Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon

[2017] HCATrans 199

[2017] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Canberra  No C11 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR THE HON. MATTHEW CANAVAN

Office of the Registry
  Canberra  No C12 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MR SCOTT LUDLAM

Office of the Registry
  Canberra  No C13 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MS LARISSA WATERS

Office of the Registry
  Canberra  No C14 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR MALCOLM ROBERTS

Office of the Registry
  Canberra  No C15 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
THE HON. BARNABY JOYCE MP

Office of the Registry
  Canberra  No C17 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
SENATOR THE HON. FIONA NASH

Office of the Registry
  Canberra  No C18 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
SENATOR NICK XENOPHON

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 10 OCTOBER 2017, AT 10.16 AM

Copyright in the High Court of Australia

____________________

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with my learned friends, MR P.D. HERZFELD, MR M.P. COSTELLO and MS J.D. WATSON for the Attorney‑General of the Commonwealth appearing in all references.  (instructed by Australian Government Solicitor)

MR D.M.J. BENNETT, QC:   May it please the Court, I appear with my learned friends,  MR A.L. TOKLEY, SC, MR G.J.D. DEL VILLAR and MR A.K. FLECKNOE‑BROWN, for Senator Canavan.  (instructed by Stokes Moore)

MR B.E. WALTERS, QC:   May it please the Court, I appear with my learned friends, MS E.A. BENNETT and MR A.N.P. McBETH, for Mr Ludlam and Ms Waters.  (instructed by Fitzgerald & Browne)

MR C.R.C. NEWLINDS, SC:   If the Court pleases, I appear with my learned friends, MR P. KULEVSKI and MR R.J. SCHEELINGS, and we appear for Senator Roberts.  (instructed by Holman Webb Lawyers)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR G.E.S. NG, for Mr Joyce MP and Senator Nash.  (instructed by Everingham Solomons Solicitors and MinterEllison)

MR A.L. TOKLEY, SC:   May it please the Court, I appear with my learned friends, MR H.M. HEUZENROEDER and MR S.A. McDONALD, for Senator Xenophon.  (instructed by Nick Xenophon & Co Lawyers)

MR R. MERKEL, QC:   If the Court pleases, I appear with my learned friend, MR J.T. GLEESON, SC, my learned friends, MR E.M. NEKVAPIL and MS S. ZELEZNIKOW, for Mr Windsor, in the Joyce matter.  (instructed by Quinn Emanuel Urquhart & Sullivan)

MR G.R. KENNETT, SC:   May it please the Court, in the references concerning Senators Canavan, Nash and Xenophon, I appear as amicus curiae with my learned friend, MR B.K. LIM.  (instructed by Australian Government Solicitor )

KIEFEL CJ:   Mr Kennett.  Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, seven matters have been referred by Parliament to this Court sitting as the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918. In all seven of those matters the persons who have been referred to the Court were citizens of a foreign country according to the domestic law of the relevant foreign country at the time of their nomination for the election that was held in July 2016.

The questions that have been referred are in substantially common form.  If your Honours could take volume 2 of the court book and turn to page 254 you will see there the question relating to Senator Canavan, which is in substantially common form.  Your Honours will see on the second half of page 254 that:

the Senate resolved to refer to the Court of Disputed Returns the following questions:

(a)whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation of Queensland in the Senate for the place for which Senator Matthew Canavan was returned;

(b)if the answer to Question (a) is “yes”, by what means and in what manner that vacancy should be filled -

Then there are some formal questions.  There are subtle variations in some of the questions but nothing that your Honours need to concern yourselves with.

As your Honours have seen there, there is a question about how the vacancy should be filled but there is no dispute, as we understand it, that if any of the senators who have been referred were disqualified, their place should be filled by a special count, as occurred in Re Day and Re Culleton.  In relation to the Hon Barnaby Joyce MP, were the Court to find that he was disqualified, there is no dispute that that vacancy should be filled by a by‑election.

Of the seven references, five of them, in our submission, being all of the references except those concerning Mr Ludlam and Senator Roberts, raise an issue not previously considered by this Court concerning the application of section 44(1) of the Constitution to what section 34 of the Constitution terms a “natural‑born” subject, that being a status that is distinguished in section 34 from a naturalised citizen or subject, the distinction between a natural‑born subject and a naturalised subject being one that has existed, relevantly, in the law concerning qualification to serve in Parliament for over 400 years.

For reasons that will develop, it is clear that the status of being a natural‑born subject refers to a person who becomes a subject by reason of the circumstances of that person’s birth.

BELL J:   That is a slightly different concept to the idea that one becomes a citizen by virtue of being born in a particular territory.  I raise it in relation to Ms Waters.

MR DONAGHUE:   Yes.  Ms Waters’ reference raises some complications but our submission will be – and I will develop this – that historically as a matter of common law one was a natural‑born subject only by reason of birth within the territory but that that concept was extended by statute to include certain persons born by – or a status acquired by reason of descent of the nationality of the parents and that both were treated as a natural‑born subject, provided they became a subject by reason of their birth – as distinct from naturalisation.

The novel question that we submit arises in relation to the five references is how section 44(i) of the Constitution operates with respect to a natural‑born Australian citizen who is also – by reason of the birth rather than any voluntary act taken by that person – a citizen of a foreign country. Before developing the argument we make about that, I will take your Honours fairly briefly if I can to the factual foundation that causes that issue to arise in the five references where we say that it does.

So if your Honours still have volume 2 of the court book could I start with Senator Canavan and ask your Honours to turn to his affidavit, which commences at page 269.  Your Honours will see in paragraph 1 Senator Canavan was born in Australia, in Queensland, in December of 1980 to parents who, you will see in paragraphs 2 and 3, were both Australian citizens.  His father was born in Toowoomba and his mother was born in Ayr in Queensland in 1955.  Senator Canavan was, by reason of his birth in Australia to Australian parents, an Australian citizen from the moment of his birth.

His affidavit discloses in paragraph 24 that he has never even visited Italy, let alone taken any step to seek to acquire Italian citizenship.  His only connection with Italy is that his maternal grandparents were both born there in the early part of the 20th century and your Honours will see that that is relating to the maternal grandparents in paragraphs 6 and 7 of the affidavit.  Both were born in Italy.  Both migrated to Australia and both naturalised as Australian citizens, his maternal grandfather taking that step in September 1955 and his maternal grandmother taking that step some four years later on 25 September 1959.

Because both grandparents had naturalised in the 1950s, the position is that, at the time that Senator Canavan was born in 1980, both of his parents and all of his grandparents were Australian citizens and nothing other than Australian citizens.  But notwithstanding that fact, the expert evidence as to Italian law is that nonetheless Senator Canavan is an Italian citizen. 

That, we submit, rather surprising conclusion turns on the quirk of family history that Senator Canavan’s mother was born in the period between her grandfather naturalising as an Australian citizen and her grandmother naturalising as an Australian citizen, the reason for that being that prior to 1983 Italian citizenship passed under Italian law only through the male line and because the Senator’s maternal grandfather naturalised just before, a month or two before his mother was born, she did not acquire Italian citizenship because citizenship could not pass through the male line, the grandfather no longer being an Italian citizen at the time that she was born.  The mother, of course, was still an Italian citizen at that time for a couple of years more, but that did not matter for the purposes of Italian law as then understood.

