Com­plex­ity spells dan­ger for Nats

The Australian - - THE NATION - DAVID CROWE COM­MENT

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.

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