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You can find the current article at its original source at https://www.theguardian.com/australia-news/live/2017/oct/10/citizenship-case-high-court-considers-mps-eligibility-live
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| Citizenship case: high court considers MPs' eligibility – live | Citizenship case: high court considers MPs' eligibility – live |
| (35 minutes later) | |
| 1.16am BST | |
| 01:16 | |
| Donaghue is now summarising citizenship laws – for both Australia and some of the foreign powers in question. | |
| We’re currently in 18th century British law. | |
| Updated | |
| at 1.19am BST | |
| 1.09am BST | |
| 01:09 | |
| Just for context, the overflow court is one of the high court hearing rooms – but we are all looking at a split screen broadcast of the proceedings. | |
| We are not allowed to take devices into the room where the case is being held, so in order to transmit was is happening, we have to sit down the hall. | |
| Updated | |
| at 1.10am BST | |
| 1.06am BST | |
| 01:06 | |
| The court has just brought up the fact that “natural-born Australians” are usually “on notice” of potential foreign citizenship, given the nation’s history. | |
| But Donaghue said in the government’s submission, if someone is not aware, or couldn’t be aware, then they shouldn’t be disqualified. | |
| This is going to be one of the main points we see argued. Given the multicultural nature of Australia, and that a lot of people are aware of potential citizenship conflicts, and renounce before they enter parliament, is it reasonable that these MPs did not check before nominating? | |
| Updated | |
| at 1.09am BST | |
| 1.02am BST | |
| 01:02 | |
| And we have got to the crux of the government’s case – it says section 44 should be read as “voluntarily obtaining or retaining” foreign citizenship. | |
| The chief justice, Susan Kiefel, is questioning Donaghue over “the subjective component over what would be a positive step” towards obtaining/retaining a foreign citizen. | |
| Donaghue says if someone became a citizen because someone filled out paperwork for them and lodged it without their knowledge, that would not be a positive step, or voluntarily becoming a citizen, despite the laws of the foreign power, at least under the test the government is arguing. | |
| “Knowledge of a sufficiently high prospect” that they could have foreign citizenship is another crucial aspect of the government’s case. | |
| Donaghue is arguing that if there was that knowledge “and they shut their eyes to it”, then they should be found in breach – that’s the government’s argument for why Scott Ludlam and Malcolm Roberts should be found in breach. | |
| But it argues the others didn’t have the knowledge of “a sufficiently high prospect” and, therefore, couldn’t have known they were in conflict with section 44. | |
| Updated | |
| at 1.10am BST | |
| 12.52am BST | |
| 00:52 | |
| Slight interruption as we are all booted from the overflow court (where we are allowed devices) because it is suddenly needed “for another purpose” and sent to a second overflow court. Just another quirk of the high court. | |
| But it seems like the court has moved on to clarifying whether the government believes there are any “non-literal” meanings of Australian citizen and section 44. | |
| Updated | |
| at 12.58am BST | |
| 12.46am BST | |
| 00:46 | |
| Fiona Nash’s case is now being outlined. She was born in Sydney, but her father was born in Scotland. They were estranged and she didn’t know the exact date of her father’s birth, or details about her grandparents. | |
| Donaghue believes that is an important point, given that family background is important when it comes to citizenship. Nash did not know, he argues, that you could receive citizenship by descent from Scotland. | |
| The last of the five the government claims should not be found in breach is Nick Xenophon. | |
| Xenophon has announced he intends to resign no matter what the high court decides – he has his eye on the South Australian state parliament. | |
| But he does believe he can win this, and so does Donaghue. Xenophon made moves to renounce any Greek or Cypriot citizenship before he entered the Senate but, as Donaghue argues, recently learnt he was a British overseas citizen because Cyprus was a UK territory until 1960. | |
| “At no time prior to the elections did it even cross his mind he might have British citizenship,” Donaghue says. | |
| But he does – because his father left Cyprus before the date of independence. “So, the relevant facts … are shown to depend not just on when the father is born … but related to the political fact” of when a country becomes independent. | |
| Updated | |
| at 1.16am BST | |
| 12.40am BST | 12.40am BST |
| 00:40 | 00:40 |
| Donaghue is whipping through these cases. He has moved on to Barnaby Joyce and is laying out his family history. | Donaghue is whipping through these cases. He has moved on to Barnaby Joyce and is laying out his family history. |
| Joyce’s father, James, left New Zealand before New Zealand citizenship existed. But when New Zealand citizenship was created, it was granted to Joyce Sr as a matter of course. | |
| Joyce the elder discovered he was a New Zealand citizen in 1978, when our Joyce was 10, when he went to become a justice of the peace and learnt he still carried New Zealand citizenship, and renounced it. | |
