Al­low­ing MPs to plead ig­no­rance on cit­i­zen­ship will cause 'rad­i­cal in­sta­bil­ity'

The Guardian Australia - - Front Page - Paul Karp

Ac­cept­ing that politi­cians who are ig­no­rant of their for­eign cit­i­zen­ship can sit in par­lia­ment will lead to “rad­i­cal in­sta­bil­ity” and a re­peat of the el­i­gi­bil­ity chaos of 2017, the court of dis­puted re­turns has heard.

The for­mer solic­i­tor gen­eral, Justin Glee­son, told the court on Wednesday it should re­ject the com­mon­wealth’s case that par­lia­men­tar­i­ans with no knowl­edge of their dual cit­i­zen­ship are el­i­gi­ble be­cause they did not “vol­un­tar­ily ob­tain or re­tain” al­le­giance to a for­eign power.

Glee­son, on be­half of the for­mer in­de­pen­dent MP Tony Wind­sor who is chal­leng­ing Barn­aby Joyce’s el­i­gi­bil­ity, ar­gued al­le­giance de­rives from one’s sta­tus as a for­eign cit­i­zen re­gard­less of whether one is aware of it.

A par­lia­men­tar­ian’s dual cit­i­zen­ship cre­ates an “ir­re­me­di­a­ble con­flict ir­re­spec­tive of their knowl­edge of it”, he said.

The for­mer solic­i­tor gen­eral gave the ex­am­ple of a dual Greek-Aus­tralian cit­i­zen con­scripted into mil­i­tary ser­vice in Greece de­spite ig­no­rance of their for­eign cit­i­zen­ship.

Glee­son also noted New Zealand crim­i­nal law has ex­tra-ter­ri­to­rial ef­fect on its cit­i­zens, which would have ren­dered Joyce sus­cep­ti­ble to the crim­i­nal law of New Zealand be­fore he re­nounced his dual cit­i­zen­ship on 12 Au­gust.

The friend of the court, Ge­of­frey Ken­nett, agreed that there may be “du­ties un­der for­eign law that could con­ceiv­ably be en­forced upon a per­son” re­gard­less of their knowl­edge.

Sec­tion 44 of the com­mon­wealth con­sti­tu­tion states that peo­ple are in­ca­pable of be­ing cho­sen as a se­na­tor or MP if they are the sub­ject or cit­i­zen of a for­eign power.

On Tues­day, Joyce and Fiona Nash’s coun­sel, Brett Walker, sub­mit­ted the sec­tion does not dis­qual­ify peo­ple who did not have knowl­edge of their for­eign cit­i­zen­ship and, if they dis­cov­ered it, they should have a rea­son­able time to re­nounce it.

Glee­son ar­gued that such a “grace pe­riod” would al­low an un­known num­ber of peo­ple to re­main in par­lia­ment with an al­le­giance to a for­eign power for a time dur­ing which the in­ter­ests of the two na­tions may come into con­flict, such as dur­ing trade ne­go­ti­a­tions or war.

If par­lia­men­tar­i­ans with no knowl­edge of their for­eign cit­i­zen­ship need not re­nounce it, Glee­son sug­gested that elec­tors, po­lit­i­cal op­po­nents and the me­dia would search out dual cit­i­zens in the par­lia­ment to try to force them to ac­knowl­edge and re­nounce it.

The gov­ern­ment’s pre­ferred con­struc­tion would lead to “a se-

quence like this year” with un­cer­tainty hang­ing over par­lia­men­tar­i­ans’ sta­tus, Glee­son warned, and “rad­i­cal in­sta­bil­ity” over the length of the grace pe­riod to be given.

Ear­lier on Wednesday Matt Cana­van’s lawyer sug­gested it was a strict in­ter­pre­ta­tion of the dis­qual­i­fi­ca­tion of par­lia­men­tar­i­ans with dual cit­i­zen­ship that would lead to “ge­nealog­i­cal witch-hunts” by po­lit­i­cal op­po­nents.

David Ben­nett ar­gued that cit­i­zen­ship by de­scent pass­ing down through mul­ti­ple gen­er­a­tions was an “ex­or­bi­tant law” that would dis­qual­ify politi­cians with a “slen­der con­nec­tion” to a for­eign power.