In 1983, however ‑ and your Honours will see this if you jump forward in the book to the expert report at page 315 ‑ by reason of a decision of the Italian Constitutional Court ‑ and this point is referred to in paragraph (iii) on that page – the then prevailing Italian law, which was a law that had stood since 1912 – was held 60 years later, in 1983, to be unconstitutional in part under the Italian Constitution of 1948 by reason of its discrimination between descent via the male and female line.

The effect of that ruling was that insofar as Italian domestic law drew that distinction it was unconstitutional so that any person born after the commencement of the Italian Constitution in 1948 who had an Italian mother or father was an Italian citizen. 

In practical terms, what that meant is that Senator Canavan’s mother, who was then aged 27 years and had lived in Australia and grown up in Australia as only an Australian citizen for 27 years, became on that date an Italian citizen and having become an Italian citizen on that date Senator Canavan who was 2 had an Italian mother and he likewise became an Italian citizen on that date.

There was no requirement under Italian law that he register with an embassy or anything of that kind in order to be an Italian citizen.  Registration rights, as the expert reports explain, are relevant to the exercise of citizenship rights, but not relevant to the existence of the rights themselves and so the Senator had that status from the date of the Constitutional Court decision in 1983.

Going back to page 270 in the affidavit, Senator Canavan was informed - in paragraph 9 he refers to being informed by his mother in 2006 that he may be eligible to obtain Italian citizenship by filling out and completing some forms and the Senator thought about it and decided he did not want to be an Italian citizen, and so he did not fill out or complete any of that paperwork which we submit quite plainly evidences a desire on his part to remain an Australian citizen and only an Australian citizen.

So, in light of those facts, we submit that it is not at all surprising that the Senator swears – as he does in paragraph 24 – that:

At no stage before the evening of 18 July –

when he had a conversation with his mother:

did it occur to [him] that [he] might be an Italian citizen.

For the reasons that we will develop, we submit that if section 44(i) operates against that set of facts, it operates in circumstances very far removed from the purpose that the Court identified for the provision in Sykes v Cleary, being a provision that is concerned with the owing of split or preventing split allegiances in the Parliament.  It illustrates, in our submission, just how inapt the contradicted submissions about carelessness are when considered against the actual circumstances of the referred persons.

Can I take your Honours next to Ms Waters?  It is in the same volume, volume 2 of the court book.  Her affidavit commences at page 524.  In paragraph 2 of that affidavit, Ms Waters explains that she was born in Canada in February 1977.  At the time both of her parents were Australian citizens.  Her mother had been born in Melbourne and her father had been born in Brisbane, both in 1948.  But they were in Canada studying and working in circumstances where neither of them were permanent residents of Canada at the time, which you see in paragraph 5.

While Ms Waters was born outside of Australia, the effect of section 11 of the Australian Citizenship Act 1948 at the time, was that she became an Australian citizen by descent by reason of the fact that her parents were Australian citizens.

GORDON J:   Was that at birth or registration?

MR DONAGHUE:   There was a requirement in the Act, your Honour, that the birth be registered.

GORDON J:   Up to five years.

MR DONAGHUE:   Indeed.  Our submission is that that is a condition subsequent so that once the registration occurs she was an Australian citizen from the moment of her birth.  She departed Canada with her parents at the age of 11 months of age, as is set out in paragraph 7 of the affidavit.  And, in paragraph 9, you will see she had never visited Canada since – never took any step to apply for Canadian citizenship.  Like Senator Canavan, she believed – based on a conversation with her parents – that she would be entitled to apply for Canadian citizenship in certain circumstances, when she turned 21, but that she would not become a citizen unless she took the active step of applying, and also like Senator Canavan she thought about it and decided not to.  So, consciously decided not to become a citizen of the country it turns out that she is a citizen of.

Again, in our submission, having regard to the facts that I have just quickly taken your Honours through, it is a surprising submission that is made by counsel on her behalf, that her failure to renounce Canadian citizenship was unreasonable because, in our submission, it was imminently reasonable unless one attributes to her a knowledge of Canadian law that she did not possess.  She thought she had a choice to apply for Canadian citizenship but she had not exercised and, in those circumstances, there was no reason for her to consider that she was a Canadian citizen.

Mr Joyce – your Honours need to take up volume 4 of the court book – his affidavit commences at page 1319, and you will see on that page in paragraph 1 he was born in Tamworth in New South Wales in 1967.  You see in paragraph 8 through to 11 he grew up in Australia, was educated in Australia, worked in Australia, served in the Australian Army Reserve.  His mother was born in Gundagai in New South Wales, but his father was born in New Zealand in 1924.

You see in paragraph 4 of the affidavit that his father migrated from [New Zealand] to Australia in 1947, some two decades before Mr Joyce was born.  At the time that Mr Joyce’s father migrated from New Zealand to Australia that had no effect on his citizenship status because at that point in time there was no such thing, either as New Zealand citizenship or Australian citizenship. 

Mr Joyce’s father was born a British subject, he left New Zealand when a British subject, he came to Australia while a British subject and he lived here thereafter.  However, when the concept of New Zealand citizenship was created in 1949, it was conferred upon people by reason of the place of their birth.  So after he left New Zealand, Mr Joyce’s father became a citizen of New Zealand, as a matter of New Zealand law. 

The evidence about what Mr Joyce knew about that requires one to look both at his affidavit and at some facts that have been agreed between Mr Joyce and Mr Windsor.  In paragraph 5 you will see that Mr Joyce was aware that his father had been born in New Zealand.  However, at the back of this volume of the book at page 1716, you will see that it is an agreed fact in paragraph 11 that:

Before the age of 10, Barnaby Joyce did not know that his father was a New Zealand citizen.

So he knew that he was born in New Zealand but he did not know about his father’s citizenship status before the age of 10.  From the age of 10, the position is addressed in paragraph 7 of the affidavit where Mr Joyce’s evidence, which Mr Windsor did not challenge, is that from about the age of 10:

I believed that my father was an Australian citizen and not a citizen of any other country. 

So, in our submission, when one puts those two facts together, the evidence is that Mr Joyce never knew that his father was a New Zealand citizen because it is agreed that he did not know it before the age of 10 and the unchallenged evidence is that from the age of 10 he believed he was a citizen of Australia and no other country.

Mr Joyce’s belief about his father’s citizenship, being an Australian and a citizen of no other place, in fact aligns with Mr Joyce’s father’s own understanding for a number of decades after he came to Australia because he lived in Australia for three decades, believing he was an Australian citizen until he applied to become a JP in the late seventies, 1978, and he was told at that point in time that he was not an Australian citizen.  That is dealt with in an affidavit from the father that your Honours will see at pages 1336 to 1337, particularly on 1337 at paragraph 7 where Mr Joyce’s father’s evidence is that:

In approximately 1978 I applied to become a Justice of the Peace at which time I was advised that I was not an Australian citizen.  This came as a surprise to me as I had considered myself an Australian citizen.  Shortly thereafter, I acquired Australian citizenship and renounced my New Zealand citizenship.

