Coun­ter­ing for­eign over­reach the key

The Weekend Australian - - THE NATION - CHRIS MER­RITT LE­GAL AF­FAIRS EDI­TOR

If the High Court is to find a mid­dle course through the cit­i­zen­ship catas­tro­phe af­fect­ing fed­eral par­lia­ment, it might well be built around a more as­sertive Aus­tralian re­sponse to the over­reach of cit­i­zen­ship laws by Bri­tain and Italy.

Such an out­come might make it pos­si­ble for the court to main­tain the in­tegrity of the con­sti­tu­tional ban on dual ci­ti­zens en­ter­ing par­lia­ment, while avoid­ing in­jus­tice to some of those who have been af­fected by this ban.

The ban, which is con­tained in sec­tion 44(i) of the Con­sti­tu­tion, gen­er­ally op­er­ates by re­ly­ing on the cit­i­zen­ship laws of other coun­tries to de­ter­mine which politi­cians are dual ci­ti­zens.

But there is an ex­cep­tion — for­eign cit­i­zen­ship laws that were de­scribed as “ex­or­bi­tant” dur­ing this week’s High Court hear­ing on whether seven fed­eral politi­cians have breached the ban.

For­mer so­lic­i­tor-gen­eral David Ben­nett QC urged the court to ap­ply this ex­cep­tion to his client, for­mer govern­ment min­is­ter Matt Cana­van, who was caught up in this af­fair be­cause Italy’s con­sti­tu­tional court ret­ro­spec­tively ex­tended the reach of that coun­try’s cit­i­zen­ship law.

If the High Court were to ap­ply — or even ex­pand — the “ex­or­bi­tant law” ex­cep­tion, it might be able to avoid mak­ing the broader changes pro­posed by the govern­ment.

The govern­ment’s pro­posal would have the ef­fect of mean­ing sec­tion 44 would not ap­ply to politi­cians who did not know they were for­eign ci­ti­zens — a move that its crit­ics say would re­quire the court to “read in” new text to the Con­sti­tu­tion.

But if the court were to refuse to recog­nise Italy’s ret­ro­spec­tive law as valid, it might be able to save Cana­van — and some of the other ‘“cit­i­zen­ship seven”.

An­other ben­e­fi­ciary could be Nick Xenophon, who un­wit­tingly gained a form of Bri­tish ”cit­i­zen­ship” that does not even al­low him to en­ter Bri­tain.

But a more dis­crim­i­nat­ing ap­proach to the recog­ni­tion of for­eign cit­i­zen­ship laws might not help Deputy Prime Min­is­ter Barn­aby Joyce, who knew his fa­ther had been born in New Zealand and who un­wit­tingly in­her­ited New Zealand cit­i­zen­ship.

When mea­sured by the num­ber of lawyers crammed into the High Court this week, the cit­i­zen­ship case will take some beat­ing.

The main bar ta­ble was able to ac­com­mo­date only 19 of the 24 silks and bar­ris­ters with the rest rel­e­gated to two small ta­bles be­hind them.

Four of those lawyers dom­i­nated this case: on the govern­ment’s side were So­lic­i­tor-Gen­eral Stephen Don­aghue QC and Bret Walker SC, who are among the na­tion’s most re­spected ad­vo­cates.

Their dom­i­nance was clear from the start. On day one, they ar­rived like di­vas, black robes flow­ing, long af­ter other bar­ris­ters had taken their seats at the main ta­ble and just be­fore the court fell silent, await­ing the ar­rival of the seven judges.

Op­pos­ing Don­aghue and Walker was the equally high­pow­ered team that had been as­sem­bled by Joyce’s po­lit­i­cal ri­val, Tony Wind­sor.

Of­fi­cially, Wind­sor’s team was led by for­mer Fed­eral Court judge Ron Merkel.

But Wind­sor’s real cham­pion was for­mer so­lic­i­tor-gen­eral Justin Glee­son SC, who fell out with the govern­ment last year

If Wind­sor fails to dis­lodge Joyce from par­lia­ment, it will not be for want of try­ing

and re­signed af­ter con­firm­ing he had se­cretly briefed the La­bor Party about the dis­pute.

The depth of Wind­sor’s le­gal fire­power did not end there. Sit­ting in court be­hind Glee­son and Merkel were two part­ners from US lit­i­ga­tion pow­er­house Quinn Emanuel Urquhart & Sullivan, Michael Mills and Michelle Fox.

And be­hind them were solic­i­tors from this firm, which has a suc­cess rate in court that has been es­ti­mated by the le­gal press at some­where between 88 and 91 per cent.

This helps ex­plain why this year’s profit per part­ner at Quinn Emanuel was a touch over $US5 mil­lion ($6.4m).

If Wind­sor fails to dis­lodge Joyce from par­lia­ment. it will not be for want of try­ing.

While the four lead­ing silks had the star­ring roles, there were mem­o­rable mo­ments of ad­vo­cacy among the bit play­ers. Robert Newlinds SC, rep­re­sent­ing se­na­tor Malcolm Roberts, used an econ­omy of lan­guage when ex­plain­ing why his client’s case was just as strong, and pos­si­bly stronger, than the govern­ment’s ar­gu­ment in favour of Joyce and se­na­tor Fiona Nash.

“I’m try­ing to get in to the same boat as Joyce and Nash and then show that I’m in a bet­ter boat,” Newlinds said.

Newspapers in English

Newspapers from Australia

© PressReader. All rights reserved.