Politicians who were “oblivious” to their dual citizenship and can “honestly swear” this was the case should remain in Parliament, Attorney-General George Brandis has argued.
It comes ahead of a crucial week for the Turnbull government, with the High Court set to hear the cases of seven dual citizen MPs and senators, including Deputy Prime Minister Barnaby Joyce, Deputy Nationals leader Fiona Nash and former Nationals cabinet minister Matt Canavan.
In the government’s final submission to the court on Friday, Senator Brandis said the five parliamentarians the government believes should not be disqualified “were oblivious to their status under foreign law until very recently”.
Those parliamentarians who “can honestly swear to being unaware” should be taken at their word, the government argued.
“In such a case, if there is material that contradicts such a claim, then the matter can be tested, as occurred in relation to [One Nation] Senator [Malcolm] Roberts,” the submission said.
The government believes Mr Joyce, Senator Nash and Senator Canavan should not be disqualified under section 44(i) of the Constitution because they were unaware of their dual citizenship and therefore could not take steps to renounce it.
The same ruling should apply to Greens senator Larissa Waters and crossbench senator Nick Xenophon, the government argues, but not One Nation senator Malcolm Roberts or the Greens’ Scott Ludlam.
Prime Minister Malcolm Turnbull said on Sunday he was “very confident” the court would find in the government’s favour.
“I’ve said we are confident based on the advice we have from the Solicitor-General that the court will find that senators Canavan and Nash and the Deputy Prime Minister are not disqualified from serving in the Parliament.”
But several constitutional experts doubt the strength of the government’s case, including UNSW Dean of Law Professor George Williams who said a candidate’s ignorance of their dual citizenship was not a “plausible explanation”.
The High Court hearings are another setback for a government that continues to struggle in the polls. In the latest Newspoll released on Sunday night, Labor held its lead of 53 to 47 per cent on two-party terms.
Windsor says Joyce should go
Mr Joyce’s lawyers on Friday rejected the suggestion that citizenship by descent was “so common across countries through the world and so notorious to the Australian public” that candidates with foreign-born citizens should be expected to enquire about their status.
It emerged in August that Mr Joyce had inherited New Zealand citizenship through his father who was born in New Zealand but moved to Australia in 1947.
Lawyers for Tony Windsor, the former independent MP who ran against Mr Joyce last year, said in his submission to the court that allowing parliamentarians who were dual citizens but unaware of their status would “reward the careless”.
Mr Windsor’s lawyers said it would encourage politicians to wait until “investigations by the media or concerned electors” revealed they were a foreign citizen before they took action.
Mr Windsor has not ruled out running in the by-election that would be triggered if Mr Joyce was ruled ineligible by the court.
Senator Xenophon announced on Friday that he would quit the Senate to seek a seat in South Australia’s lower house, meaning he will be replaced regardless of the court’s decision.
Ms Waters, who resigned from the Senate, has left the door open for a return, potentially setting up a fight with Andrew Bartlett, the Greens candidate who is otherwise in line to take her Senate seat.
Senator Roberts is expected to be ruled ineligible by the court, with One Nation candidate Fraser Anning expected to take his place.
The New Daily recently revealed Mr Anning had posted on social media praise for Russian President Vladimir Putin and suggesting former US president Barack Obama was a Muslim.
The court is scheduled to sit for three days from Tuesday.