Joyce, Canavan ‘citizens of NZ, Italy’

The Solicitor-General has made concessions about Matt Canavan and Barnaby Joyce in submissions to the High Court.

The issue of Barnaby Joyce’s citizenship is going to the High Court. Picture: AAP

The Commonwealth Solicitor-General Stephen Donaghue has conceded that Senator Matt Canavan and Deputy Prime Minister Barnaby Joyce “are, or were, citizens of Italy and New Zealand respectively” in the government’s formal submission to the High Court.

The submission, lodged yesterday, urges the High Court to act swiftly in determining whether the election of several MPs and Senators can be considered valid and proposes the question of their dual citizenship be examined in hearings on September 13 and 14.

It also proposes new arrangements that could be contested by those who have already been referred to the High Court, such as One Nation Senator Malcolm Roberts, meaning the eligibility of various MPs and Senators may not be able to be determined all at once.

In the government submission filed ahead of Thursday’s directions hearing, Mr Donaghue conveys the view of the Attorney General George Brandis that the matter be resolved as quickly as possible and proposes arrangements to help expedite the case.

“The Attorney-General submits that there is a compelling public interest in the references being determined as quickly as possible, given that they involve the qualifications of several sitting senators and a member of the House of Representatives,” the submission says.

The new arrangements proposed by the government include the provision of opinions from legal experts in Italy and the UK in relation to the citizenship of both Senator Canavan and Mr Joyce to help provide a “sufficient account of the applicable foreign law” to help inform the court.

“The experts conclude that, for the purposes of the domestic law of each country, Senator Canavan and the Hon Barnaby Joyce MP are, or were, citizens of Italy and New Zealand respectively. The Attorney-General understands that this conclusion will not be disputed in either reference.”

The government also proposes that, if this approach is accepted by the court, that further legal opinions be sought concerning the position of former Greens Senators Scott Ludlam, Larissa Waters as well as Senator Roberts.

LNP Senator Matt Canavan. Picture: Kym Smith

Senator Brandis proposes that Laurie Fransman QC, of the United Kingdom Bar, provide the relevant advice in relation to Senator Roberts while David Goddard QC, of the New Zealand Bar, provide the advice in relation to Mr Ludlam. It also proposes a “suitable expert in Canadian law” provide an opinion in relation to Ms Waters.

It appears these arrangements are aimed at ensuring the matter can be resolved as quickly as possible so the validity of the election of all parliamentarians who have fallen foul of section 44(i) of the constitution to be determined together.

Under section 44(i) of the constitution a person is incapable of being elected to the parliament if they are a “citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power.”

However, if Mr Ludlam, Ms Waters or Senator Roberts contest the findings of the legal opinions being offered by the government, Senator Brandis advises their case be heard separately by the court.

“In the event that any person who is the subject of a reference disputes the conclusion reached in any of the expert opinions anticipated above, the Attorney-General submits that that reference may need to be determined separately from the other references.”

To assist in the “expeditious hearing of the references,” Senator Brandis also proposes to submit to an order to pay the costs of each of those who have been referred to the High Courts but “reserves his position on costs in relation to any other party to the proceedings.”

The submission notes that the judgment of the court may have direct implications for two more Senators including Nationals Deputy Leader Fiona Nash and South Australian crossbencher Nick Xenophon, both of whom are “likely to be referred by the Senate to the Court of Disputed Returns when Parliament next sits.”

Another factor that could complicate and possibly delay the process is the need for the Attorney-General to “serve a notice under section 78B of the Judiciary Act” by 4pm on Friday. This will require Senator Brandis to inform the states and territories that they can intervene in the High Court proceeding because it touches on a constitutional issue affecting the states.