Ben­nett said that if the court recog­nised “in­def­i­nite” cit­i­zen­ship by de­scent as a dis­qual­i­fi­ca­tion it would give rise to “of­fen­sive in­quiries” about whether a per­son were one quar­ter, one eighth or one six­teenth for­eign, which was “in­ap­pro­pri­ate” in an im­mi­grant na­tion.

Glee­son sub­mit­ted that the “or­di­nary” way to fix hav­ing dual cit­i­zen­ship is to re­nounce it be­fore nom­i­nat­ing for par­lia­ment. He said the ex­cep­tions to the gen­eral rule that dual cit­i­zens are in­el­i­gi­ble are lim­ited to ex­or­bi­tant for­eign laws or those that threaten Aus­tralia’s rep­re­sen­ta­tive democ­racy, such as if a for­eign power prac­ti­cally re­fused to al­low Aus­tralians to re­nounce their dual cit­i­zen­ship.

Ear­lier, the lawyer for Greens Larissa Wa­ters and Scott Lud­lam ar­gued the court should not re­ward “neg­li­gence” by let­ting off par­lia­men­tar­i­ans who did not take “rea­son­able steps” to in­ves­ti­gate their dual cit­i­zen­ship,

Brian Walters ar­gued that the coun­try of one’s birth and one’s par­ents’ cit­i­zen­ship con­sti­tuted “pri­mary facts” that should prompt in­quiries about one’s cit­i­zen­ship.

Once as­pir­ing par­lia­men­tar­i­ans had such facts and wanted to nom­i­nate for elec­tion they have “a duty not only to be hon­est but to be care­ful”, he said.

“Neg­li­gence in com­ply­ing with one’s con­sti­tu­tional obli­ga­tions should never pro­duce a bet­ter re­sult than dili­gence,” he said, propos­ing a test of whether par­lia­men­tar­i­ans had taken “rea­son­able steps” to as­cer­tain their for­eign cit­i­zen­ship.

But the Greens’ pro­posed test was im­me­di­ately doubted by the chief jus­tice, Su­san Kiefel. Kiefel ques­tioned how the case could “work back­wards” from the con­clu­sion in Sykes v Cleary­that par­lia­men­tar­i­ans had to take rea­son­able steps to re­nounce for­eign cit­i­zen­ship to ex­tend it to a new re­quire­ment that they had to take rea­son­able steps to discover their dual cit­i­zen­ship.

“I don’t know how you get there,” she said.

Walters ar­gued that sec­tion 44 was de­signed not only to pre­vent par­lia­men­tar­i­ans hold­ing “split al­le­giances” to for­eign pow­ers but also to “re­move per­cep­tions of di­vided loy­alty” and en­hance Aus­tralians’ con­fi­dence in its par­lia­ment.

He said the sec­tion should be un­der­stood as an “as­ser­tion of Aus­tralian sovereignty … that gov­ern­ment of Aus­tralians will be only by Aus­tralians”.

Re­peated ques­tion­ing from the bench sug­gested that such a read­ing was con­sis­tent with a dis­qual­i­fi­ca­tion of all for­eign cit­i­zens but did not sup­port the “rea­son­able steps” test.

Walters con­ceded that his own clients did not take “rea­son­able steps” to in­ves­ti­gate their cit­i­zen­ship be­cause Lud­lam, who was nat­u­ralised as an Aus­tralian at age 19, knew he was New Zealan­der be­fore that, and Wa­ters, who was born in Canada but left at 11 months of age, did not in­ves­ti­gate whether she was Cana­dian.

Nick Xenophon’s coun­sel, An­drew Tok­ley, ar­gued that his Bri­tish over­seas cit­i­zen­ship did not in­clude the “core” fea­tures of cit­i­zen­ship, the abil­ity to en­ter and re­side in Bri­tain, and thus should not be a bar to el­i­gi­bil­ity.

The hear­ing con­tin­ues on Thursday with sub­mis­sions on be­half of One Na­tion se­na­tor Mal­colm Roberts and sub­mis­sions in re­ply.

Pho­to­graph: Dan Peled/AAP

The lawyer for for­mer Greens se­na­tor Larissa Wa­ters con­ceded she did not take ‘rea­son­able steps’ to in­ves­ti­gate whether she was a dual cit­i­zen.

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