| This came as a surprise to Barnaby Joyce – he said he never had any reason to believe he was a New Zealand citizen, having been born in Australia. | |
| Updated | |
| at 1.17am BST | |
| 12.34am BST | 12.34am BST |
| 00:34 | 00:34 |
| Donaghue has moved on to Larissa Waters. Born to Australian parents in Canada, while they were working there, she left when she was 11 months old and believed that she was entitled to Canadian citizenship but needed to apply before she was 21. | |
| The government submits that she, like Canavan, conscientiously decided not to apply for citizenship. “She thought she had a choice to apply for Canadian citizenship,” Donaghue argues, and she did not. Therefore she had no reason to believe she was Canadian. | |
| Updated | |
| at 1.17am BST | |
| 12.31am BST | 12.31am BST |
| 00:31 | 00:31 |
| Donaghue says Canavan was told by his mother in 2006 that he was eligible to become an Italian citizen but needed to fill out some forms. He chose not to, and said that was why he it never crossed his mind to check his citizenship before nominating. | |
| Donaghue says the argument that it was “carelessness”, which is what Larissa Waters and Scott Ludlam contend, doesn’t hold up for Canavan, because of those circumstances. | |
| Updated | |
| at 1.18am BST | |
| 12.28am BST | 12.28am BST |
| 00:28 | 00:28 |
| The solicitor general, Stephen Donaghue, has described the situation Canavan has found himself as the fault of a “quirk” of Italian law. His grandparents became Australian citizens, and his mother was an Australian citizen, but in 1983, the Italian courts passed a law that gave citizenship to Canavan’s mother, which automatically passed on to a two-year-old Canavan. | The solicitor general, Stephen Donaghue, has described the situation Canavan has found himself as the fault of a “quirk” of Italian law. His grandparents became Australian citizens, and his mother was an Australian citizen, but in 1983, the Italian courts passed a law that gave citizenship to Canavan’s mother, which automatically passed on to a two-year-old Canavan. |
| Updated | Updated |
| at 12.33am BST | at 12.33am BST |
| 12.24am BST | 12.24am BST |
| 00:24 | 00:24 |
| The court already has an idea of the arguments – the submissions each MP’s counsel was obliged to provide lay out the defence. The government MPs have grouped their cases together with Larissa Waters and Nick Xenophon as not being in breach. | The court already has an idea of the arguments – the submissions each MP’s counsel was obliged to provide lay out the defence. The government MPs have grouped their cases together with Larissa Waters and Nick Xenophon as not being in breach. |
| Waters is a complication for the government – not only is she disputing the government’s defence and maintaining she, and the others, were in breach of the constitution, she was also born overseas. | Waters is a complication for the government – not only is she disputing the government’s defence and maintaining she, and the others, were in breach of the constitution, she was also born overseas. |
| So far, that has been the first question in Canavan’s case, which is being laid out by the solicitor general – how does Waters fit in, given she was born in Canada? | So far, that has been the first question in Canavan’s case, which is being laid out by the solicitor general – how does Waters fit in, given she was born in Canada? |
| He agrees it is a “complication” but plans to explain that more fully as they go on. | He agrees it is a “complication” but plans to explain that more fully as they go on. |
| Updated | Updated |
| at 12.32am BST | at 12.32am BST |
| 12.20am BST | 12.20am BST |
| 00:20 | 00:20 |
| We have begun - here’s an idea of the number of lawyers pic.twitter.com/RqNMedr8Ak | We have begun - here’s an idea of the number of lawyers pic.twitter.com/RqNMedr8Ak |
| 12.16am BST | 12.16am BST |
| 00:16 | 00:16 |
| The justices are in the building – the court is in session. | The justices are in the building – the court is in session. |
| Updated | Updated |
| at 12.17am BST | at 12.17am BST |
| 12.04am BST | 12.04am BST |
| 00:04 | 00:04 |
| The government is relying on a dissenting judgment from Justice Deane in 1992, which opened the door for the defence George Brandis is relying on. | The government is relying on a dissenting judgment from Justice Deane in 1992, which opened the door for the defence George Brandis is relying on. |
| While the rest of the court took section 44 literally when it came to citizenship, Deane took the line that it should really only apply to cases “where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned” | While the rest of the court took section 44 literally when it came to citizenship, Deane took the line that it should really only apply to cases “where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned” |
| Section 44(i) of the constitution states that any person who: | Section 44(i) of the constitution states that any person who: |
| “is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives”. | “is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives”. |
| Updated | Updated |
| at 12.17am BST | at 12.17am BST |
| 11.57pm BST | 11.57pm BST |
| 23:57 | 23:57 |