While that occurred in 1978 when Mr Joyce was 10 years old, the agreed fact – and your Honours do not need to turn back to it, it is 1717, paragraph 15 of the agreed facts – is that Mr Joyce did not know about those events – that is the JP event and the naturalisation and renunciation of New Zealand citizenship until very recently, until August of this year.

So all of that, we submit, is entirely consistent with Mr Joyce’s evidence at paragraph 14 of the affidavit on 1320 when Mr Joyce says:

I was not aware of the possibility that I might have been a citizen of New Zealand under the law of New Zealand prior to these enquiries being made.

He was not aware even of the possibility.  Senator Nash, your Honours, is back in volume 2.  Her affidavit commences at page 592.  In paragraph 3 you will see Senator Nash was born in Sydney.  She – and this is 14 through to 17 – grew up in Australia, was educated in Australia and spent her working life in Australia.  She has never travelled to the United Kingdom – you will see in paragraph 29.

Senator Nash’s father was born in Scotland – this is paragraph 4 – and her mother was born in New South Wales.  However, her parents divorced when she was eight years old, which you see in paragraph 13, and her evidence is that after that time she had very little contact with her father until the latter years of his life.  That may account for the evidence at paragraphs 4 and 5.  Senator Nash’s evidence in the second sentence of paragraph 4 is that she does not know the precise date of birth of her father.  Then in paragraph 5:

I do not know the date of birth, nor the place [of birth] at which my paternal grandparents were born.

I just invite your Honours to pause on that fact because the material before the Court in some of the references demonstrates that the place of birth of a paternal grandparent is a potentially critical fact under the law of other countries in terms of determining as to whether or not a person is a citizen of that country.

On the case put by the contradictors, if knowledge of citizenship is irrelevant to the way that section 44(1) operates then it is very difficult to see how someone in the circumstance of Senator Nash, who does not know about the circumstances of her grandparents, particularly her paternal grandparents, could ever satisfy themselves that they were not a citizen of a foreign country because just by reason of the place their grandparents were born they might have been. So it highlights, we submit, the possible difficult gaps in a person’s family history that are potentially critical on the case put by the contradictors in these references.

Senator Nash, like the other parliamentarians – this is paragraph 26 – believed that she held only Australian citizenship.  She did not know that she was a British citizen by descent; she did not know that British citizenship could be obtained automatically by descent, in paragraphs 26 and 27.

Finally, your Honours, Senator Xenophon, in the same volume of the court book, his affidavit commences at 654.  Paragraph 3 of the affidavit reveals that the Senator was born, again in Australia, in South Australia.  He - paragraph 5 - has resided all of his life in Australia and has always held Australian citizenship.  His parents – the situation is addressed in paragraph 12 of the affidavit. 

Paragraph 12.1 identifies that his father was born in Cyprus and emigrated from Cyprus to Australia in 1951.  His mother was born in Greece, and emigrated from Greece to Australia in 1956.  Both parents naturalised; the father – this is 12.7 and 12.8 – in 1965, and the mother in 1963.

In light of his heritage, when Senator Xenophon sought election – this is at paragraph 17 – he specifically turned his mind to the question of dual citizenship and he made inquiries as to whether or not he was a citizen of Greece or a citizen of Cyprus for the purpose of enabling him to renounce citizenship of those countries if it turned out that he possessed them.  In fact, he is not a citizen of either of those countries, and that is an agreed fact at page 762.

Interestingly, when the Senator made inquiries about whether he was a citizen of either country, he did that in part by making inquiries of the embassy, and his first inquiry to the Greek Embassy produced the result that your Honours will see at page 701 of the court book where the embassy told him that he was a Greek citizen.  Subsequent inquiries following that answer appear at 729 of the book, where he is advised by the embassy in Canberra that he is not a Greek citizen. 

So the suggestion made, I think by the amicus, that this is all very straightforward and all one has to do is ring the embassy, is not borne out, even on the limited material in the specific references here, and that is, we submit, not surprising when one looks at the complex nature of some of the underlying citizenship laws that are examined in detail in the expert reports.

Senator Xenophon’s evidence back on page 657 at paragraph 16 is that at no time prior to the elections to which he refers did it even cross his mind that he might have some form of British citizenship but nevertheless the expert evidence is that he has a particular and unusual category of British citizenship, he is a British overseas citizen, and I do not need to take your Honours through the pathway by which he acquired that status.

But critical to the existence of the status is that his father left Cyprus before the date of Cypriot independence.  If his father had been present in Cyprus at the date of independence he would have lost his British citizenship and become a citizen of Cyprus and there could have been no British citizenship to be passed to Senator Xenophon. 

So the relevant facts bearing on the answer to a person’s status are shown to depend not just on where the father is born, but on the relationship between that kind of fact and facts pertaining to the political situation of the country in terms of the date when it had acquired independence, or otherwise.

Again we submit, far from obvious inquiries, the Senator plainly turned his mind to the question of where he might be a citizen, made inquiries, dealt with those and nevertheless finds himself confronting the scenario that he is disqualified by reason of a category of status of citizenship under foreign laws of which he had no idea.

KIEFEL CJ:   Mr Solicitor, do I take it from what you said at the outset that you accept that Senator Xenophon has the status of a British citizen?

MR DONAGHUE:   We do not put any submissions against that state of affairs.  That is a matter in contest between the Senator and the contradictor, but the Attorney does not have any position on that.

KIEFEL CJ:   I see, thank you.

MR DONAGHUE:   Thank you, your Honour.  I should perhaps clarify that while he has the status of being a British overseas citizen as a matter of foreign law, whether that is the status of a subject or citizen for the purpose of 44(i) is not a matter I seek to enter into.

KIEFEL CJ:   It is not a matter that you will be debating.

MR DONAGHUE:   All five of the parliamentarians whose position I have just summarised, upon becoming aware of the prospect that they might be foreign citizens, promptly took steps to confirm their status and then to renounce their status, and there is no argument to the contrary put in any of these references so, in our submission, the critical question that the Court is asked to resolve ultimately turns on the question were they capable of being chosen within the meaning of 44(i) at the date of the election.  Nothing turns on the steps that were taken subsequently to renounce foreign citizenship.

Our submission in overview, your Honours, is that the question of how section 44(i) of the Constitution operates in the circumstances just summarised is not a question that is capable of being answered simply by observing that because each of those individuals had a particular status under foreign law, it necessarily follows that they are disqualified from sitting by section 44(i). The reason that we submit that the existence of the status under foreign law cannot be decisive is because this Court has held in Sykes v Cleary – the entire Court held in Sykes v Cleary – that section 44(i) does not give unqualified effect to foreign citizenship laws.

While I will take the Court later in my submissions in some detail to Sykes, by way of summary we submit that that decision supports three propositions: first, that there is what the judgments refer to as a common law rule, that whether a person is a citizen or national of a foreign state is generally to be determined according to the law of that state; second, that the Constitution does not give unqualified effect to that general common law rule; it is obviously relevant to the operation of 44(i), but the Constitution does not give unqualified effect to it; and third, in consequence of the second point, that the text of section 44(i) cannot be read literally because a person may have the status of being a subject or citizen of a foreign power but nevertheless not be disqualified by section 44(i), and we submit that necessarily follows from Sykes.

