Complexity spells danger for Nats
The sheer complexity of the legal argument in the High Court spells grave danger for Barnaby Joyce.
The plea to save Joyce depends on a tangled argument that ventures into new territory on how to read a single sentence from section 44 of the Constitution forbidding MPs from having an allegiance to a foreign power.
Over three days this week, the court was asked to consider everything from the unexplained changes in the drafting of section 44 in the 1890s to the uncertain implications of a change in Italian citizenship law in 1983.
The more tangled it gets, the greater the risk the nation’s top court will tie itself up in knots. A simple approach could be far more appealing. And the simplest decision is a reading of the constitution that disqualifies Joyce and others from parliament. The questions from the bench suggest the court is looking to settle this issue for the long term. A convoluted solution may be no solution at all.
In the main argument from the government yesterday, SolicitorGeneral Stephen Donaghue set out four pathways to apply section 44 in a way that would not only rescue Joyce but most other politicians who are born in Australia but have notional rights to the citizenship of other countries.
Should “natural-born” Australians be spared any problem under section 44 while “naturalised” ones incur all the obligations? When should a politician know he or she “has ever been” a foreign citizen?
One suggestion was that a politician would be safe until he or she exercised a right to foreign citizenship. Bret Walker, acting for Joyce and his deputy Fiona Nash, raised the “vulgar” scenario of a politician choosing the shorter immigration queue at Rome Airport. The government argument is crucial to saving not only Joyce and Nash but their Nationals colleague Matt Canavan.
Donaghue said his approach would produce a “very bright line” to apply section 44, with an “objective question” about whether anyone had ever exercised any rights under foreign law. It sounded simple until James Edelman, the most recent appointment to the bench, asked: “How would one notionally insert texts so that it were to reach this result?” Donaghue did not have an easy answer.
The only simple moment was the plea from Canavan’s barrister, David Bennett, for the court to realise the importance of a speedy decision. He needn’t have asked. The chief justice, Susan Kiefel, made it very clear she already knew.