Matt Cana­van claim that Ital­ian cit­i­zen­ship is 'doubt­ful' should be re­jected, court hears

The Guardian Australia - - News - Amy Re­meikis and Paul Karp

The friend of the court of dis­puted re­turns has re­jected Matt Cana­van’s claim he should win his el­i­gi­bil­ity case be­cause it is “doubt­ful” that he is Ital­ian.

Ge­of­frey Ken­nett told the court on Thursday it had only be­come clear on Tues­day af­ter­noon that Cana­van is now claim­ing he may never have been Ital­ian, an is­sue which should have been “crys­talised in a clearer way” much sooner.

When he re­signed from cab­i­net on 25 July, Cana­van said “ac­cord­ing to the Ital­ian gov­ern­ment I am an Ital­ian ci­ti­zen”.

But Cana­van’s lawyers never con­ceded the point, and on Tues­day quoted ex­ten­sively from an ex­pert re­port that ap­peared to con­clude he was Ital­ian but noted that ex­perts are di­vided on whether a 1983 Ital­ian con­sti­tu­tional court de­ci­sion could be back­dated to Cana­van’s birth in 1980.

In the 30-page re­port ten­dered to the court, and ob­tained by Guardian Aus­tralia, Mau­i­rizio Delfino and Prof Ben­jamino Car­avita di Tor­rito, con­clude that the 1983 de­ci­sion was retroac­tive, but then state that would in­fringe the prin­ci­ple of rea­son­able­ness in the Ital­ian con­sti­tu­tion.

On Tues­day, Cana­van’s coun­sel, David Ben­nett, sum­marised the re­port by say­ing its ul­ti­mate con­clu­sion was there­fore that Cana­van may have needed to take an ac­tion to ac­ti­vate his cit­i­zen­ship and he did not be­come a ci­ti­zen au­to­mat­i­cally.

Ken­nett re­jected that read­ing, sub­mit­ting that the court should be slow to in­ter­fere with the 1983 de­ci­sion by con­clud­ing it would in­fringe the prin­ci­ple of rea­son­able­ness.

He sub­mit­ted that Cana­van’s claim it was “doubt­ful and there­fore not proved” he was Ital­ian could not be ac­cepted given there was no con­tra­dic­tor in the case.

Ken­nett ac­cused Cana­van’s lawyers of in ef­fect at­tempt­ing to place “an onus of proof on some­one who doesn’t ex­ist and then claim­ing vic­tory when that onus is not met”.

Ken­nett sub­mit­ted that if the re­port left the judges un­able to be sat­is­fied Cana­van was Ital­ian, then it may sug­gest the ex­pert ev­i­dence is not in a proper state to de­cide Cana­van’s case.

While the re­port does in­clude the ar­gu­ment pre­sented by Ben­nett in court, it also states that Cana­van “ac­quired the Ital­ian cit­i­zen­ship au­to­mat­i­cally iure­san­gui­nis (through an­ces­try)” be­cause of a 1983 Ital­ian con­sti­tu­tional court de­ci­sion, which meant that cit­i­zen­ship is also passed down the ma­ter­nal line.

“Both Se­na­tor Cana­van and his mother did not be­come Ital­ian cit­i­zens at the time for their birth but be­came Ital­ian cit­i­zens by the date of their birth as a re­sult of the retroac­tive ef­fect of the (1983) de­ci­sion,” Delfino re­ported. “Since un­der Ital­ian law Ital­ian cit­i­zen­ship is au­to­mat­i­cally ac­quired by birth, the rel­e­vant ad­min­is­tra­tion de­ci­sion has a mere declara­tory ef­fect.

“This means that the ad­min­is­tra­tive de­ci­sion de­clares that the cit­i­zen­ship al­ready ex­ists and does not cre­ate the cit­i­zen­ship right.”

Ben­nett sub­mit­ted that the re­port had an “un­usual struc­ture” be­cause while it ap­peared to reach one con­clu­sion about Ital­ian cit­i­zen­ship law, the fi­nal sec­tion suggested the law needed to be read “in a way that would negate all the con­clu­sions in the first part”.

