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.