EDELMAN J:  Is that one submission or two? In other words, is the submission just that section 44(i) is not read literally because the determination of whether a person is a foreign citizen needs to be a determination of whether a person is a foreign citizen as recognised by Australian law or is there a separate submission that section 44(i), in its terms, contains some necessary implication that restricts when a person will be recognised as a foreign citizen?

MR DONAGHUE: It is both, your Honour. We will be putting and I will be developing very shortly a submission that as a matter of the construction of section 44(i), when read in light of the history of the provisions, that as a matter of construction those words “is a subject or a citizen . . . of a foreign power” do not bear their literal meaning as a matter of construction.

But we also submit as a matter of authority that, from what was decided in Sykes, there must at least be qualifications on the circumstances in which Australian law will recognise or give effect to a foreign law and that at least one of the questions for your Honours to decide in these references concerns the nature of those qualifications which, on either of the competing constructions, must exist.

EDELMAN J:  But the point that you are making about literal meaning is not negatived by your submission. In other words, section 44(i) could be given its literal meaning if the meaning of the words “foreign citizen” is to be determined according to Australian law.

MR DONAGHUE:  That is so.

EDELMAN J:  Is that the only way you put your submission or is your submission also put on the basis that there are some non‑literal qualifications that need to be read into section 44(i)?

MR DONAGHUE:  I need to qualify the answer I just gave your Honour.  Giving the provision effect as a matter of Australian law is what we say that the Court should do but the result of that is not, we submit, to give effect to the literal meaning of the section because the literal meaning of the section is unqualified in its terms.  So its meaning as a matter of Australian law is not its literal meaning is our submission.

EDELMAN J:   The section does not say anything about how the foreign law is to be determined.  The section does not say “foreign law as to be determined exclusively by the foreign law”, nor does it say “the foreign law as to be determined by Australian law”.

MR DONAGHUE:  Your Honour, I accept that that is so and there was some debate about this in Sykes, particularly between Justice Deane and Justice Gaudron, as to whether what one is doing is reading down the section or just determining the circumstances in which effect is to be given as a matter of foreign law and one can end up at the same point characterising the exercise in either of those ways.

Our submission is that ultimately what the Court is engaged in is the question of construction of section 44(i) rather down reading down of that provision and that properly construed what it refers to is a category narrower than at least is capable of being conveyed by the formal literal meaning of the words used.

Your Honours will have seen in the submissions by the contradictors, including in particular Mr Windsor, an attempt to characterise the Attorney‑General’s case as requiring the Court to depart from Sykes v Cleary and there are arguments advanced about why the Court should not reopen the decision. 

It is no part of our case to submit that the Court is required to depart from Sykes.  We do not challenge that case to the extent that that case decides the issues which we submit that it does in relation to Senator Roberts and Mr Ludlam.  Our submission is that Sykes v Cleary should be applied. But, in our submission, we do not need to seek to reopen or overrule a case that was not directed to the issue upon which five of these references turn which is the significance of, or the operation of section 44(i) with respect to a natural‑born Australian citizen who was also a dual citizen.

In relation to that category, your Honours will understand from the written submissions that our central proposition is that the status referred to is a subject or citizen of a foreign power.  In 44(i) it is a status of a particular kind being – or should be interpreted as a reference to a person who is “a subject or a citizen of a foreign power” in circumstances where that status has been either voluntarily obtained or retained. 

That is not a submission that voluntariness is a necessary part of the foreign law governing acquisition of citizenship – it may or may not be – our submission is that as a matter of Australian law it is the voluntary obtaining or retention of foreign citizenship that gives the status the character upon which section 44(i) of the Constitution bites.

KIEFEL CJ:   The voluntary obtaining that you are speaking of requires a positive act?

MR DONAGHUE:   The obtaining does, the retaining does not.  That is right. 

KIEFEL CJ:   Well, sorry, in relation to retention, there is a positive act involved in your argument, is there not – that is that you have to take steps to no longer retain it?

MR DONAGHUE:   You have to take steps to no longer retain it.  So a failure to take the steps might constitute voluntary retention of the status in a circumstance where the person has a sufficient degree of knowledge as to the existence of the status.  So if someone is told – authoritatively told – here is a QC’s opinion that shows that you are a – and I am taking that as a very clear example, I appreciate there are lines, but if it is very clear that a person is a citizen of a foreign law and they then do nothing, they can have voluntarily retained the status, on our submission.

KIEFEL CJ:   So are we concerned then on your argument with a purely objective assessment about whether or not citizenship has been sought after – foreign citizenship has been sought?

MR DONAGHUE:   No, your Honour.  There is a subject of component and a largely objective but somewhat mixed component, and I put that in that way because of the way that Sykes deals with the question of retention.  But one is concerned, on our submission, with, at the first step, a wholly subjective inquiry.  Does the person – if we are talking here just about retention of foreign citizenship – does the person know that they are a foreign citizen or have an awareness, an actual subject of awareness, of a sufficiently high prospect of foreign citizenship? 

That is the first step, wholly subjective.  Once that question is answered, then the question of whether reasonable steps are taken to get rid of that status is substantially objective but Sykes suggests that there is some subjective element to that inquiry as well for reasons I will develop.

KIEFEL CJ:   But I am more concerned with the positive act of the acquisition.

MR DONAGHUE:   Well, the positive act that the acquisition does, in our submission, purely ‑ ‑ ‑

KIEFEL CJ:   Is that purely objective?

MR DONAGHUE:   Well, no, that will require a voluntary act, in our submission, that has to be – it has to be intended by the person who acquires the citizenship.  It will be – that part of the test, we submit, will require a voluntary act which has a necessarily substantially subjective component of whether the person has done the thing to acquire the foreign citizenship.  Usually that will be applying for naturalisation, that the voluntary act that would trigger that limb of the test will not normally give rise to any difficulty, in our submission.

KIEFEL CJ:   I am just having a little difficulty understanding how there could be a subjective component in what would be a positive step towards obtaining foreign citizenship, in the sense that why you would need that on your argument?  Would not the voluntariness go with the act?

MR DONAGHUE:   That is why – I perhaps have not answered your Honour elegantly but if, for example, someone were to be registered as a foreign citizen by reason of paperwork having been completed on their behalf by someone else without their knowledge and it was lodged and resulted in an acquisition of citizenship by them, on our test that would not be a voluntarily acquisition of citizenship ‑ ‑ ‑

KIEFEL CJ:   I see.

MR DONAGHUE:   ‑ ‑ ‑ even though the person might have acquired the citizenship as a matter of foreign law.  It is that kind of scenario that I am trying to deal with.  But if someone actually fills out the forms or applies themselves, then there is no meaningful difference between the objective inquiry and whether they subjectively intended to seek the status.  Your Honours, we seek to ‑ ‑ ‑

GAGELER J: Mr Solicitor, can I just ask this question. Each of these five people, whose circumstances you have taken us to, was a sitting member or a sitting senator at the time they became aware of their foreign citizenship. Does it follow from your submission about section 44(1) that if they had not each taken steps reasonably available to them within a reasonable time to renounce their foreign citizenship that their seat would have been vacated under section 45(i) at the expiration of a reasonable time ‑ ‑ ‑

MR DONAGHUE:   That is right.

