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Malcolm Roberts' UK citizenship queries sent to nonexistent email addresses, court hears Malcolm Roberts' UK citizenship queries sent to nonexistent email addresses, court hears
(about 3 hours later)
Malcolm Roberts sent an email headed “am I still a British citizen?” in a bid to check his status with UK diplomatic officials before nominating for the Senate, the high court has heard. Malcolm Roberts has conceded in the high court that he signed his senate nomination form thinking there was a possibility he held dual citizenship that made him ineligible to stand.
But the One Nation senator, who insists he always believed he was only ever Australian, never received a response because he used two non-existent email addresses, the court heard in Brisbane on Thursday. But the One Nation senator said that “the level of my possibility was very low”, insisting he simultaneously held a “firm belief” he had only ever been Australian.
Barrister Robert Newlinds, acting for Roberts in a case that will decide his eligibility for parliament, said he would not contest expert evidence that his client was in fact British by descent when his senate nomination took effect on 8 June last year. However, in the hearing in Brisbane on Thursday, Roberts’ own barrister said contrary to his evidence, it was “inevitable” the court would find he “understood at some level he probably was British” before he was naturalised as an Australian in 1974.
The constitution prohibits dual citizens from standing, but the court has previously found a candidate may be safe if they take “reasonable steps” to renounce. “He’s talked himself into a different belief about this,” barrister Robert Newlinds said, adding it was for the judge to decide how that went to his credit as a witness.
However Roberts in cross-examination declined to say whether he personally accepted this, saying: “I’ve only ever thought I was Australian until I heard it in court this morning.” Awareness of his past British nationality will be a factor in the court’s ruling on whether Roberts, born in India to a Welsh father, took “reasonable steps” to renounce dual citizenship before nominating for the senate on 8 June last year.
The court heard reports by overseas legal experts sourced by the solicitor-general said the Queensland senator, born in India in 1955 to a British father, had been both a citizen of the UK and India before being naturalised as an Australian in 1974. Roberts is one of seven federal senators and MPs, whose eligibility for office under a constitutional provision that rules out dual citizens, will be decided by the court.
But he automatically lost his Indian citizenship when he was naturalised at the age of 19. Newlands said he accepted expert evidence before the court that Roberts had been a British citizen by descent when he nominated.
Newlinds said he would argue his client had a “suspicion” he may have been a British citizen before nominating – but this was not the same as being aware there was “a real possibility” as argued by the solicitor-general. But Roberts, under cross-examination from barrister Stephen Lloyd, repeatedly insisted that “in all my dealings with the British government, it is still not clear in any way that I ever had British citizenship”.
Roberts denied the heading “am I still a British citizen?” to an email he directed at the British consulate in Brisbane on 1 May last year suggested he knew he had had previously been British. That included receiving confirmation of his renunciation of British citizenship from the UK Home Office after he was elected and Roberts’ wife had chased up formal paperwork to renounce.
Barrister Stephen Lloyd, acting as friend of the court or its appointed questioner, said Roberts sent this to two email addresses that were invalid – one that hadn’t been used since 2010, and another that was “clearly flawed” as it ended with “sydney.uk”. Lloyd repeatedly pressed Roberts on whether he now conceded, given the evidence before court and his own lawyer’s acceptance of it, that he had been a British citizen when nominating.
In a second email on 6 June to those addresses, and a third valid address, Roberts complained about not receiving a response. But Roberts repeatedly answered that he would check with his barrister before conceding this.
This was because the first email was “not sent to emails in fact used by the British consulate in Brisbane or [the high commission] in Canberra”, Lloyd said. Roberts, who did not have a passport until he was formally naturalised as an Australian in 1974, told the court he believed from “family conversations” that he had always been Australian.
Roberts said he could not remember how he found the email addresses at the time but he likely used Google. Newlinds said the key date for Roberts was 8 June, when his nomination paperwork was lodged. He said he signed his candidate application form for One Nation on 29 April last year with “absolute conviction” he was eligible. It was only days later “after reflection” on his birthplace and his father’s British citizenship that he considered the possibility he was a dual citizen.
With the solicitor-general having argued that Roberts’ awareness of prior British citizenship was a key to deciding whether he took reasonable steps to renounce, Roberts emailed the British consulate on 1 May with an email headed “am I still a British citizen?” but Lloyd said the two addresses he found, probably via Google, were no longer in use.
Lloyd pressed the Queensland senator on why he used the word “still” in his first email, arguing it showed his “state of mind” was he knew he had once been. He agreed with Lloyd that he filled out his senate nomination form on 3 June thinking this was still a possibility. Roberts said after he “became annoyed at getting no answer from the British consulate” he sent another on 6 June to the same addresses, and a third invalid one, saying he renounced his citizenship “just in case”. He never received any response to the emails, none of which reached consular officials. On 8 June, he lodged his nomination form with the Australian electoral commission, the date by which he is supposed to have renounced dual citizenship.
“If there was a possibility I was British then it would have been that case that I had been British,” Roberts replied, later adding: “I reject your suggestion.” Roberts said by then he had arrived again at a “firm belief” he was Australian, despite not having received any advice from overseas authorities or lawyers.
He also denied the opening line of the email, “if I remained a British citizen…”, suggested the same thing. Lloyd asked if it was fair for Roberts to characterise as an “investigation involving analysis” his steps to that point: reflecting on “how you felt being Australian”, checking a visa to India for a later visit showing he was an Australian, and sending “an email that got no response”.
“My enquiry was to explore the possibility of being British – the key word is ‘if’,” Roberts said. Roberts said it was, but that he had subsequently asked his sister, Barbara, who “said we were stateless”.
Roberts said he always believed he was Australian because of “conversations around our family”. He told the court he signed a form for Australian naturalisation at 19 – which indicated he was a British citizen – but did not read it, with his sister, then 16, filling out paperwork for him.
“But you didn’t come to Australia until 1962,” Judge Patrick Keane said. Newlinds said it was obvious that Roberts could have done more – such as see a lawyer, visit the UK consulate in person or source paperwork as his wife later did.
Roberts said his belief was reinforced when learning around September last year he had travelled as a child under his Australian mother’s passport. But Newlinds argued he had taken reasonable steps “in good faith believing it was the best he could do” to ensure he was not a dual national.
However, when pressed by Keane and later Newlinds about the clause in his mother’s passport stating he had not attained Australian citizenship, Roberts said he had not noticed this. “He actually didn’t turn a blind eye to the situation. He tried to do something and get to the bottom of it,” Newlinds said.
Roberts is one of eight MPs from across the political spectrum recently caught out by the constitutional rule barring federal politicians from holding dual citizenship. The court heard expert testimony Roberts would have been an Indian citizen by birth but that he automatically lost this on becoming Australian in 1974 after arriving in 1962.
Solicitor-general Stephen Donaghue QC has previously said the Commonwealth would argue for the senator’s disqualification, if crucial documents were found to be dated after his nomination in June 2016. Lloyd, speaking ahead of expert testimony on UK citizenship laws, said he would argue that even if Roberts’ 6 June email was a valid way of renouncing his British nationality, it did not take effect.
This was because he sent it “not to the right place” – which should have been the Home Office instead of a consulate or high commission - and “failure to pay the fee” for his renunciation to be registered, which was when his UK citizenship formally ended.
The hearing continues.