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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) | |
| 2.51am BST | |
| 02:51 | |
| Break time! | |
| The court has adjudicated until 2.15pm. | |
| I’m going to recharge the devices (there are no power points for us to use here) and see you back later this afternoon. | |
| If you just can’t get enough of section 44, my colleague Paul Karp will have a comprehensive story on the day’s events for your consumption soon. | |
| Updated | |
| at 2.52am BST | |
| 2.50am BST | |
| 02:50 | |
| One of the justices just brought up that Sykes v Cleary may have already addressed the issue of natural-born Australian v naturalised citizen – and that it shouldn’t be treated differently. It’s just a question, at this stage, but Donaghue didn’t directly address it, other than to say the government’s submission wasn’t directly relying on that. | |
| Updated | |
| at 2.51am BST | |
| 2.47am BST | |
| 02:47 | |
| One Nation leader Pauline Hanson is still backing Malcolm Roberts. Hanson declared “hand on heart” that she had seen Roberts’s paperwork which proved he had renounced his British citizenship before he nominated. That paperwork turned out to be emails he sent to defunct addresses in the days leading up to his Senate nomination, with the high court finding last month he was still a dual citizen when he was elected, and only filled out the official paperwork and paid the nominated fee after the 2016 election. | |
| Hanson had accused the media of a “witch hunt” over Roberts’s citizenship concerns. She has not addressed her declaration of having seen the paperwork, but she is still behind her party colleague and appears to have taken issue with George Brandis’s submission to the high court regarding Roberts. | |
| Here is what she told the ABC: | |
| Well, I hope that out of the citizenship hearing that everyone gets treated exactly the same. | |
| If one goes, they must all go. Because they have allegiance to its citizenship. Senator Brandis has targeted One Nation’s Malcolm Roberts right from the start. That is not fair and he should keep his nose out of it. It’s got nothing to do with him. And he said when Rod Culleton was up there, it’s nothing to do with the Senate, it’s to do with the high court. The same thing goes now. He actually has to stand back from this and let the high court or the court of disputed returns deal with this issue. Now, they have all been shown to have, in some way or another, an allegiance to another country, or the possible allegiance to another country, and under the constitution … you can’t have that allegiance to another country. The difference with Senator Roberts is, and I can state this honestly, he had no idea that he could have possibly been a British citizen, but he took steps prior to his nomination was put into actually renounce his citizenship. He may be criticised for actually maybe sending it to the wrong address, but the whole fact is he followed that up again. Now, at least he took steps. What did the other political parties do, or the other candidates do? Nothing. Absolutely nothing. So, what I’m saying is that if one has to go, they should all go.” | |
| Updated | |
| at 2.50am BST | |
| 2.36am BST | |
| 02:36 | |
| Donaghue says the government does not want to suggest a misguided belief or wrong belief is reasonable. He says that being born in a foreign country, or travelling on another country’s passport or documentation, should be enough to ensure there are checks. | |
| Larissa Waters is a complication to this argument, but the government has argued that she did have reason to believe that she did not receive Canadian citizenship, despite being born there. | |
| Updated | |
| at 2.40am BST | |
| 2.32am BST | |
| 02:32 | |
| We are back to Sykes v Cleary – but how it applies to Ludlam and Roberts. Donaghue argues that having a reasonable consideration there could be potential for foreign citizenship and not doing anything, or taking the necessary steps, could be interpreted as taking a voluntary or active step – to do nothing. | |
| Ludlam became an Australian citizen as a teenager and believed that automatically cancelled out his New Zealand citizenship. Roberts arrived in Australia from India as a seven-year-old, with a Welsh-born father, and became an Australian citizen as a teenager. That is why the government is arguing they had reason to check. | |
| Updated | |
| at 2.38am BST | |
| 2.27am BST | 2.27am BST |
| 02:27 | 02:27 |
| "If one goes, they must all go"- Pauline Hanson on MPs before the High Court, not certain that's how it works | "If one goes, they must all go"- Pauline Hanson on MPs before the High Court, not certain that's how it works |
| 2.17am BST | 2.17am BST |
| 02:17 | 02:17 |
| Donaghue’s argument has the justices engaged over what it would mean for Sykes v Cleary. | Donaghue’s argument has the justices engaged over what it would mean for Sykes v Cleary. |
| The government doesn’t want to go as far to say the court got it wrong in 1992 – indeed, part of their argument against Ludlam and Roberts relies on the Sykes judgement. | The government doesn’t want to go as far to say the court got it wrong in 1992 – indeed, part of their argument against Ludlam and Roberts relies on the Sykes judgement. |