In the fi­nal sec­tion of the ad­vice, the authors note dis­agree­ment among Ital­ian law ex­perts and claim it would breach the “prin­ci­ple of rea­son­able­ness” in the Ital­ian con­sti­tu­tion if cit­i­zen­ship were con­ferred au­to­mat­i­cally with­out the per­son choos­ing to take it up.

The re­port con­cluded it was ar­guable that Ital­ian leg­is­la­tion may only have given Cana­van and his mother a “po­ten­tial cit­i­zen­ship right” that needed to be “ac­ti­vated”.

Al­though le­gal coun­sel can be ex­pected to min­imise the im­port of le­gal ar­gu­ments un­favourable to their client, the two al­ter­na­tive con­clu­sions from the re­port leave the court in the po­si­tion of pos­si­bly hav­ing to re­solve an Ital­ian law dis­pute to de­ter­mine Cana­van’s cit­i­zen­ship.

If ac­cepted by the court, the ar­gu­ment could see the for­mer fed­eral re­sources min­is­ter re­tain his Se­nate seat, even if the other six par­lia­men­tar­i­ans are ruled in­el­i­gi­ble by a strict read­ing that all dual cit­i­zens are in­el­i­gi­ble to sit in par­lia­ment.

On Tues­day Ben­nett quoted ex­ten­sively from that pas­sage to sug­gest that Cana­van may never have been an Ital­ian ci­ti­zen and the only ex­pert ev­i­dence be­fore the court is that the bet­ter view of Ital­ian law is he was not.

The sub­mis­sion ap­peared to catch the judges by sur­prise. Jus­tice Stephen Gageler queried whether there was “any hint” of the claim in writ­ten sub­mis­sions.

Ben­nett drew the court’s at­ten­tion to one para­graph ref­er­enc­ing “doubts over whether the Ital­ian cit­i­zen­ship law of 1912 validly con­ferred Ital­ian cit­i­zen­ship on se­na­tor Cana­van at all”.

In a di­rec­tions hear­ing on 24 Au­gust be­fore the chief jus­tice, Su­san Kiefel, Ben­nett also re­ferred to “doubt un­der Ital­ian con­sti­tu­tional law as to the va­lid­ity of that ret­ro­spec­tiv­ity”.

On Tues­day Kiefel noted that no ap­pli­ca­tion was made to cros­sex­am­ine the ex­perts and the ad­vice suggested hav­ing cit­i­zen­ship “foisted” upon a per­son may breach “a con­sti­tu­tional prin­ci­ple of rea­son­able­ness”. “Quite what that means, we do not know,” she said.

Al­though Cana­van’s mother reg­is­tered her­self as an Ital­ian ci­ti­zen res­i­dent over­seas and Cana­van was also recorded as such, Ben­nett said that was not an elec­tion to be­come cit­i­zens and could not make Cana­van a ci­ti­zen with­out a dec­la­ra­tion from him.

Al­though the Bris­bane con­sulate said Cana­van was reg­is­tered as an Ital­ian abroad, Ben­nett said it ap­peared that ad­vice was based on Cana­van’s mother’s reg­is­tra­tion, which the ex­pert ev­i­dence said was “ir­rel­e­vant” to his cit­i­zen­ship.

Sub­mis­sions from the am­i­cus cu­riae in­ter­ven­ing in Cana­van’s case sub­mit­ted that he was an Ital­ian ci­ti­zen on the date of his nom­i­na­tion (13 May 2016) but did not re­fer to in­de­pen­dent ex­pert ev­i­dence.

“Se­na­tor Cana­van’s Ital­ian cit­i­zen­ship has been dis­cov­er­able for over 30 years,” the sub­mis­sions said. “To com­plain about the retroac­tive op­er­a­tion of the law is far too del­i­cate a sub­mis­sion in those cir­cum­stances.”

Pho­to­graph: Mick Tsikas/AAP

The Lib­eral Na­tional party se­na­tor Matt Cana­van, who quit Mal­colm Turn­bull’s cab­i­net over cit­i­zen­ship con­cerns.

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