GAGELER J:   ‑ ‑ ‑ from the acquisition of knowledge?

MR DONAGHUE:   And that is what happened in each of these cases.  As I indicated earlier, no issue appears to be taken about that proposition, which is why I say that the focus of attention is on whether they were validly selected rather than whether their seat became vacant at some later point in time by reason of a failure to take those steps. 

EDELMAN J:   It is not just from the point of view of knowledge on your submission, it is from the point of sufficiently high prospect of knowledge, is it not?

MR DONAGHUE:   Of knowledge of a sufficiently high prospect.

EDELMAN J:   Yes.

MR DONAGHUE:   So it is knowledge but not knowledge of the fact; knowledge of a sufficiently high prospect.

EDELMAN J:   So if a person has knowledge of a sufficiently high prospect that he or she might be a foreign citizen but does not take reasonable steps to renounce, that person is deemed to have voluntarily retained the relevant foreign citizenship, even if that person gives firm evidence, it is believed, that he or she did not voluntarily intend to take up the foreign citizenship?

MR DONAGHUE:   Your Honour, I would not use the word “deemed”.  We submit that if the person has actual knowledge, subjective knowledge, of the sufficiently high prospect and then they shut their eyes to it, then they can fairly be described as having voluntarily retained that status.  They did not take it up, but the substantial prospect that they were a foreign citizen, as it did with all of these people, caused the taking of steps to confirm and then, quickly thereafter, to renounce. 

So it would not be enough to be able to point to evidence that a reasonable person would have thought generated a sufficiently high prospect.  There needs to be that subjective awareness of the risk, but then we submit it is fair to characterise someone who responds, once they are aware of the risk, by doing nothing as voluntarily maintaining the status they are aware there is a high prospect that they have.

BELL J:   Is the reason for the distinction that on your argument you make between natural‑born Australians and naturalised Australians purely that in the case of naturalised Australians they are always on notice of the prior allegiance to another power?

MR DONAGHUE:   That is so, your Honour.  So we are not posing a different test; we are posing a critical fact that will often have a dramatic effect on the way the test applies – the fact being the fact your Honour puts to me.  At least almost always.  One might be able to posit hypothetical cases where the person would not know, for example, someone who comes as a very young child or is adopted or something like that might not know.  But in the ordinary case, and certainly in the cases your Honours are concerned with, that fact of knowledge of the prior status will be determinate of the operation of 44(i) absent reasonable steps to renounce.

BELL J:   So one is not really concerned with the question of allegiance in what some might characterise as a real sense or a division of allegiance.  The moment one becomes aware, or perhaps a reasonable person should become aware that by some quirk of fate one holds citizenship of a foreign power, on this argument it is requisite to renounce it within a reasonable time or one is disqualified, regardless of considerations of the reality of split allegiance.

MR DONAGHUE:   Your honour, we would not accept the “or a reasonable person should have” part of the question that your Honour put to me but, in our submission, once – if the person is not aware either that they are a foreign citizen or of a significant prospect that they are, in our submission, by definition that person cannot have the split allegiance with which the section is concerned.

BELL J:   But the moment they become aware, including of any ‑ ‑ ‑

MR DONAGHUE:   Of a sizeable prospect.

BELL J:   Yes.

MR DONAGHUE:   Then there becomes the prospect of split allegiance to which the provision is directed and they need to take reasonable steps to renounce within a reasonable time or the disqualification bites.

BELL J:   So that the purpose of the disqualification, on this analysis, does take us away from the circumstances, for example, that might have applied in relation to the qualification of parliamentarians in colonial parliaments or in, for that matter, the Westminster Parliament.

MR DONAGHUE: That is so because, in effect, there is, we accept – and I need to develop the argument to get to this point – that there was a clear focus throughout the colonial provisions but that there was some modification of that position by reason of the text as actually enacted in the Constitution and that is what produces the answer that your Honour just put to me.

Can I develop the argument in support of the central submission by taking your Honours first in some detail through the historical context and background of the provision and then by coming to Sykes in particular on authority.  As I hope I have already made clear, in our submission the debate that your Honours are considering is not a debate, as the contradictors try to characterise it as a debate between a textual meaning on their side and a textual meaning on the other.  In our submission, both constructions accept the existence of qualifications and the debate is about the nature of the qualifications and the foundation of them.

In our submission, while accepting the existence of the qualifications, as the contradictors have to do because of Sykes, you get from them no explanation in the text of section 44(i) for how they get there. By contrast, in our submission, the Attorney’s submission gets to the endpoint that we advance by recognising that the words that he used in section 44(i) are words that are used in circumstances where there is a very long legislative history of the use of those words and those concepts in the context of the eligibility of people to sit in Parliament, both in the United Kingdom and throughout the British Empire. When one takes that into account the important or central role of voluntary acquisition of an association with a foreign power becomes clear.

Can I perhaps set the framework for this submission by inviting your Honours to turn to Singh v The Commonwealth (2004) 222 CLR 322? I invite your Honours to keep this case to hand for the next little while because it is a convenient way of dealing quickly with some of the early history. But, if I could ask your Honours to start at page 159 – sorry, paragraph 159, page 385 – in the joint judgment of Justices Gummow, Hayne and Heydon. Your Honours will recall, the debate in this case was about whether or not the aliens power extended to a person who was born within Australia. That was the issue that the Court was concerned with. In analysing that question, their Honours say in paragraph 159 that in examining the:

question of construction, to identify the meaning conveyed, at the time of Federation, by the words used in the Constitution is more than a matter of historical interest.  It is an essential step in the task of construction.

Their Honours point out that that is not to say one looks for the subjective intention of the framers, which we accept.  Then in the last six lines:

That task of construction cannot be undertaken without knowing what particular constitutional expressions meant, and how words were used, at the time of Federation.  But the task does not end with the results of that inquiry ‑

which we also accept as I just foreshadowed to Justice Bell.  Chief Justice Gleeson at paragraph 12 in the judgment at 332 observed:

Meaning is always influenced, and sometimes controlled, by context.

Then in the last six lines – seven lines:

the context . . . includes the whole of the instrument, its nature and purpose, the time when it was written and came into legal effect, other facts and circumstances, including the state of the law, within the knowledge or contemplation of the framers and legislators who prepared the Constitution or secured its enactment –

which is much of the kind of material I am about to take your Honours through.  To the same effect, Justice Callinan at page 423, paragraph 293, reading from the third sentence in the paragraph:

There is no doubt that the common law and the founders’ understanding of it heavily informed the language of the Constitution.  So too of course did history and contemporary perceptions of mischiefs to be dealt with and objectives to be attained.  The Court is not only, in my opinion, entitled, but also obliged, to have regard to the Convention Debates when, as is often the case, recourse to them is relevant and informative.