| But it does pose some questions over where this argument sits. The solicitor general wants the court to focus on the intention of section 44 when it was being written, which he admits does not have a “perfect alignment” with his submission. | But it does pose some questions over where this argument sits. The solicitor general wants the court to focus on the intention of section 44 when it was being written, which he admits does not have a “perfect alignment” with his submission. |
| He doesn’t say it’s the vibe, but we’re all thinking it. | He doesn’t say it’s the vibe, but we’re all thinking it. |
| Updated | Updated |
| at 2.21am BST | at 2.21am BST |
| 2.12am BST | 2.12am BST |
| 02:12 | 02:12 |
| Lunchtime summary | Lunchtime summary |
| Solicitor general Stephen Donaghue is still working his way through his history lesson on the drafting of the constitution, so we’ll take the opportunity to sum up what we have learnt so far: | Solicitor general Stephen Donaghue is still working his way through his history lesson on the drafting of the constitution, so we’ll take the opportunity to sum up what we have learnt so far: |
| The government maintains that Barnaby Joyce, Fiona Nash, Matt Canavan, Larissa Waters and Nick Xenophon have similar cases. | The government maintains that Barnaby Joyce, Fiona Nash, Matt Canavan, Larissa Waters and Nick Xenophon have similar cases. |
| Donaghue argues none of them had reason to suspect they may hold foreign citizenship, and therefore did not have reason to check before they nominated. | Donaghue argues none of them had reason to suspect they may hold foreign citizenship, and therefore did not have reason to check before they nominated. |
| The government submits that section 44 was never intended to catch parliamentarians like those five MPs, as none had actively attempted to obtain or retain their citizenship. | The government submits that section 44 was never intended to catch parliamentarians like those five MPs, as none had actively attempted to obtain or retain their citizenship. |
| Scott Ludlam and Malcolm Roberts did have reason to suspect they could have foreign citizenship ties according to the government and therefore had a responsibility to thoroughly check before their nomination. Their failure to do so is why they should be found ineligible to have been elected. | Scott Ludlam and Malcolm Roberts did have reason to suspect they could have foreign citizenship ties according to the government and therefore had a responsibility to thoroughly check before their nomination. Their failure to do so is why they should be found ineligible to have been elected. |
| Donaghue wants the court to interpret section 44 through its “operational purpose” which he says, required some sort of action to obtain or retain citizenship, not the literal wording. | Donaghue wants the court to interpret section 44 through its “operational purpose” which he says, required some sort of action to obtain or retain citizenship, not the literal wording. |
| That would narrow the view of Sykes v Cleary, the 1992 case which has set out much of how the court interprets section 44. | That would narrow the view of Sykes v Cleary, the 1992 case which has set out much of how the court interprets section 44. |
| Updated | Updated |
| at 2.14am BST | at 2.14am BST |
| 1.57am BST | 1.57am BST |
| 01:57 | 01:57 |
| We are now taking a trip down memory lane to the Queen’s jubilee in 1897, when a colonial conference was held. A draft of the Australian constitution was presented at this conference and the British authorities got a look at it. | We are now taking a trip down memory lane to the Queen’s jubilee in 1897, when a colonial conference was held. A draft of the Australian constitution was presented at this conference and the British authorities got a look at it. |
| There were some questions, Donaghue says, about the draft, and some “friendly” suggestions about how to improve the draft, including in regards to citizenship. | There were some questions, Donaghue says, about the draft, and some “friendly” suggestions about how to improve the draft, including in regards to citizenship. |
| John Bradley Hirst wrote about some of it in his book, Looking for Australia: Historical Essays. | John Bradley Hirst wrote about some of it in his book, Looking for Australia: Historical Essays. |
| But Donaghue is interrupted. Justice James Edelman wants to know why Donaghue is bringing up these drafts, given the constitution wasn’t, for all intents and purposes, a public document at the time. | But Donaghue is interrupted. Justice James Edelman wants to know why Donaghue is bringing up these drafts, given the constitution wasn’t, for all intents and purposes, a public document at the time. |
| Donaghue says he is bringing it up as the historical context provides some reasons for the change, but that there is nothing to suggest there was an intention to bring about the situation we see today. | Donaghue says he is bringing it up as the historical context provides some reasons for the change, but that there is nothing to suggest there was an intention to bring about the situation we see today. |
| Updated | Updated |
| at 1.59am BST | at 1.59am BST |
| 1.48am BST | 1.48am BST |
| 01:48 | 01:48 |
| Donaghue says that looking at the history of section 44, it was focused on “voluntarily acquisition” of foreign citizenship. | Donaghue says that looking at the history of section 44, it was focused on “voluntarily acquisition” of foreign citizenship. |
