Draw­ing the line is the hard part for judges


High Court judge James Edel­man used his best dead­pan de­liv­ery yes­ter­day when he in­ter­rupted Solic­i­tor-Gen­eral Stephen Don­aghue and asked a ques­tion that might have gut­ted a lesser man.

There have been good ar­gu­ments on both sides of the dual ci­ti­zen­ship case but Edel­man’s ques­tion might in­di­cate that the chief crit­i­cism of the gov­ern­ment’s case has been hit­ting home.

It caught Don­aghue mid­flight while he was wrap­ping up the ar­gu­ment for a new way of ap­ply­ing the ban on dual cit­i­zens en­ter­ing par­lia­ment.

If the pro­posed mech­a­nisms were im­ple­mented, Don­aghue told the court, it would be easy to ap­ply the ban on dual cit­i­zens in par­lia­ment be­cause there would be “an ob­jec­tive bright line ap­proach”.

That ban is con­tained in sec­tion 44(i) of the Con­sti­tu­tion — a doc­u­ment that can le­git­i­mately be in­ter­preted by the High Court but can be changed only by ref­er­en­dum.

This case, in re­al­ity, is all about where to draw the line be­tween those pro­cesses.

How, asked Edel­man, would Don­aghue go about “in­sert­ing text” into sec­tion 44(i) to achieve that “bright line” re­sult?

This was the equiv­a­lent of ask­ing the Solic­i­tor-Gen­eral when he stopped beat­ing his wife.

There was no hedg­ing. The judge premised his ques­tion on the as­sump­tion that the il­le­git­i­mate in­ser­tion of text in the Con­sti­tu­tion was part of what Don­aghue had in mind.

It might have merely been a tac­tic aimed at pro­vok­ing a clear re­sponse. But Edel­man’s ques­tion made it clear to the packed court­room that the main at­tack on the gov­ern­ment’s plan had gained some trac­tion.

Donoghue re­cov­ered well. But that’s not the point.

He gave Edel­man the stan­dard gov­ern­ment ar­gu­ment that there was no need to in­sert any text be­cause the wider mean­ing of the words favoured by the gov­ern­ment could be ob­tained by con­stru­ing them by ref­er­ence to the his­tory and pur­pose of sec­tion 44(i).

To win, the gov­ern­ment needs the court to ap­ply sec­tion 44(i) in a way that makes it pos­si­ble for Deputy Prime Min­is­ter Barn­aby Joyce and two gov­ern­ment sen­a­tors to stay in par­lia­ment be­cause they did not know they held dual ci­ti­zen­ship.

What­ever the out­come of this case, the only thing that will be as­serted with cer­tainty is that the High Court will be crit­i­cised.

The only thing in doubt is whether that crit­i­cism will be about judicial ac­tivism (a gov­ern­ment win), or in­jus­tice to at least some of the politi­cians (a gov­ern­ment loss).

Nick Xenophon, for ex­am­ple, is at risk of be­ing pil­lo­ried be­cause he un­know­ingly in­her­ited a form of Bri­tish ci­ti­zen­ship that does not even de­serve to be called ci­ti­zen­ship. It did not even give him the right to en­ter Bri­tain.

There is also a real doubt about whether Matt Cana­van was ever an Ital­ian ci­ti­zen.

The High Court has been pre­sented with rad­i­cally dif­fer­ent pro­pos­als on how it should re­solve this af­fair.

The chal­lenge now is to avoid in­jus­tice to in­di­vid­u­als, while up­hold­ing the sanc­tity of the Con­sti­tu­tion.

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