So, in our submission, Singh provides very clear support for the important contextual relevance of the legal understanding of terms used as at the time of Federation and the state of the law familiar to and in the contemplation of the framers as the Constitution was being drafted.

I am going to take your Honours through a bundle which I hope your Honours have, a bound bundle that is headed Bundle of Historical Material of the Commonwealth Attorney‑General, but if you could keep Singh to hand, I would be grateful.  One can, of course, in any examination of the history, start in different places but in my submission a convenient place to start here is behind tab 15 in that bundle, which is the Act of Settlement 1700. 

If your Honours go to the second page behind that tab and then count four paragraphs up from the bottom of the page you will see ‑ this is all within section III of the Act of Settlement ‑ a paragraph that beings with the words:

That after the said Limitation shall take Effect as aforesaid no Person born out of the Kingdoms of England Scotland or Ireland or the Dominions thereunto belonging (although he be naturalized or made a Denizen (except such as [are] born of English Parents) shall be capable ‑

of sitting in any of a number of places, including:

a Member of either House of Parliament ‑

Now, at that time, just as a matter of history, naturalisation could occur only by reason of a special Act of Parliament.  Denizens or denization was a status achieved by an exercise of the Royal prerogative by a grant of letters patent which gave a status that was described by Blackstone as being somewhere in the middle of being an alien and a natural‑born subject.

What section III of the Act of Settlement did was extend an existing common law rule against aliens sitting in the Parliament to have the effect that not only could aliens not sit by reason of the common law but even a naturalised person or a denizen also could not sit by reason of the operation of that provision, so that it introduced into English law a distinction concerning capacity to sit in the Parliament that was based on the place where a person was born.  A person who was not born within the kingdom could not sit in the Parliament, even if they naturalised as a British subject by special Act of Parliament.

The “out of the Kingdom” references there pick up the common law as it had developed and had been restated in Calvin’s Case in 1609, the effect of which was that a British subject was a person who was born within the dominions of the Crown.  Rather than take your Honours in any detail through all of that history, in Singh you will find it usefully summarised.  If your Honours turn to paragraph 169 in the judgment of the plurality, 169 defines some terms:

Dicey defined “British subject” . . . divided British subjects into “natural‑born” British subjects and “naturalised” British subjects ‑

There is then, in the few paragraphs that follow, a discussion of Calvin’s Case, which is the leading authority identifying the circumstances in which someone was a natural‑born British subject.  And as their Honours point out in paragraph 170, at that time the common law viewed there being a choice between two mutually exclusive alternatives ‑ one was either an alien or a subject.

Importantly for what follows, the second point that their Honours make in paragraph 170 is that the case proceeded on a view of natural law that the position of someone as a British subject was unable to be altered.  So, if your Honours look at the emphasised part of the passage at the end:

ligeance and obedience of the subject to the sovereign is due by the law of nature; ergo it cannot be altered.

That is a reflection of what came to be called the indelibility of British subject status, so that the subject him or herself could not do anything to lose status as a British subject, it remained in place.

From that common law starting point, there was then statutory modification, which is adequately summarised for present purposes by Justice McHugh in paragraph 82 of his Honour’s judgment on page 359.  But in summary terms, from as early as 1351 there was some statutory capacity for British parents to pass their status as British subjects to their children.  Under that very early Act the critical thing was that both parents were British subjects, but over time that position was extended.  It was extended by the statutes referred to by Justice McHugh in paragraph 82, first in 1730 to the children of a British father, and then in 1772 to the grandchildren of a British father.

So that it became possible from that relatively early time to be a British subject either by reason of birth within the territory or birth to a British father.  If a British subject was in that second category, so that they acquired their subjecthood by descent, during the 18th century when those provisions were enacted, that would commonly have had the consequence that the person was a dual national.  They were a British subject by reason of the descent rule in the statute, but they were likely also to have been, because they were born outside of the territory, a subject of the place where they were born because during the 18th century that was the prevailing rule everywhere.

So there was a concept of dual citizenship from a very early point in time, but it became more common – and again this is traced in Singh if your Honours go back to 178 – dual nationality became more of an issue with the emergence from the beginning of the 19th century, first in France and then spreading throughout Europe, of jus sanguinis citizenship rules, starting with the Napeoleonic Code in 1803 described in paragraph 178 of Singh and in the paragraphs that follow.  So that, in 179 it is pointed out that:

by the turn of the twentieth century . . . the rule of . . . descent or blood had become the leading principle in Europe.

Supplanting the older feudal ideas connecting with territory in Europe but not of course in Britain, and that meant, as was recognised in 1869 by the Royal Commission discussed in paragraph 180, that:

Dual or double allegiance is not a phenomenon only of the twentieth century.

It was possible to be a dual citizen in the way I described a moment ago by being born outside the British Empire, a subject by descent under the statutory rules and a subject by reason of place of birth if it was a jus soli rule in the territory where the person was born, but also if born within Britain someone would become a British subject by reason of being born within the territory, but if their parents were French, for example, they would be born by reason of the descent rules in France as a French citizen as well.

So at least for a couple of hundred years there has been no difficulty with the conclusion that the differing citizenship rules of different places would produce persons who had two nationalities.  The important question then for your Honours is what ramifications did that have, if any, for the capacity of a person to sit in Parliament, once one recognises that the status was easily acquired and potentially widespread?

The British Parliament itself did nothing to affect the capacity of dual citizens to sit until very late in the piece.  The only relevant rule was the Act of Settlement rule that I have taken your Honours to and that rule had no effect on the capacity of the dual citizen to sit in the British Parliament, as long as the person had not acquired their British citizenship by naturalisation, in which case they had a problem.  They could sit in the Parliament if, for example, born within Britain to French parents, no difficulty sitting in that situation.

So there did not appear to be a concern at that time that citizenship acquired by descent gave rise to split allegiance problems that needed disqualification.  Throughout the Empire, though, there did become rules to deal with a certain limited subset of persons who acquired dual citizenship and these emerged first in Canada, and your Honours will see a sufficient example at tab 29 in the historical bundle, which is an Act called the Union Act 1840 which reunited the provinces of upper and lower Canada. 

To use this Act just as an early example, if your Honours turn to the second page in the print and go towards the end of section IV, so about point 8 of the way down the page - this is in a section dealing with the marginal note “Qualification of Legislative Councillors”, the qualifications were:

that no Person shall be summoned to the said Legislative Council . . . who shall not be of the full Age of Twenty one Years, and a natural‑born Subject of Her Majesty, or a Subject of Her Majesty naturalised –

So the Act of Settlement rule was not shared in the Empire, and that is the same in Australia.  You needed to be a natural‑born subject, but then in section VII, there was provision made about – if your Honours look about seven lines down the page, that a person who took an oath or made a:

Declaration or Acknowledgment of Allegiance, Obedience, or Adherence to any Foreign Prince or Power, or shall do, concur in, or adopt any Act whereby he may become a Subject or Citizen of any Foreign State or Power, or whereby he may become entitled to the Rights, Privileges, or Immunities of a Subject or Citizen of any Foreign State or Power –

and the consequence was the seat shall become vacant. Now, obviously your Honours are well familiar with that language but that language is remarkably similar to the language that ultimately found its way into section 41 of our Constitution. But at that point in time the provision was a provision that operated only to vacate the seat of a person who, by taking an oath or by doing or adopting an act, some positive action acquired foreign citizenship. So the target is not being a dual citizen, it is actively seeking out foreign citizenship. That is what was identified as the thing that was inconsistent with remaining a member of the legislature.

