, who was born in Canada to Australian parents but left when she was 11 months old, believed she was entitled to apply to become a Canadian citizen but “consciously decided not to become the citizen of a country she was [in fact already] a citizen of”.
Donaghue said Joyce, whose father was a New Zealand citizen before renouncing it when Joyce was aged 10, was “not aware of the possibility he might be a New Zealand citizen under New Zealand law”.Donaghue said Joyce, whose father was a New Zealand citizen before renouncing it when Joyce was aged 10, was “not aware of the possibility he might be a New Zealand citizen under New Zealand law”.
The solicitor general said Xenophon had been a dual Australian and British overseas citizen by descent because his father left Cyprus before it gained independence, which was “hardly obvious” because it required understanding of the “political situation” in Cyprus at the time.The solicitor general said Xenophon had been a dual Australian and British overseas citizen by descent because his father left Cyprus before it gained independence, which was “hardly obvious” because it required understanding of the “political situation” in Cyprus at the time.
Section 44 of the commonwealth constitution states that people are incapable of being chosen as a Senator or MP if they are the subject or citizen of a foreign power. Section 44 of the commonwealth constitution states that people are incapable of being chosen as a senator or MP if they are the subject or citizen of a foreign power.
Under the commonwealth’s test, parliamentarians would be eligible if they were unaware of their dual citizenship so long as they renounce it within a reasonable time when they became aware of it.Under the commonwealth’s test, parliamentarians would be eligible if they were unaware of their dual citizenship so long as they renounce it within a reasonable time when they became aware of it.
A key issue explored in questioning was whether the precedent case of Sykes v Cleary established that citizenship by descent is a disqualification even if the parliamentarian did not believe they were a citizen of the foreign power. A key issue explored in the morning’s hearing was whether the precedent case of Sykes v Cleary established that citizenship by descent is a disqualification even if the parliamentarian did not believe they were a citizen of the foreign power.
Donaghue submitted the commonwealth was not asking the court to overturn the majority decision in Sykes v Cleary, which he said dealt with dual citizenship of people born overseas who were later naturalised to become Australians.Donaghue submitted the commonwealth was not asking the court to overturn the majority decision in Sykes v Cleary, which he said dealt with dual citizenship of people born overseas who were later naturalised to become Australians.
He said the case had not resolved the question of how to treat natural-born Australian citizens who were also unwittingly dual citizens despite being born in Australia.He said the case had not resolved the question of how to treat natural-born Australian citizens who were also unwittingly dual citizens despite being born in Australia.
The solicitor general argued that since the plurality in Sykes v Cleary accepted a person can remain in parliament if the foreign power refuses to allow them to renounce citizenship, the text of section 44 “cannot be read literally” that all foreign citizens are ineligible, a submission justice Michelle Gordon appeared to accept in later questioning.The solicitor general argued that since the plurality in Sykes v Cleary accepted a person can remain in parliament if the foreign power refuses to allow them to renounce citizenship, the text of section 44 “cannot be read literally” that all foreign citizens are ineligible, a submission justice Michelle Gordon appeared to accept in later questioning.
Various readings of the case were offered from the bench, including that it had been wrongly decided and that it had dealt with foreign citizenship only for the purpose of determining whether to fill a vacancy with a byelection.Various readings of the case were offered from the bench, including that it had been wrongly decided and that it had dealt with foreign citizenship only for the purpose of determining whether to fill a vacancy with a byelection.
Chief justice Susan Kiefel said it appeared to be predominantly concerned with cases of foreign powers “overreaching” by claiming people are citizens despite efforts to renounce.
Donaghue traced the antecedents of section 44 in colonial laws to suggest they were all directed at people who “made an oath, declaration or acknowledgement” – that is, took positive steps – to make themselves citizens of a foreign power.
Under questioning from justices Stephen Gageler and Geoffrey Nettle, Donaghue conceded section 44 did extend the disqualification so citizenship by descent could be a bar to eligibility but he submitted historical material “still informs” the purpose of the disqualification has always been about voluntary conduct.
Donaghue said that knowledge must be a requirement or else “gaps in a person’s family history could potentially be critical” to their eligibility to sit in parliament.
The commonwealth has submitted Ludlam and Roberts should be found ineligible because they did possess the requisite subjective knowledge of the possibility they were foreign citizens.The commonwealth has submitted Ludlam and Roberts should be found ineligible because they did possess the requisite subjective knowledge of the possibility they were foreign citizens.
The hearing continues. Counsel for Joyce and Nash, Brett Walker, agreed with the commonwealth that the purpose of section 44 was to bar people with a split allegiance but there was “no mischief” to prevent when people were unaware of their foreign citizenship.
Walker said the risk of a split allegiance was that a parliamentarian would “hear the call” of a foreign power and argued “one can’t heed a call one can’t hear”.
He said the fact inquiries to foreign legal experts and genealogists could have established their foreign citizenship was “no reason” to treat them as having a split allegiance.
The hearing will continue on Wednesday.