| “It is relevant to keep in mind the target [of the provision] as it was framed and operated”. | “It is relevant to keep in mind the target [of the provision] as it was framed and operated”. |
| Updated | Updated |
| at 1.57am BST | at 1.57am BST |
| 1.38am BST | 1.38am BST |
| 01:38 | 01:38 |
| Going back 30 years before the constitution commenced, Donaghue says the law made distinctions between those who actively applied/obtained foreign citizenship and those who did not. | Going back 30 years before the constitution commenced, Donaghue says the law made distinctions between those who actively applied/obtained foreign citizenship and those who did not. |
| He says if you were naturalised and became a British subject, you became entitled to the rights and privileges of a citizen, which is the language used in section 44. He argues that it took being actively naturalised to get those rights – they weren’t automatically applied through citizenship. | He says if you were naturalised and became a British subject, you became entitled to the rights and privileges of a citizen, which is the language used in section 44. He argues that it took being actively naturalised to get those rights – they weren’t automatically applied through citizenship. |
| Updated | Updated |
| at 1.39am BST | at 1.39am BST |
| 1.33am BST | 1.33am BST |
| 01:33 | 01:33 |
| The solicitor general has just taken us through a thrilling history of section 44. I don’t want you to get too excited so I’ll save you the nitty-gritty (it is still early, after all) but basically Donaghue was arguing the section was not created for the situation we find ourselves in today. | The solicitor general has just taken us through a thrilling history of section 44. I don’t want you to get too excited so I’ll save you the nitty-gritty (it is still early, after all) but basically Donaghue was arguing the section was not created for the situation we find ourselves in today. |
| That comes back to the core of the government’s argument – that if you don’t actively seek out foreign citizenship or do anything active to retain it, and don’t have reasonable suspicions you could be a foreign citizen, then you can’t be in breach of section 44. | That comes back to the core of the government’s argument – that if you don’t actively seek out foreign citizenship or do anything active to retain it, and don’t have reasonable suspicions you could be a foreign citizen, then you can’t be in breach of section 44. |
| Updated | Updated |
| at 1.38am BST | at 1.38am BST |
| 1.23am BST | 1.23am BST |
| 01:23 | 01:23 |
| Donaghue brings up that the British parliament allows dual citizens – as long as they were natural born subjects. | Donaghue brings up that the British parliament allows dual citizens – as long as they were natural born subjects. |
| “The target is not being a dual citizen, it is actively seeking out foreign citizenship” which was identified as being inconsistent with sitting in parliament, he argues. | “The target is not being a dual citizen, it is actively seeking out foreign citizenship” which was identified as being inconsistent with sitting in parliament, he argues. |
| Updated | Updated |
| at 1.26am BST | at 1.26am BST |
| 1.16am BST | 1.16am BST |
| 01:16 | 01:16 |
| Donaghue is now summarising citizenship laws – for both Australia and some of the foreign powers in question. | 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. | We’re currently in 18th century British law. |
| Updated | Updated |
| at 1.19am BST | at 1.19am BST |
| 1.09am BST | 1.09am BST |
| 01:09 | 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. | 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. | 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 | Updated |
| at 1.10am BST | at 1.10am BST |
| 1.06am BST | 1.06am BST |
| 01:06 | 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. | 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. | 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? | 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 | Updated |
| at 1.09am BST | at 1.09am BST |
| 1.02am BST | 1.02am BST |
| 01:02 | 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. | 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. | 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. | 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. | “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. | 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. | 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 | Updated |
| at 1.10am BST | at 1.10am BST |
| 12.52am BST | 12.52am BST |
| 00:52 | 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. | 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. | 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 | Updated |
| at 12.58am BST | at 12.58am BST |
| 12.46am BST | 12.46am BST |
| 00:46 | 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. | 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. | 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. | 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. | 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. | 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. | “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. | 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 | Updated |
| at 1.16am BST | at 1.16am BST |