Accepting that politicians without knowledge of their foreign citizenship can sit in parliament will lead to “radical instability” and a repeat of the eligibility chaos of 2016, the court of disputed returns has heard.
The former solicitor general, Justin Gleeson, told the court on Wednesday it should reject the commonwealth’s case that parliamentarians without knowledge of their dual citizenship are eligible because they did not “voluntarily obtain or retain” allegiance to a foreign power.
Gleeson, on behalf of the former independent MP Tony Windsor who is challenging Barnaby Joyce’s eligibility, argued allegiance derives from one’s status as a foreign citizen regardless of whether one is aware of it.
A parliamentarian’s dual citizenship creates an “irremediable conflict irrespective of their knowledge of it”, he said.
The former solicitor general gave the example of a dual Greek-Australian citizen conscripted into military service in Greece despite ignorance of their foreign citizenship.
Gleeson also noted New Zealand criminal law has extra-territorial effect on its citizens, which would have rendered Joyce susceptible to the criminal law of New Zealand before he renounced his dual citizenship on 12 August.
The friend of the court, Geoffrey Kennett, agreed that there may be “duties under foreign law that could conceivably be enforced upon a person” regardless of their knowledge.
Section 44 of the commonwealth constitution states that people are incapable of being chosen as a senator or MP if they are the subject or citizen of a foreign power.
On Tuesday, Joyce and Fiona Nash’s counsel, Brett Walker, submitted the section does not disqualify people who did not have knowledge of their foreign citizenship and, if they discovered it, they should have a reasonable time to renounce it.
Gleeson argued that such a “grace period” would allow an unknown number of people to remain in parliament with an allegiance to a foreign power for a…