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Lawyer argues Canavan was never an Italian citizen

Matt Canavan's future is in the hands of the High Court.

Matt Canavan's future is in the hands of the High Court. Photo: AAP

Barnaby Joyce and his deputy Fiona Nash should not be disqualified from Parliament because each tore up their dual citizenships as soon as they were made aware, the High Court has heard.

Fellow Nationals senator Matt Canavan should also be spared the court’s wrath because he was never an Italian citizen to begin with, his lawyer says.

The trio are among seven federal politicians whose futures will be decided by a three-day grilling over their citizenships.

Bret Walker SC, representing Mr Joyce and Senator Nash, said neither of them knew until recently they were dual citizens of New Zealand and Britain respectively. As soon as they found out, they took all reasonable steps required to sever their foreign ties.

barnaby joyce

Kiwi? Barnaby Joyce. Photo: AAP

Mr Walker said section 44 of the constitutional was designed to ward off split allegiances among politicians.

“There’s no split allegiance where you’re not aware of one,” he said in Canberra on Tuesday.

“You cannot heed a call you cannot hear.”

Mr Joyce knew his father was born in New Zealand but wasn’t aware until recently he had been a citizen and renounced it nearly 40 years ago, the court heard.

James Joyce came to Australia as a British subject but acquired New Zealand citizenship when it became law in 1949. He renounced it as soon as he found out.

Mr Joyce didn’t know that had happened until this August so was unaware that he was a New Zealand citizen by descent or even of the possibility that he could be.

Canavan hit by ‘quirk of history’

Solicitor General Stephen Donaghue said Senator Canavan appeared to have acquired Italian citizenship due to a “quirk of history” after an Italian court decided in 1983 that citizenship could be conferred from one’s mother.

But David Bennett QC, representing Senator Canavan, said it was in dispute among Italian lawyers that citizenship flowed automatically from the court’s decision.

Mr Bennett said “the better view” was that it was a conditional citizenship, which did not apply automatically, and a person would then need to take steps to become an Italian citizen.

“Your honours cannot be satisfied that Senator Canavan became an Italian citizen by virtue of the constitutional decision,” he said.

Mr Bennett also argued it was irrelevant Senator Canavan’s mother registered herself and her children as Italian residents overseas in 2006.

The document was not an election to take up citizenship but merely a registration, and was by no means an application on behalf of her children, Mr Bennett told the court.

The Commonwealth argues Mr Joyce and senators Nash and Canavan – as well as crossbencher Nick Xenophon and Greens senator Larissa Waters – should not be disqualified because they did not voluntarily obtain or retain foreign citizenship.

All except Ms Waters were born in Australia and have sworn they had no knowledge the law of another country had made them citizens by descent.

Those who believed there was a “sufficiently high prospect” of having foreign ties, however, should not be eligible – including former Green Scott Ludlam and One Nation senator Malcolm Roberts, both of whom were born overseas.

Mr Donoghue said Senator Roberts did not take all reasonable steps available to renounce his British citizenship and should be disqualified.

The hearing continues on Wednesday.

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