Don’t let Constitution be used as weapon, court told

The Constitution could be used as a political weapon to take down opponents, the federal government has warned.

The Constitution will be used as a political weapon to take down ­opponents if the High Court ­accepts the “hardline” dual citizenship case against Deputy Prime Minister Barnaby Joyce, the federal government has warned. Picture: AAP

The Constitution will be used as a political weapon to take down ­opponents if the High Court ­accepts the “hardline” dual citizenship case against Deputy Prime Minister Barnaby Joyce, the federal government has warned.

After a three-day hearing for the “citizenship seven”, the Turnbull government hopes for swift delivery of the court’s findings on Mr Joyce, who will head to a by-election in his NSW electorate of New England if he is found ineligible to sit in parliament.

Malcolm Turnbull needs a ­result by November 10 to hold a 33-day by-election campaign ­before Christmas, during which time his one-seat majority in the lower house would be lost.

Chief Justice Susan Kiefel yesterday declared it “hardly necessary” to say the court was aware of the need to give its answers as soon as possible, but acknowledged it was “not always possible for the court to do so immediately”.

READ MORE: Drawing the line in citizenship case is the hard part for judges

After a forceful argument from Mr Joyce’s political rival Tony Windsor that the Deputy Prime Minister should be disqualified because he held an ­allegiance to a foreign power, ­Solicitor-General Stephen Donaghue QC, representing Attorney-General George Brandis, tried to salvage the Nationals leader’s political career.

Dr Donaghue said any person who had no “actual knowledge” of their connection with a foreign state could not be said to hold a split allegiance or fall foul of section 44 of the Constitution, which deems those who are a “subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power” incapable of sitting in parliament.

“While it would be possible to have a very hardline approach of the kind that is being urged (by the contradictor), that hardline ­approach goes well beyond any identified constitutional purpose for the operation of 44(i),” Dr Donaghue said.

“(It) has the consequence that a potentially very significant number of Australian citizens are disqualified or at least contingently disqualified from a capacity to sit in the commonwealth parliament.

“There is, on the contradictor’s case, a somewhat perverse incentive for people who have knowledge about a candidate’s citizenship to withhold that knowledge until after they have been elected because at that point they cannot do anything about it.

“So it does not encourage a swift resolution of these matters. It rather lends itself to section 44 being used as a political weapon in a way that is quite far removed from the constitutional purpose of the provision.”

Mr Joyce, Nationals deputy leader Fiona Nash, Nationals senator Matthew Canavan and independent senator Nick Xenophon have discovered they have foreign citizenship by descent of a parent, but their lawyers say they acquired it involuntarily and unknowingly.

In evidence that frustrated the judges, Robert Newlinds SC, appearing for One Nation’s Malcolm Roberts, claimed his client had “exactly the same” knowledge about his citizenship as the Nationals leadership team but had the “wit” to recognise he might be a British citizen.

Mr Newlinds lashed Senator Brandis’s argument that there was a clear distinction between ­“natural-born” citizens and those born overseas who became naturalised, calling it a “fundamentally un-Australian notion”.

Geoffrey Kennett SC conceded Senator Xenophon’s British overseas citizenship, which does not give him right of entry or right to live in Britain, may “very well be a reason why one would find Senator Xenophon is not, for these purposes, a citizen”.