| There was quite the crowd for court room one. The high court has new security measures in place, so it was a slow start, but we are in place and waiting for the hearing to start at 10.15. | There was quite the crowd for court room one. The high court has new security measures in place, so it was a slow start, but we are in place and waiting for the hearing to start at 10.15. |
| It doesn’t look like any of the MPs will be attending, but there probably wouldn’t be room for them, given the number of briefcases and files in the room. | It doesn’t look like any of the MPs will be attending, but there probably wouldn’t be room for them, given the number of briefcases and files in the room. |
| We understand that Matt Canavan’s case will be the first discussed. | We understand that Matt Canavan’s case will be the first discussed. |
| 11.39pm BST | 11.39pm BST |
| 23:39 | 23:39 |
| Good morning and welcome to the first day of the citizenship hearings. | Good morning and welcome to the first day of the citizenship hearings. |
| The women and men of the high court have gathered in Canberra to hear the first of the citizenship cases in front of it. Government MPs Barnaby Joyce, Matt Canavan, Fiona Nash, One Nation’s Malcolm Roberts, Nick Xenophon and the Greens senators who resigned upon discovering their conflict, Larissa Waters and Scott Ludlam, will all have their cases examined over the next three days. | The women and men of the high court have gathered in Canberra to hear the first of the citizenship cases in front of it. Government MPs Barnaby Joyce, Matt Canavan, Fiona Nash, One Nation’s Malcolm Roberts, Nick Xenophon and the Greens senators who resigned upon discovering their conflict, Larissa Waters and Scott Ludlam, will all have their cases examined over the next three days. |
| Waters and Ludlam argue they were in the wrong and so is everyone else in front of the court, and should be found ineligible to have been elected. Their submission to the high court was pretty open and shut – essentially: we should have checked, we didn’t check and ignorance is no excuse. | Waters and Ludlam argue they were in the wrong and so is everyone else in front of the court, and should be found ineligible to have been elected. Their submission to the high court was pretty open and shut – essentially: we should have checked, we didn’t check and ignorance is no excuse. |
| But the government argues differently. Attorney general George Brandis submitted that Joyce, Nash, Canavan, Xenophon and Waters should be found not to be in breach of the constitution, because they didn’t know they were dual citizens and did not do anything to voluntarily receive or retain that citizenship. But Roberts and Ludlam, Brandis argued, had reasonable suspicion to check. | But the government argues differently. Attorney general George Brandis submitted that Joyce, Nash, Canavan, Xenophon and Waters should be found not to be in breach of the constitution, because they didn’t know they were dual citizens and did not do anything to voluntarily receive or retain that citizenship. But Roberts and Ludlam, Brandis argued, had reasonable suspicion to check. |
| If you need a refresher on why he thinks that, head here, but basically it’s because Ludlam and Roberts were born overseas and came to Australia, in Ludlam’s case as a teenager and for Roberts when he was seven years old. | If you need a refresher on why he thinks that, head here, but basically it’s because Ludlam and Roberts were born overseas and came to Australia, in Ludlam’s case as a teenager and for Roberts when he was seven years old. |
| Roberts believes he has the strongest case, having sent emails to defunct addresses to renounce any UK citizenship, despite not truly believing he was ever British. That’s the “reasonable steps” defence – but it will be up to the court to decide if those steps, were indeed reasonable, given the UK has a set process of official forms and a fee. | Roberts believes he has the strongest case, having sent emails to defunct addresses to renounce any UK citizenship, despite not truly believing he was ever British. That’s the “reasonable steps” defence – but it will be up to the court to decide if those steps, were indeed reasonable, given the UK has a set process of official forms and a fee. |
| Then there is Nick Xenophon, who has announced he is leaving the Senate anyway, to take a shot at the South Australian parliament. He said he took steps to renounce any Greek or Cypriot citizenship, given his parents’ ancestry, but was tripped up by the fact Cyprus was a British territory until 1960. He was born in 1959. And through his father, became a British overseas citizen at birth. | Then there is Nick Xenophon, who has announced he is leaving the Senate anyway, to take a shot at the South Australian parliament. He said he took steps to renounce any Greek or Cypriot citizenship, given his parents’ ancestry, but was tripped up by the fact Cyprus was a British territory until 1960. He was born in 1959. And through his father, became a British overseas citizen at birth. |
| It’s going to take three days to get through these cases – and a lot of coffee. | It’s going to take three days to get through these cases – and a lot of coffee. |
| Let’s get started. | Let’s get started. |
| Updated | Updated |
| at 11.49pm BST | at 11.49pm BST |