Case set down to return to high court on 10 October as the eligibility of several parliamentarians remains uncertain 

Barnaby Joyce
 Barnaby Joyce’s case will feature former independent MP Tony Windsor as a ‘contradictor’. Photograph: Mick Tsikas/AAP

Tony Windsor, the former independent MP and rival to Barnaby Joyce, has been allowed to join the citizenship case being heard in the high court by chief justice Susan Kiefel, who has set down hearings in October.

Kiefel, at a directions hearing in Brisbane on Thursday, allowed Windsor to join the case as a “contradictor” after he stood unsuccessfully against Joyce, who belatedly discovered he was a New Zealand citizen.

The chief justice agreed with the solicitor general, Stephen Donaghue, that the matter of whether up to seven federal parliamentarians who held dual citizenship were valid candidates in the 2016 election was urgent. But proposed hearings in September were pushed back to 10-12 October in Canberra to accommodate legal teams for senators Matthew Canavan and Malcolm Roberts, who would call experts on foreign citizenship laws.

Canavan’s barrister, David Bennett, said he planned to produce evidence to show a “ridiculous” number of Australians, as much as 50% of the population, would be ineligible to run for parliament if citizenship-by-descent rules of foreign countries were held against his client.

The Liberal National party senator unwittingly became an Italian citizen when he was two years old because of changes to Italian laws that were constitutionally invalid, according to his expert evidence, Bennett said.

Donaghue, for the attorney general George Brandis, said he would argue that Scott Ludlam and possibly Roberts were “different” cases to the others in that they would have known they were at one time foreign citizens, and should be disqualified.

Ludlam, who was born in New Zealand, applied at the age of 19 to be an Australian citizen.

The barrister Robert Newlinds, for Roberts, said his client did not concede that he was ever anything but an Australian citizen but that he had contacted the British Home Office before his nomination to take steps to renounce any British citizenship via his Welsh father, just in case. British authorities had subsequently sent Roberts a form and confirmed his renunciation after he was elected.

Donaghue said he was aware of a historical document suggesting Roberts was previously a British citizen and, if that was correct, he fell into the category of a person who knew he was a foreign citizen.

In that case the question with both Ludlam and Roberts was whether they had taken “reasonable steps” to renounce, as the high court had previously found was necessary to avoid falling foul of section 44 of the constitution.

The “critical factual issue” around the steps Roberts took was “likely to be resolved on the obtaining of that document” in which he formally renounced to British authorities.

Section 44 says any person who is a “citizen of a foreign power” is “incapable of being chosen or of sitting as a senator or a member of the House of Representatives”.

But Donaghue said the attorney general would argue in the case of Joyce, Canavan and probably Larissa Waters that none of them knew they were foreign citizens and were not disqualified.

He said the previous case of Sykes v Cleary had prompted the court to find that citizens born in Australia who had not taken “affirmative” action to seek or accept foreign citizenship should not be captured by section 44.

Foreign citizenship laws could not apply where a person “subjectively” did not know they were subject to them, Donaghue said. This was the “clear demarcation line” between the cases before the court, he said.

Donaghue said Canavan and his mother were both born in Australia before 1983, when the Italian government changed laws to retrospectively grant citizenship not just to those with Italian lineage on the father’s side but also the mother’s.

Bennet said the 1983 changes made it “irrelevant” that Canavan’s mother had applied for Italian citizenship when he was an adult on his behalf but without his knowledge.

He had expert advice that the retrospective effect of the Italian laws, in Canavan’s case with the ““slenderest of connections” to Italy, was invalid, Bennett said.

Bennett said he would argue that foreign laws that granted dual “citizenship by descent” to Australians should be ignored.

He said he would apply evidence on foreign rules of citizenship by descent to population figures from the Australian bureau of statistics to show that “possibly in the order of 50%” of people would be ruled out of running for federal parliament.

“That result is so ridiculous” that the interpretation of section 44 had to be “smoothed” to take this into account, Bennett said.

Donaghue said Canavan “retrospectively became an Italian citizen without doing anything”.

This was the very kind of scenario that the court in Sykes v Cleary “would find could not be captured” by the constitution, he said.

Donaghue said it was the same case with the Australian-born Joyce, whose father was born in New Zealand before that country’s citizenship was even a formal concept.

Both later unwittingly became New Zealand citizens because of “the operation of foreign law”.

Donaghue said Waters might well be in the same situation because it appeared she never knew about her dual citizenship after she was born in Canada to Australian parents who had no residency rights there.

Waters, like Ludlam, quit the Senate on discovering she was a dual citizen. But if she were found to be a valid candidate, it would open a casual vacancy for which Waters could nominate, having since renounced her Canadian citizenship.

The five cases now before the court are Joyce, Ludlam, Canavan, Roberts and Waters.

Since their referrals to the court by federal parliament, Joyce’s National party deputy, Fiona Nash, and Senator Nick Xenophon have since declared discoveries they too are dual citizens. The court awaits their referrals next month.

Barrister Ron Merkel, for Windsor, who has applied for permission to conduct cross-examination, said he would carry out research to argue that citizenship by descent was “standard” in international law.

A candidate with an overseas-born parent who signed a form declaring they did not hold dual citizenship upon nomination could then be expected to take reasonable steps that may include obtaining legal advice, Merkel said.

The presence in the case of Merkel for Windsor – who applied for standing 15 minutes before the deadline – raises the prospect he may take a broader role as a “contradictor” who may test the evidence put by legal teams for the other politicians.

Kiefel said the relevance of a candidate’s “subjective” state of mind – whether they knew they were dual citizens – may not lend itself to useful cross-examination.

Newlinds said Roberts could not be ready for hearings in September, as sought by the attorney general, because he sought access to expert advice reportedly held by the attorney general on British citizenship rules regarding Nash, and to apply this to the senator’s own circumstances.

He also flagged the need for a “contradictor” to test evidence put forward by Roberts, saying “we would like people to accept our facts” on face value but it “didn’t seem proper” for the court to proceed that way.

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