This article is from the source 'guardian' and was first published or seen on . It last changed over 40 days ago and won't be checked again for changes.
You can find the current article at its original source at https://www.theguardian.com/australia-news/2017/oct/12/matt-canavan-may-have-been-italian-citizen-experts-report-says
The article has changed 8 times. There is an RSS feed of changes available.
| Version 0 | Version 1 |
|---|---|
| Matt Canavan may have been Italian citizen, experts' report says | Matt Canavan may have been Italian citizen, experts' report says |
| (35 minutes later) | |
| The expert report relied on by senator Matt Canavan suggests he may have been an Italian citizen, despite his counsel telling the high court it concluded the “better view” was that he is not. | The expert report relied on by senator Matt Canavan suggests he may have been an Italian citizen, despite his counsel telling the high court it concluded the “better view” was that he is not. |
| Addressing the high court, sitting as the court of disputed returns on Tuesday, Canavan’s counsel, David Bennett, summarised the report of two Italian citizenship law experts by saying its ultimate conclusion was that Canavan may have needed to take an action to activate his citizenship and he did not become a citizen automatically. | Addressing the high court, sitting as the court of disputed returns on Tuesday, Canavan’s counsel, David Bennett, summarised the report of two Italian citizenship law experts by saying its ultimate conclusion was that Canavan may have needed to take an action to activate his citizenship and he did not become a citizen automatically. |
| However, the entire 30-page report tendered to the court, and obtained by Guardian Australia, reveals Mauirizio Delfino and Prof Benjamino Caravita di Torrito were not so cut and dried. | |
| While it did lay out the argument presented by Bennett in court, it also states that Canavan “acquired the Italian citizenship automatically iure sanguinis (through ancestry)” because of a 1983 Italian constitutional court decision, which meant that citizenship is also passed down the maternal line. | While it did lay out the argument presented by Bennett in court, it also states that Canavan “acquired the Italian citizenship automatically iure sanguinis (through ancestry)” because of a 1983 Italian constitutional court decision, which meant that citizenship is also passed down the maternal line. |
| “Both senator Canavan and his mother did not become Italian citizens at the time for their birth but became Italian citizens by the date of their birth as a result of the retroactive effect of the (1983) decision,” Delfino reported. “Since under Italian law Italian citizenship is automatically acquired by birth, the relevant administration decision has a mere declaratory effect. | “Both senator Canavan and his mother did not become Italian citizens at the time for their birth but became Italian citizens by the date of their birth as a result of the retroactive effect of the (1983) decision,” Delfino reported. “Since under Italian law Italian citizenship is automatically acquired by birth, the relevant administration decision has a mere declaratory effect. |
| “This means that the administrative decision declares that the citizenship already exists and does not create the citizenship right.” | “This means that the administrative decision declares that the citizenship already exists and does not create the citizenship right.” |
| Despite the advice appearing to conclude at several points that the effect of the 1983 Italian constitutional court’s decision was that Canavan and his mother automatically (and retroactively) gained Italian citizenship, Canavan’s lawyers disputed this in court. | Despite the advice appearing to conclude at several points that the effect of the 1983 Italian constitutional court’s decision was that Canavan and his mother automatically (and retroactively) gained Italian citizenship, Canavan’s lawyers disputed this in court. |
| Bennett submitted that the report had an “unusual structure” because while it appeared to reach one conclusion about Italian citizenship law, the final section suggested the law needed to be read “in a way that would negate all the conclusions in the first part”. | Bennett submitted that the report had an “unusual structure” because while it appeared to reach one conclusion about Italian citizenship law, the final section suggested the law needed to be read “in a way that would negate all the conclusions in the first part”. |
| In the final section of the advice, the authors note disagreement among Italian law experts and claim it would breach the “principle of reasonableness” in the Italian constitution if citizenship were conferred automatically without the person choosing to take it up. | |
| The report concluded it was arguable that Italian legislation may only have given Canavan and his mother a “potential citizenship right” that needed to be “activated”. | The report concluded it was arguable that Italian legislation may only have given Canavan and his mother a “potential citizenship right” that needed to be “activated”. |
| Although legal counsel can be expected to minimise the import of legal arguments unfavourable to their client, the two alternative conclusions from the report leave the court in the position of possibly having to resolve an Italian law dispute to determine Canavan’s citizenship. | Although legal counsel can be expected to minimise the import of legal arguments unfavourable to their client, the two alternative conclusions from the report leave the court in the position of possibly having to resolve an Italian law dispute to determine Canavan’s citizenship. |
| 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. | 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. |
| On Tuesday Bennett quoted extensively from that passage to suggest that Canavan may never have been an Italian citizen and the only expert evidence before the court is that the better view of Italian law is he was not. | On Tuesday Bennett quoted extensively from that passage to suggest that Canavan may never have been an Italian citizen and the only expert evidence before the court is that the better view of Italian law is he was not. |
| The submission appeared to catch the judges by surprise. Justice Stephen Gageler queried whether there was “any hint” of the claim in written submissions. | |
| Bennett drew the court’s attention to one paragraph referencing “doubts over whether the Italian citizenship law of 1912 validly conferred Italian citizenship on senator Canavan at all”. | Bennett drew the court’s attention to one paragraph referencing “doubts over whether the Italian citizenship law of 1912 validly conferred Italian citizenship on senator Canavan at all”. |
| In a directions hearing on 24 August before the chief justice, Susan Kiefel, Bennett also referred to “doubt under Italian constitutional law as to the validity of that retrospectivity”. | |
| On Tuesday Kiefel noted that no application was made to cross-examine the experts and the advice suggested having citizenship “foisted” upon a person may breach “a constitutional principle of reasonableness”. “Quite what that means, we do not know,” she said. | |
| Although Canavan’s mother registered herself as an Italian citizen resident overseas and Canavan was also recorded as such, Bennett said that was not an election to become citizens and could not make Canavan a citizen without a declaration from him. | Although Canavan’s mother registered herself as an Italian citizen resident overseas and Canavan was also recorded as such, 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 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. | 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.” | “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.” |