Dummies Guide update: Keeping the High Court busy

The Dual Citizenship Case

The first response from some commentators (including on Melbourne radio station 3AW this morning) has been to criticise the delay in hearing the case, which has been listed for 3 days of argument on October 10th to 12th.

However, there are three excellent reasons for hearing the case in October:

1. Getting Evidence:

The various parties – the Commonwealth and the various MPs – need to obtain expert evidence about what the citizenship laws are in various other countries, and the potential impacts. This takes time and is already being rushed to completion. They also need time to prepare their own evidence about what they knew, when they knew it, and what they did about their citizenship.

Why expert evidence? The submissions before Chief Justice Susan Kiefel indicated a number of problems. For example: Senator Canavan’s issue is his Italian dual citizenship.

Canavan was born in Queensland, to two Queensland parents. The link is his mother’s parents, who became naturalised Australian citizens. His barrister advised the Court that at the time of his birth there was no problem – he was only Australian. However, because of changes to Italian law in 1983 (three years after his birth) he was later deemed to hold citizenship in Italy by descent, through his grandparents.

His legal team claims that Canavan was made an Italian citizen retrospectively – and whether this is something that can be done under Italian law is in doubt.

2. There’s more to come

5 MPs have been referred to the High Court – but there is a very high chance that another two Senators will also be referred: Coalition Senator Fiona Nash, and Nick Xenophon. They notified the Senate so late on the last day of sittings that the Senate did not have time to refer them to the High Court.

By the time the Senate resumes sittings on 4 September 2017, and refers them, they will only have a few weeks to prepare their case.

3. Finding a Room

As I mentioned in my last article, the Canberra building of the High Court is out of action at the moment – the nearly 40 year-old-air conditioning system is being replaced. Finding a Court room that can fit 16 barristers and 18 solicitors, as well as the full 7-member High Court bench, is a challenge. By waiting an extra three weeks the repairs will be complete and the Court can use the custom-built High Courtroom 1, which can fit everyone involved.

So what is the government's position?

The Solicitor-General of the Commonwealth put forward their current argument:

  1. If you didn’t know, you’re not disqualified - Senator Canavan, Ex-Senator Waters and Barnaby Joyce were not aware of having been dual citizens, and that they did not have knowledge that they might be. Therefore, they couldn’t have taken any steps to fix something they didn’t know about. They should not be disqualified under Section 44(i);

  2. If you did know and didn’t fix it, you’re disqualified. Ex-Senator Ludlam only became an Australian citizen when he was 19 after emigrating from New Zealand. For the same reasons as applied to Bill Kardamitsis in the Sykes v Cleary case, he was required to take active steps because he reasonably knew about his second citizenship. By failing to do so, he is disqualified.

  3. If you did know, and we don’t know what you did to fix it, you might be disqualified. One Nation Senator Malcolm Roberts’ case is more convoluted and his legal team have not conceded some of the critical facts. However, the Solicitor-General told the Court:

“it depends exactly what the evidence ends up being in Senator Roberts’ case. So he was born … in India in 1955 and there is … an application for Australian citizenship made by Mr Roberts when he was 19 years old which says that he was a citizen of the United Kingdom and colonies at the time. Now, if that fact is correct, then he falls into the category of a person who knew at one point in the time that he was a foreign citizen and, therefore, the answer to the question, or to the reference, is a Sykes v Cleary analysis; did he take all reasonable steps...

…we do not know what steps he took and when he took them in order to renounce the foreign citizenship.” [emphasis added]

One-Sided Arguments

One other major issue is "contradictors." Our legal system is an adversarial one: there should be two parties to make arguments – one for, one against – so that the Court can hear all sides before making its decision.

Where the government is not challenging a candidate, the Commonwealth has offered to select a senior Queen's Counsel to provide, at least, arguments that oppose their own. Equally, ex-Senator Ludlam is (at the moment) not disputing that he was disqualified, with which the Commonwealth agrees.

In regards to two of the MPs, an opponent has appeared. For Senator Malcolm Roberts, who claims to be a legitimately elected Senator, his position is likely to be opposed by the Commonwealth. However, there is the matter of Barnaby Joyce...

The legal Lazarus

The more politically interesting one is the decision of the Court to allow Tony Windsor, the former Nationals and Independent MP who was defeated by Barnaby Joyce, to have standing in the case against Joyce. Windsor’s barrister made clear that they would be seeking evidence from Joyce, and there remains the chance that Barnaby Joyce may be called to give evidence at Court.

In particular, one area Windsor’s legal team are focusing on is: should Barnaby Joyce have actually made enquiries to find out about his citizenship, given all the documents and checks that a candidate has to go through? Was his lack of knowledge reasonable?

That said: this is the High Court of Australia, which is normally extremely reluctant to allow fresh evidence. As Australia’s highest court of appeal it does not normally hear from witnesses, instead receiving their testimony from the courts below. But as occurred with the reference of Senator Day in recent times, it can and will allow cross-examination if necessary.

The Postal Vote

As is well known, the same-sex postal vote is going to cost the Australian government around $120million. The argument before the High Court is: shouldn’t parliament have to approve that kind of spending?

Under our system of checks and balances there are “appropriations bills”: the authority from parliament that allows the government to spend money. The government in power must give an indication of what they are spending the money on, before parliament authorises it. However, past High Court cases have ruled that this can be a very broad indication, and that the government does not have to be overly precise in saying what the funds are being used for.

The applicants – Denison independent MP Andrew Wilkie, Greens Senator Janet Rice, Australian Marriage Equality and others – argue that some explanation from the government about the purpose of the appropriation is needed before they are authorised to spend the money. They argue that in this case, there was none before the Minister for Finance transferred $120m to the Australian Bureau of Statistics to run the postal vote.

The Applicants are alleging that the government has taken $120m and spent it without authorisation, and that an injunction should issue to stop the government using these funds: and therefore, stop the postal vote.

The case also revolves around a law which enables a Finance Minister to make payments where there are unforeseen or urgent expenses. The Applicants challenge this in two ways: firstly, that the law itself, bypassing parliament and authorising payments in this way, is unconstitutional. However, even if the law is valid, they also argue that a vote on same-sex marriage had been foreseen for many months, so the Finance Minister can't rely on this power as a way of avoiding parliament and having to put it to a vote.

This is only a very brief summary - the arguments of the Applicants are legally thick and run for many pages, and are available online at the High Court’s website. The Commonwealth's reply will be filed in coming days and haven't been posted at the time of writing.

The matter is listed for argument in Melbourne before the full bench on 5 September 2017.

Joseph Petersen is a barrister and solicitor at Petersen Legal in northern Tasmania. This article is not intended to constitute legal advice and is provided for information only.