Countering foreign overreach the key
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.