Geoffrey Kennett says claim citizenship was ‘doubtful and therefore not proved’ could not be accepted given there was no one to contradict it

This article is more than 2 years old

This article is more than 2 years old

The friend of the court of disputed returns has rejected Matt Canavan’s claim he should win his eligibility case because it is “doubtful” that he is Italian.

Geoffrey Kennett told the court on Thursday it had only become clear on Tuesday afternoon that Canavan is now claiming he may never have been Italian, an issue which should have been “crystalised in a clearer way” much sooner.

When he resigned from cabinet on 25 July, Canavan said “according to the Italian government I am an Italian citizen”.

But Canavan’s lawyers never conceded the point, and on Tuesday quoted extensively from an expert report that appeared to conclude he was Italian but noted that experts are divided on whether a 1983 Italian constitutional court decision could be backdated to Canavan’s birth in 1980.

In the 30-page report tendered to the court, and obtained by Guardian Australia, Mauirizio Delfino and Prof Benjamino Caravita di Torrito, conclude that the 1983 decision was retroactive, but then state that would infringe the principle of reasonableness in the Italian constitution.

On Tuesday, Canavan’s counsel, David Bennett, summarised the report by saying its ultimate conclusion was therefore that Canavan may have needed to take an action to activate his citizenship and he did not become a citizen automatically.



Kennett rejected that reading, submitting that the court should be slow to interfere with the 1983 decision by concluding it would infringe the principle of reasonableness.

He submitted that Canavan’s claim it was “doubtful and therefore not proved” he was Italian could not be accepted given there was no contradictor in the case.

Kennett accused Canavan’s lawyers of in effect attempting to place “an onus of proof on someone who doesn’t exist and then claiming victory when that onus is not met”.

Kennett submitted that if the report left the judges unable to be satisfied Canavan was Italian, then it may suggest the expert evidence is not in a proper state to decide Canavan’s case.

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While the report does include the argument presented by Bennett in court, it also states that Canavan “acquired the Italian citizenship automatically iure sanguinis (through ancestry)” because of a 1983 Italian constitutional court decision, which meant that citizenship is also passed down the maternal line.

“Both Senator Canavan and his mother did not become Italian citizens at the time for their birth but became Italian citizens by the date of their birth as a result of the retroactive effect of the (1983) decision,” Delfino reported. “Since under Italian law Italian citizenship is automatically acquired by birth, the relevant administration decision has a mere declaratory effect.

“This means that the administrative decision declares that the citizenship already exists and does not create the citizenship right.”

Bennett submitted that the report had an “unusual structure” because while it appeared to reach one conclusion about Italian citizenship law, the final section suggested the law needed to be read “in a way that would negate all the conclusions in the first part”.

In the final section of the advice, the authors note disagreement among Italian law experts and claim it would breach the “principle of reasonableness” in the Italian constitution if citizenship were conferred automatically without the person choosing to take it up.

The report concluded it was arguable that Italian legislation may only have given Canavan and his mother a “potential citizenship right” that needed to be “activated”.

Although legal counsel can be expected to minimise the import of legal arguments unfavourable to their client, the two alternative conclusions from the report leave the court in the position of possibly having to resolve an Italian law dispute to determine Canavan’s citizenship.

If accepted by the court, the argument could see the former federal resources minister retain his Senate seat, even if the other six parliamentarians are ruled ineligible by a strict reading that all dual citizens are ineligible to sit in parliament.

On Tuesday Bennett quoted extensively from that passage to suggest that Canavan may never have been an Italian citizen and the only expert evidence before the court is that the better view of Italian law is he was not.

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The submission appeared to catch the judges by surprise. Justice Stephen Gageler queried whether there was “any hint” of the claim in written submissions.

Bennett drew the court’s attention to one paragraph referencing “doubts over whether the Italian citizenship law of 1912 validly conferred Italian citizenship on senator Canavan at all”.

In a directions hearing on 24 August before the chief justice, Susan Kiefel, Bennett also referred to “doubt under Italian constitutional law as to the validity of that retrospectivity”.

On Tuesday Kiefel noted that no application was made to cross-examine the experts and the advice suggested having citizenship “foisted” upon a person may breach “a constitutional principle of reasonableness”. “Quite what that means, we do not know,” she said.

Although Canavan’s mother registered herself as an Italian citizen resident overseas and Canavan was also recorded as such, Bennett said that was not an election to become citizens and could not make Canavan a citizen without a declaration from him.

Although the Brisbane consulate said Canavan was registered as an Italian abroad, Bennett said it appeared that advice was based on Canavan’s mother’s registration, which the expert evidence said was “irrelevant” to his citizenship.

Submissions from the amicus curiae intervening in Canavan’s case submitted that he was an Italian citizen on the date of his nomination (13 May 2016) but did not refer to independent expert evidence.

“Senator Canavan’s Italian citizenship has been discoverable for over 30 years,” the submissions said. “To complain about the retroactive operation of the law is far too delicate a submission in those circumstances.”