GAGELER J:   Mr Solicitor, was this the origin of this language?

MR DONAGHUE:   It appears to have been, your Honour.  There was an earlier Act - that we have given your Honours - in 1791 - which is behind tab 28.  In tab 28, if your Honour goes to the third page and looks halfway down the page, you will see the origin of what people have referred to in this case as the first limb of 44(1), the taking of the oath of allegiance or obedience to any foreign prince or power, but you do not have the second component about the doing, concurring or adopting an act by which someone becomes a subject or citizen. 

That second limb appears for the first time in the 1840 Act in Canada, and it then also finds its way into the British North America Act 1867 in the same form.  Your Honours have that behind tab 31, and the relevant section is section 31.  I might take your Honours to that quickly.  If you turn to tab 30 and look at section 31, you see in form a provision even closer to our 44(1), in section 31(2):

The Place of a Senator shall become vacant . . . 

(2)If he takes an Oath or makes a Declaration or Acknowledgment of Allegiance, Obedience, or Adherence to a Foreign Power, or does an Act whereby he becomes a Subject or Citizen, or entitled to the Rights or Privileges of a Subject or Citizen -

So the legislative model from the Union Act 1840 spreads to New Zealand in 1852.  I will not take your Honours to it but it is the same model and it is behind tab 30 if your Honours want to see it, the relevant sections being 33 and 36.  But it also spreads, more importantly for our purposes, to the Australian colonies in the mid‑1850s. 

So if your Honours turn to tab 21 you see the earliest form in Australia of the provision in an Act dealing with Van Diemen’s Land and you see in section VII of that Act the qualification section, “natural‑born or naturalised subject”, and then the provision by which a seat becomes vacant, in section XIII – the Legislative Councillor’s seat becomes vacant if – and there are a number of disqualifications, some of which also found their way into 44, including, for example, as you see, “any felony or infamous crime”.  So that was part of the impetus of 44(2), but relevantly there, for our purposes, the seat becomes vacant if the person:

shall take any oath or make any declaration or act of acknowledgment of allegiance or adherence to any Foreign Prince or Power or shall do concur in or adopt –

the same language:

any act whereby he may become a subject or citizen of any Foreign State or Power -

The same thing, the next year in New South Wales, which is behind tab 22, relevantly section 5 is the provision and it uses the same language.  In Victoria, behind tab 23, there was a slight variation and in that Act, in section XI, you see the qualification section, again “natural‑born Subject of the Queen”.

There is a merging in section XI of qualification and disqualification criteria.  So you see at the end of section XI there that the convictions of a felony or infamous crime are dealt with as part of the qualifications rather than in a disqualification section.  We submit that that is an example of the fact that it simply is a matter of drafting. 

You can achieve the same result by putting something in a qualification or a disqualification section and there is no particular legal significance as to where the provision goes.  Our friends try to make something of the fact that there is a distinction between eligibility, disqualification and vacancy.  I will talk more about disqualification and vacancy shortly.  But the difference is, we submit, merely one of timeframe rather than of kind.  The disqualification section in the Victorian Act is in section XXIV, at the bottom of the second‑last page:

take any Oath or make any Declaration or Acknowledgement of Allegiance, Obedience, or Adherence to any Foreign Prince or Power -

or instead of the “concur in or adopt” language it just says:

adopt any Act whereby he may become a Subject or Citizen -

One then has the same provisions in mainly the same form as the Tasmanian and New South Wales provisions; in Queensland, which is found behind tab 25, relevantly section 23; in South Australia, which is behind tab 24, relevantly section 12; and in Western Australia there was a Constitution both in 1890 and in 1899. They both contain the same provisions. In the 1890 Constitution, which is behind tab 26, it is section 29 and in the 1899 Constitution behind tab 27 it is section 38.

So that the position in all of the Australian colonies, from the mid‑1850s through to provisions that were being made in the colonies in Western Australia in the 1890s at the same time as the constitutional conventions were taking place, was that there was a common form disqualification which said nothing about disqualifying dual citizens but where the target of the people who were to be disqualified for reason of a concern relating to split allegiance were people who by an Act made an oath or declaration of acknowledgement or did something in order to make themselves a subject or citizen of a foreign power. 

KIEFEL CJ:   They seem to be suggesting that it is in breach of a constitutional principle of reasonableness.

MR BENNETT:   Yes, your Honour.

KIEFEL CJ:   Quite what that means, we do not know, but because of these factors about a party having foisted - citizenship having been foisted upon them.

MR BENNETT:   Yes.  A lot of the factors they refer to are very reminiscent of the arguments being put to your Honours.

KIEFEL CJ:   Yes.

MR BENNETT:   What they show is that there is a strong view amongst Italian lawyers and the only view being put to your Honours that this just does not apply.  The next thing I should deal with very briefly is the document signed by Maria Canavan, Senator Canavan’s mother, in 2006.  That document is irrelevant, we would submit, under Italian law and under our constitutional law and no one suggests otherwise.  The evidence about it appears at page 270 of volume 2.

EDELMAN J:   It may have some relevance on this argument, might it not, because it may then be evidence of an administrative step that needed to have been taken by the Senator’s mother in order to activate foreign citizenship in line with the opinion on 323?

MR BENNETT:   But the earlier part of the opinion, as I will show you in a moment, makes it clear that the procedure that was followed by the Italian Consulate and this document has no effect whatsoever on citizenship.  They expressly say that.  First let me just show your Honour the background facts.  Page 270, Senator Canavan says that:

Before 2006, it had never occurred to me that my siblings or I might be Italian citizens or might be eligible to become Italian citizens on the basis of my grandparents’ Italian citizenship.  No one had [ever] suggested anything of the kind to me.  As far as I was concerned, my siblings and I were only Australian citizens, as we had never been to Italy and had not been born there, and both our parents had been born in this country.

Sometime in 2006, however, my mother informed me that we could be eligible to obtain Italian Citizenship, based on her parents’ citizenship.  She asked my brother and me whether we also wished to become Italian citizens.  I do not recall exactly how my mother said that she had come by this information, but I think that her siblings had been doing some research and thought it might be possible.  I believe she had been planning her first trip to Italy and Europe.

My mother gave me certain documents.  I understood these to be the necessary paperwork I would need to complete and lodge with the Italian consulate . . . if I wished to take up Italian citizenship.  I did not believe that I was an Italian citizen or could be made one without signing the documents and lodging them.

I considered the matter and informed my mother that I did not wish to become a dual citizen.  At the time, I was living and working in Canberra for the Productivity Commission, and was a recent father of two.  I had no desire to live and work in Italy or the EU.  So I did not complete the documents my mother had given me.

