Don’t let Con­sti­tu­tion be used as weapon, court told

The Australian - - THE NATION - ROSIE LEWIS

The Con­sti­tu­tion will be used as a po­lit­i­cal weapon to take down op­po­nents if the High Court ac­cepts the “hard­line” dual ci­ti­zen­ship case against Deputy Prime Min­is­ter Barn­aby Joyce, the fed­eral gov­ern­ment has warned.

After a three-day hear­ing for the “ci­ti­zen­ship seven”, the Turnbull gov­ern­ment hopes for swift de­liv­ery of the court’s find­ings on Mr Joyce, who will head to a by­elec­tion in his NSW elec­torate of New Eng­land if he is found in­el­i­gi­ble to sit in par­lia­ment.

Mal­colm Turnbull needs a re­sult by Novem­ber 10 to hold a 33-day by-elec­tion cam­paign be­fore Christ­mas, dur­ing which time his one-seat ma­jor­ity in the lower house would be lost.

Chief Jus­tice Su­san Kiefel yes­ter­day de­clared it “hardly nec­es­sary” to say the court was aware of the need to give its an­swers as soon as pos­si­ble, but ac­knowl­edged it was “not al­ways pos­si­ble for the court to do so im­me­di­ately”.

After a force­ful ar­gu­ment from Mr Joyce’s po­lit­i­cal ri­val Tony Wind­sor that the Deputy Prime Min­is­ter should be dis­qual­i­fied be­cause he held an al­le­giance to a for­eign power, Solic­i­tor-Gen­eral Stephen Don­aghue QC, rep­re­sent­ing At­tor­ney-Gen­eral Ge­orge Bran­dis, tried to sal­vage the Na­tion­als leader’s po­lit­i­cal ca­reer.

Dr Don­aghue said any per­son who had no “ac­tual knowl­edge” of their con­nec­tion with a for­eign state could not be said to hold a split al­le­giance or fall foul of sec­tion 44 of the Con­sti­tu­tion, which deems those who are a “sub­ject or a ci­ti­zen or en­ti­tled to the rights or priv­i­leges of a sub­ject or ci­ti­zen of a for­eign power” in­ca­pable of sit­ting in par­lia­ment.

“While it would be pos­si­ble to have a very hard­line ap­proach of the kind that is be­ing urged (by the con­tra­dic­tor), that hard­line ap­proach goes well be­yond any iden­ti­fied con­sti­tu­tional pur­pose for the op­er­a­tion of 44(i),” Dr Don­aghue said.

“(It) has the con­se­quence that a po­ten­tially very sig­nif­i­cant num­ber of Aus­tralian cit­i­zens are dis­qual­i­fied or at least con­tin­gently dis­qual­i­fied from a ca­pac­ity to sit in the com­mon­wealth par­lia­ment.

“There is, on the con­tra­dic­tor’s case, a some­what per­verse in­cen­tive for peo­ple who have knowl­edge about a can­di­date’s ci­ti­zen­ship to with­hold that knowl­edge un­til after they have been elected be­cause at that point they can­not do any­thing about it.

“So it does not en­cour­age a swift res­o­lu­tion of these mat­ters. It rather lends it­self to sec­tion 44 be­ing used as a po­lit­i­cal weapon in a way that is quite far removed from the con­sti­tu­tional pur­pose of the pro­vi­sion.”

Mr Joyce, Na­tion­als deputy leader Fiona Nash, Na­tion­als sen­a­tor Matthew Cana­van and in­de­pen­dent sen­a­tor Nick Xenophon have dis­cov­ered they have for­eign ci­ti­zen­ship by de­scent of a par­ent, but their lawyers say they ac­quired it in­vol­un­tar­ily and un­know­ingly.

In ev­i­dence that frus­trated the judges, Robert Newlinds SC, ap­pear­ing for One Na­tion’s Mal­colm Roberts, claimed his client had “ex­actly the same” knowl­edge about his ci­ti­zen­ship as the Na­tion­als lead­er­ship team but had the “wit” to recog­nise he might be a Bri­tish ci­ti­zen.

Mr Newlinds lashed Sen­a­tor Bran­dis’s ar­gu­ment that there was a clear dis­tinc­tion be­tween “nat­u­ral-born” cit­i­zens and those born over­seas who be­came nat­u­ralised, call­ing it a “fun­da­men­tally un-Aus­tralian no­tion”.

Ge­of­frey Ken­nett SC con­ceded Sen­a­tor Xenophon’s Bri­tish over­seas ci­ti­zen­ship, which does not give him right of en­try or right to live in Bri­tain, may “very well be a rea­son why one would find Sen­a­tor Xenophon is not, for these pur­poses, a ci­ti­zen”.

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