Pure sophistry from Do-nothing Malcolm in the High Court:
Two possible paths that could lead to victory for the government emerged yesterday after Solicitor-General Stephen Donaghue QC argued the Sykes v Cleary ruling was problematic.
The High Court, sitting as the Court of Disputed Returns, could overturn the ruling, upon which much of section 44 of the Constitution has been interpreted, or acknowledge that the case does not cover what the government argues is a unique circumstance of citizenship by descent.
Section 44 of the Constitution disqualifies a person who is a “subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power”.
The Labor Party has had legal processes in place for years that require its candidates to determine if they are dual citizens and take necessary steps to renounce any foreign citizenship if they — or a parent or grandparent — were born overseas.
Sykes v Cleary found two foreign-born candidates, Bill Kardamitsis and John Delacretaz, who were running for a by-election in Bob Hawke’s seat of Wills, were ineligible to sit in parliament because they failed to renounce their foreign citizenship.
Australian National University professor Kim Rubenstein, who specialises in citizenship law, said the court might find there was enough distinction between Sykes v Cleary and the cases of the five MPs who acquired citizenship by descent and would “not necessarily feel bound to follow” the 1992 ruling.
Attorney-General George Brandis argues Mr Joyce, the Deputy Prime Minister and Nationals leader, is eligible to sit in parliament because he involuntarily gained dual citizenship by descent and had no knowledge of his status. The government says the argument should also apply to Nationals deputy leader Fiona Nash, Nationals senator Matthew Canavan, independent senator Nick Xenophon and former Greens senator Larissa Waters.
Dr Donaghue, appearing for Senator Brandis, argued section 44 should only disqualify those MPs who had some knowledge of their dual citizenship. Relying on citizenship law dating back to the 1700s, he said there was a clear distinction between naturalised citizens — those born overseas who later became Australian citizens, such as former Greens senator Scott Ludlam and One Nation’s Malcolm Roberts — and those “natural-born” MPs who acquired citizenship through an overseas-born parent.
Knowledge of citizenship based upon what? The word of these carpet-baggers? How do we know that they didn’t know? We don’t. Nor do we know how having it impacts their view of things now. All we can know for certain is that they were negligent in their duty to ensure that they are not dual citizens. Pure and simple, rock-solid, fact.
This argument is way over-interpreting the actions of the individual regarding the law. Moreover, these particular individuals are somewhat akin to corrupt policemen, violating a fiduciary responsibility to be cognisant of the law that they are elected to serve.
Ignorance of the law is no excuse. Especially in those elected to defend it. They’ve got to go.