Your Honours will see those in a moment:

I never took any steps to complete the documents or submit them to any Italian diplomatic post or government agency. 

He then exhibits them.  The document his mother signed appears at page 297 and following.  Your Honours will see it does not purport to be an election to take up citizenship or anything of the kind.  It merely purports to be a registration of the person at a local consulate.  It says at the top of page 297:

ALL ITALIAN CITIZENS RESIDING ABROAD MUST REGISTER IN THE A.I.R.E. –

That is the registry:

IN ORDER TO ACCESS CONSULAR SERVICES AND THEREFORE IT IS VERY IMPORTANT THAT YOU COMPLETE THIS FORM AND RETURN IT TO:
ITALIAN CONSULTATE –

in Brisbane.  It then is described as:

(FORM FOR REGISTRATION IN REGISTER OF ITALIANS RESIDENT ABROAD -

The form goes on.  It contains particulars of her.  On page 299, it asks for information and it says:

(INFORMATION ABOUT MARRIED CHILDREN OR WHO DO NOT RESIDE WITH YOU)

There she has filled out my client’s details.  The document, as I say, does not purport to be an application for citizenship and only registration and it only purports to be that on her behalf.  It does not purport to be an application on behalf of her children.  She is merely asked who they are and she provides that information.  

Now, if your Honours go back to the expert advice, your Honours will see that the form is discussed in some detail.  On page 319, the second‑last paragraph they say:

In our case, on the basis of the documents in our possession, it seems that the mother of Senator Canavan applied to register to the AIRE only in her own interest, attaching to the application request, as required by the forms given by the consulate, the personal data and the information related to her family members –

That, as I have shown your Honours, is a correct description of the form.

We may only infer therefore that the registration with AIRE of the children of Mrs. Canavan happened automatically, at the initiative of the local consulate.  Based on the AIRE registration procedure described above and the documents made available and filed by the mother with the Italian consulate of Brisbane, this is clearly a possibility; they noted –

they being the consulate:

the mother’s Italian citizenship and just assumed the same for the children.

They go on to talk about the procedures and then on the next page they say – the second paragraph on 320:

Based on our assumptions Senator Canavan certainly never applied for Italian citizenship and it does not appear that Senator Canavan’s mother initiated any procedure aimed at obtaining a declaration of Italian citizenship for her children.  We also do not know if the investigation and controls referred to in the Circolare in order to verify that the chain of citizenship is without discontinuance have ever been carried out.  We only have evidence of her application to be registered with AIRE.

In the light of the above, despite the name “A.I.R.E. – Certificato di Cittadinanza”, the AIRE Certificate issued by the mayor of the municipality . . . should not per se be considered a recognition of Italian citizenship:  the certificate in fact appears to merely assume Italian citizenship, as a prerequisite for Senator Canavan’s registration with AIRE.

Based on the Circolare, only the interested party may apply for citizenship . . . Considering the importance of the application, it is not clear whether a proxy may actually be appointed -

They go on to make that clearer:

Again:  provided the declaratory nature of any registration . . . which do not add any legal value to a pre-existing citizenship status . . .  it appears that no application for the recognition of the Italian citizenship has been submitted in the interest of Senator Canavan.  The Senator’s mother only requested, for herself only, the registration with AIRE, which seems to have happened automatically by the initiative of the office also with regard to her children.  On the basis of the above mentioned documents, it appears that no application for the recognition of the Italian citizenship of Senator Canavan has been submitted . . . neither by the mother, nor by him.

So, it is quite clear that as far as Italian law is concerned, these documents and registration are irrelevant.  Now, it seems, however, that the Italian Consulate in Brisbane relied on that registration in reply to Senator Canavan’s request for confirmation of his status.  If your Honours go to page 296 – I will come back to that later – but on page 296, there is a letter from the Consulate in Brisbane:

Dear Minister,

I am writing with reference to your recent letter requesting a confirmation on your lack of Italian citizenship status.

So that is the context of the letter.  He then says:

After a search on the Italian National database . . . registered with Italian Consular Offices in Australia, I confirm that the name Matthew James Canavan is registered with the Italian Consulate in Brisbane.

The registration was requested by your mother for yourself and for your brother and sister as well –

Well, we know that is not true, looking at the form properly:

as shown by the request and the printing of your personal data . . . The registration was received by the Municipality of Lozzo di Cadore . . . on 18/01/2007 . . . 

Moreover, your name appears in the list of Italians eligible to vote abroad . . . The relevant document, in occasion of elections and referendums were sent to  your address listed in the document.

He says he never received that and of course he probably would not.  That letter is why we are here.  It does not, of course, say that Senator Canavan is an Italian citizen but it does quote this register which, as your Honours know from the expert evidence, has no significance in relation to making you a citizen and your Honours see what the form says.  Now, as I say, no one challenges any of that but in case your Honours were concerned about that, that is the problem of what has happened.

So the result of all that is the Court should not be satisfied that he is or ever has been an Italian citizen and it is relevant that the putative application of foreign law is uncertain and arguably invalid because of unreasonableness under the foreign Constitution and because it involves retrospectivity. One could hardly have a stronger case for saying this is not a case where we should apply foreign law for the purposes of section 44

before one gets to the various categories in which that section does not apply.

So, I come to section 44. As I have said, we adopt the submissions that have been put and the detailed historical analysis in our submissions to the Court. The purpose of the relevant part of section 44 is not in doubt. It is to avoid divided loyalty. It is this purpose which gives rise to the various exceptions referred to in Sykes v Cleary.  Obviously, as my learned friend, Mr Walker, has pointed out, there can be no divided loyalty if one does not know subjectively of one’s foreign citizenship. 

The decision in Sykes v Cleary itself contains strong suggestions that if one does not know of one’s foreign citizenship, the content of the obligation to renounce is zero.  One gets that in the passages my learned friend has taken your Honours to – I will not take your Honours back to them – but it is the plurality at page 108, point 2; Justice Dawson at 131, point 4 and Justice Gaudron at 140, point 1.  Those passages, as I say, make it clear that you cannot have any obligation to renounce which you neglect to do if you do not know of the foreign citizenship. 

In the case of Senator Canavan, I have taken your Honours to the passages in his affidavit as to his belief.  When he ascertained that he might be an Italian citizen – when he got the letter from Mr Gentile that I have just taken your Honours to, he immediately took the appropriate steps to renounce it.

But his case illustrates very clearly the difficulty for a prospective member in making the relevant inquiry.  The question whether one is a foreign citizen under foreign law may not be a simple one.  It may involve, as I have said, whether an ancestor became a naturalised Australian before or after the birth of the next ancestor down.  It may not be capable of definite resolution because of uncertainty in the foreign law, and just to add Pelion on Ossa there is a further complexity caused in this case by what happened when Senator Canavan’s maternal grandmother applied to become an Australian citizen, and did become one. 

KIEFEL CJ:   That might be a convenient time, Mr Bennett.

MR BENNETT:   Certainly, your Honour.

KIEFEL CJ:   The Court will adjourn until 9.45 am tomorrow for pronouncement of orders and otherwise until 10.15 am.

AT 4.16 PM THE MATTER WAS ADJOURNED