Page:Re Canavan.pdf/48

Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

operated to deny equal treatment to male and female Italians. From the date of the Constitutional Court's decision and with effect from the date the new Italian Constitution came into force (1 January 1948), Italian citizenship passed to a child either of whose parents was an Italian citizen. The effect of the decision was that Senator Canavan's mother became an Italian citizen by birth and, on one view, Senator Canavan became an Italian citizen "retroactively" to the date of his birth.

82 Senator Canavan's mother's marriage to his father in 1979 did not affect any right of Italian citizenship arising from the Constitutional Court's decision. At the time, Italian law provided that a female citizen lost her Italian citizenship on marriage to a foreign citizen provided the husband's citizenship was transmitted to the wife. The provision did not apply to Senator Canavan's mother because she was already an Australian citizen when she married an Australian husband. Italian citizenship is currently governed under a law enacted in 1992, which provides that the child of a parent who is an Italian citizen is an Italian citizen by birth.

83 As will appear, there is a question as to whether registration is merely declaratory of the status of citizen or a condition of the grant of the status in the case of citizenship by descent. The authors of the joint report explain that where a person files an application with supporting documents with an Italian Consulate for registration with A.I.R.E., the Consulate liaises with the Italian municipality in which the applicant's ancestor lived in order to establish "a continuous chain of ancestry". The Consulate sends the applicant's birth certificate to the Italian municipality, which registers the applicant. Registration as a citizen is described as a "separate and more rigorous process". The authors of the joint report conclude that Senator Canavan's mother applied for registration with A.I.R.E. in her own interest and that the registration of Senator Canavan and his siblings occurred at the initiative of the Consulate in Brisbane.

84 Registration with A.I.R.E. is distinguished in the joint report from a request for the declaration of Italian citizenship, which is required to follow the steps set out in a circular issued by the Italian Ministry of Foreign Affairs in 1991 ("the circolare"). The authors of the joint report state that "[o]nly after the request made by the individual for the recognition iure sanguinis of the Italian citizenship has been ascertained to be well grounded, may the consulate issue the relevant certificate of citizenship". They observe that it is not known if "the investigation and controls" referred to in the circolare have been carried out. They state that the A.I.R.E. certificate issued by the Mayor of the Municipality of