George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

by leave—I move:

Pursuant to section 376 of the Commonwealth Electoral Act 1918, the Senate refers to the Court of Disputed Returns the following questions:

  (a)   whether by reason of section 44(i) of the Constitution, there is a vacancy in the representation of Queensland in the Senate for the place for which Senator Matthew Canavan was returned;

  (b)   if the answer to question (a) is "yes", by what means and in what manner that vacancy should be filled;

  (c)   what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference;

  (d)   what, if any, orders should be made as to the costs of these proceedings.

On the afternoon of Monday, 24 July, Senator Canavan approached me in my office in Brisbane to advise that he had been informed by the Italian embassy that he was an Italian citizen. Senator Canavan also informed the Prime Minister and the Deputy Prime Minister. In 2006, Senator Canavan was apparently registered with the Italian consulate in Brisbane on a register known as the AIRE, or Registry of Italian Nationals Resident Abroad. It seems this occurred as part of an application for registration made by Senator Canavan's mother. Senator Canavan did not authorise this registration to be undertaken on his behalf.

As I said in my press conference on 25 July, the government took advice from the Solicitor-General. Though this will of course be a matter for the court, it is the government's preliminary view that, given the circumstances in which Senator Canavan may have obtained Italian citizenship, he is not in breach of section 44 of the Constitution. However, as I also said on 25 July, the government believes it is appropriate to refer the matter to the Court of Disputed Returns to resolve any uncertainty. The government will seek a directions hearing at the earliest opportunity and will work to have the reference heard by the court on an expedited basis. The government has acted swiftly to address this matter. I announced our intention to refer to the matter to the High Court, sitting as the Court of Disputed Returns, on the day after senior ministers became aware of the matter and as soon as we'd received Solicitor-General advice.

There is an overriding public interest in resolving the uncertainty around Senator Canavan's status, and it is important to remember that, at present, the situation is just that—it is uncertain. One of the questions is whether Senator Canavan is indeed an Italian citizen. That is primarily a question of Italian law. There will no doubt need to be evidence from experts in Italian law, and I won't speculate on what that evidence may tell us. More importantly for honourable senators, and indeed for all members of this parliament, there are questions of law as to the proper interpretation of section 44(i) of the Constitution, which provides:

Any person who:

(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of 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.

The legal characterisation of section 44(i) has long been the subject of legal argument, although primarily among constitutional law scholars, relatively seldom in the High Court itself. Senators may be interested to note that, in the 1897 draft of the Constitution, the equivalent clause referred to:

Any person-

(1) Who has taken an oath or made a declaration or acknowledgment of allegiance … to a Foreign Power, or has done any act whereby he has become a subject or citizen …

In other words, the framers appear, at least initially, to have been concerned only with those who, unlike Senator Canavan, had taken active steps to swear or declare allegiance to a foreign country. Ninety years after that 1897 draft, in Nile v Wood, three members of the High Court—Justices Brennan, Deane, and Toohey—opined:

… it would seem that s.44(i) relates only to a person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that acknowledgment …

In 1981 the Senate Standing Committee on Constitutional and Legal Affairs reported that the aim of the provision:

… was to ensure that members of Parliament did not have a split allegiance and were not, as far as possible, subject to any improper influence from foreign governments.

In Sykes v Cleary, now the leading case, which arose from the by-election to replace the former Prime Minister, Mr Hawke, as the member for Wills, Justice Brennan opined that:

Section 44(i) is concerned to ensure that foreign powers command no allegiance from or obedience by candidates, senators and members of the House of Representatives; it is not concerned with the operation of foreign law that is incapable in fact of creating any sense of duty, or of enforcing any duty, of allegiance or obedience to a foreign power.

Justice Deane, in Sykes v Cleary, considered that section 44(i) should apply:

… only to cases where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned.

According to Justice Deane, 'an Australian-born citizen is not disqualified by reason of the second limb of s.44(i) unless he or she has established, asserted, accepted, or acquiesced in, the relevant relationship with the foreign power.' To similar effect, Justice Dawson considered that what can reasonably be required by section 44 will depend, in part, on, 'The person's knowledge of his foreign nationality,' and:

… the circumstances in which the foreign nationality was accorded to that person: …

One wonders what members of the court might have made of an individual named John Christian Tanck. Born in 1867 in Chile to a Chilean father and an Irish mother, Mr Tanck moved to New Zealand as a toddler. He later emigrated to Sydney and was elected to the New South Wales parliament. In 1894, he was then elected as a member of the House of Representatives to the first Commonwealth parliament. In 1904, as the first federal parliamentary leader of the Australian Labor Party, he became our third Prime Minister. By that time, he was known as John Christian Watson.

So, the history of section 44 is a long one. It is to be hoped that the referral of Senator Canavan's circumstances to the Court of Disputed Returns serves the indisputable public interest in bringing some much needed clarity to this provision of the Constitution. I commend the motion to the Senate.