Liberal National Party Senator Matt Canavan

You could’ve knocked me down with a feather when it was revealed that Matt Canavan, the coal-loving and abortion-hating, quintessential boot-clad National Party MP and cabinet minister, is in fact half-Eyetalian. If we could actually return Australia to the Menzies era, as much of the Coalition dreamily desires, we’d be obliged to call poor Matty a “wog”.

Canavan’s is the biggest scalp yet claimed by the rampaging section 44(i) of the Australian constitution. Having already taken down two Greens senators — Scott Ludlam and Larissa Waters — it continues to circle Parliament like a rabid dog with a keen sense of fun.

Canavan has stood down from the ministry but won’t resign, unlike Ludlum and Waters. Instead, he’s relying on the assurance of the eminent legal scholar George Brandis, who is quite sure that Canavan’s defence — that his mum did it — will stand up. So, it’s all eyes to the High Court, which will decide whether Canavan has been violating the constitution or not.

The High Court has only seriously addressed s44(i) once before, and how it handled it then makes the task of guessing Canavan’s fate rather less straightforward than George is suggesting.

The main problem is the shitty drafting of the provision. I won’t go into the whole thing, but the relevant words on which this case will hang are these:

“Any person who … is a subject or a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”

Now, the obvious thing to do, you might think, and the High Court would usually agree, would be to give those words their literal meaning since they are palpably clear. On that basis, all we need to know is that an MP is currently a citizen of another country, whether or not they’re also an Australian citizen. If they are, regardless of the circumstances of how they acquired that foreign citizenship, then they are ineligible and that’s the end of it.

If, as we’re being told, Canavan’s mum fronted up at the Italian consulate a decade ago and, without telling him, filled in a form on his behalf applying for Italian citizenship on the basis of his descent, and thus he became an Italian citizen, then game over. Makes no difference that this is all news to him.

But there’s a wrinkle. The High Court, usually a stickler for not messing around with the clear language of lawmakers, has considered this very question once before and decided that the words in s44(i) don’t mean quite exactly what they say.

[Section 44 claims Matt Canavan … but via the High Court?]

The case was Sykes v Cleary in 1992. Phil Cleary, the footy legend, had been elected but his eligibility was successfully challenged on the basis that he was a public servant (a separate ground of invalidity). The second- and third-place getters in the election, John Delacretaz and Bill Kardamitsis, were also challenged on the basis that they held dual citizenships — of Switzerland and Greece, respectively.

Each of these gentlemen had been born overseas and therefore acquired his foreign citizenship by birth. Each had later become an Australian citizen and sworn the oath of allegiance, which at that time included a formal renunciation of foreign allegiances. However, neither had ever taken formal steps to renounce his foreign citizenship.

The court was troubled by the strict wording of s44(i). Acknowledging that it does read plainly, the judges pointed out that that interpretation could have some pretty bizarre results. At one extreme, if a foreign country decided just for fun to unilaterally confer its citizenship on every member of Australia’s Parliament, they’d all instantly become ineligible to continue as MPs.

Good point. To avoid silliness, the court took the unusual step of deciding that the words needed to be “read down”. That’s polite judge-talk for acknowledging that the drafting was so bad it had to be ignored. 

Actually, reading down means putting more words in. The solution the court came up with was to say that s44(i) will only disqualify an MP who turns out to be a dual citizen if they have not “taken reasonable steps to renounce” the foreign citizenship.

Applying that to the case, the majority found that both Switzerland and Greece had procedures available for seeking renunciation. Because Delacretaz and Kardamitsis had not taken any steps to invoke these procedures, they weren’t eligible for the get-out clause the court had inserted. So, they were disqualified.

The problem that courts cause when they try their hand at legislative drafting, no matter how well intended or (as in this case) necessary, is that it’s really hard to guess how they’ll then deal with new factual situations that they weren’t contemplating when they fixed the first problem.

[Greens shock: Scott Ludlam resigns over NZ citizenship]

Which brings us to the present pickle. The situations of Ludlam and Waters appear straightforward. They are foreign citizens by birth, and have never taken steps to renounce those citizenships. Their ineligibility seems beyond doubt, assuming the High Court has no appetite for changing its interpretation.

Canavan is a different kettle of fish, however, and there isn’t much in what the High Court said in the Cleary case that should give him comfort. In fact, there’s one thing it did say, which I think might cause him a problem.

Much is being said about the fact that, on Canavan’s assertions, he knew nothing about his acquisition of foreign citizenship, didn’t want it and didn’t ask for it. Assume that that’s all correct, and that nevertheless he is, under Italian law, now an Italian citizen. (If there were irregularities in the process, then he may not be, which would obviate the whole s44(i) concern anyway).

However, Ludlam and Waters didn’t know they were foreign citizens either. They both, wrongly but innocently, believed they weren’t. More importantly, the same boat includes at least Kardamitsis and presumably Delacretaz too.

The High Court recounted that, until the court action was commenced, Kardamitsis did not know that he might still have Greek citizenship nor that there were procedures by which he could renounce it. He was completely ignorant of his dual citizenship, having assumed that his naturalisation as an Australian citizen had ended it.

[Another Green falls by the wayside as Larissa Waters discovers Canadian citizenship]

However, the court found against Kardamitsis solely because he had not taken reasonable steps to renounce his Greek citizenship, even though he had no idea that he needed to do so or what those steps were. That is to say, as the legal maxim goes, ignorance is no excuse.

Which definitely fixes Ludlam’s and Waters’ caboose, but what about Canavan? Unlike the others, he was an Australian citizen first. But is that better or worse? His foreign citizenship isn’t an accident of birth, it’s the consequence of a deliberate choice. That may have been his mum’s choice, but it’s not that easy to identify a substantive or moral distinction between his ignorance and that of Kardamitsis. They’re equally “innocent” victims of the intricacies of international law.

The Cleary principle really doesn’t help here. The strict words of s44(i) remain, qualified so far only by the extra words the court inserted which give an out to dual citizens who have taken reasonable steps to renounce. Canavan has taken no such steps. The question the High Court will now have to consider is whether it needs to put even more words into the section to deal with a situation where citizenship has been acquired, not through the unilateral act of a foreign state, but through the meddling of a well-meaning third party. And whether, in that scenario, ignorance is, in fact, an excuse.

When I put it that way, it looks a bit of a stretch. I’m not at all sure this is going to go as Matteo would prefer.

As to whether s44(i) should be amended by referendum, well yes, obviously. It’s a mess.