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Citizenship case: high court considers MPs' eligibility – live
Citizenship case: high court considers MPs' eligibility – live
(35 minutes later)
5.27am BST
05:27
Reasonable steps are “not your state of mind, its what you do,” Walker clarifies under questioning.
5.23am BST
05:23
“Once one knows then we submit the disqualification rules apply, unless you can point to having done everything you can do reasonably,” Walker says.
Walker says the choice of what to do then, before entering parliament, only applies to one who knows they have it.
Skyes v Cleary is up again, because that is the case which set out those reasonable steps to divest a candidate of any foreign citizenship political parties have relied on since 1992 when it comes to this stuff.
But Walker is arguing that if you didn’t know you were a foreign citizen, then you couldn’t be expected to take reasonable steps, because you didn’t know they were necessary.
That is essentially what the government has set out as well.
5.19am BST
05:19
Walker, on behalf of his clients, is arguing that section 44 was designed for those who knew of their foreign citizenship and did nothing to renounce it.
“It is knowledge of foreign citizenship that is the key. That is the key,” he says, under questioning of the justices.
Again - this may be the point that the whole seven cases rest on.
5.14am BST
05:14
Walker is essentially fleshing out his two main points. First, that citizenship by descent should be considered differently because “it is not like the place of one’s birth” and the different foreign laws which govern who is a citizen by descent and who is not.
His main second point is if you didn’t know you were a foreign citizen, then you didn’t really have split loyalties and could not have been expected to take the steps to renounce it. So the argument is not so much ignorance of the law, or the constitution, but ignorance of your own citizenship circumstances.
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5.09am BST
05:09
We are back on the history of section 44, with Walker saying the eventual final words used in the constitution were for those who knew of their foreign citizenship and did nothing to renounce it.
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05:05
Walker says there is “no split allegiance when you are not aware of one of them”.
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04:59
For those playing along at home - here is a list of counsel appearing for the citizenship cases (the Commonwealth is picking up the bill) pic.twitter.com/5dWNhxusqE
4.48am BST
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04:48
04:48
Walker does concede that Australians who, for some reason, have no ambition to enter parliament, may see dual citizenship as a “boon, not a burden”.
Walker does concede that Australians who, for some reason, have no ambition to enter parliament, may see dual citizenship as a “boon, not a burden”.
4.47am BST
4.47am BST
04:47
04:47
Walker is now talking about citizenship by descent. He says he has not found anything in the citizenship by descent cases, mentioning Joyce and Nash, that there is not a lot to contradict Australia’s laws.
Walker is now talking about citizenship by descent. He says he has not found anything in the citizenship by descent cases, mentioning Joyce and Nash, that there is not a lot to contradict Australia’s laws.
The citizenship by descent worked for only one generation, he says, for Joyce and Nash, unlike Canavan which was citizenship by “indefinite” descent.
The citizenship by descent worked for only one generation, he says, for Joyce and Nash, unlike Canavan which was citizenship by “indefinite” descent.
That’s a quick summary of the differences in foreign law the court is dealing with - New Zealand and the UK grant citizenship by descent to to the children of a citizen, where Italy allows it for as long as the descendent citizenship line remains unbroken. So if nonna or nonno renounced their Italian citizenship, then their children and grandchildren et al would not have received citizenship by descent.
That’s a quick summary of the differences in foreign law the court is dealing with – New Zealand and the UK grant citizenship by descent to to the children of a citizen, where Italy allows it for as long as the descendant citizenship line remains unbroken. So if Nonna or Nonno renounced their Italian citizenship, then their children and grandchildren et al would not have received citizenship by descent.
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4.41am BST
4.41am BST
04:41
04:41
The second part of the case Walker is contending is the “exorbitant” foreign citizenship laws.
The second part of the case Walker is contending is the “exorbitant” foreign citizenship laws.
In plain English, that is a reference to how five of the seven, at least as far as the government is concerned, were impacted by a foreign powers’ laws, having made no moves themselves to apply for that citizenship.
In plain English, that is a reference to how five of the seven, at least as far as the government is concerned, were impacted by a foreign power’s laws, having made no moves themselves to apply for that citizenship.
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4.37am BST
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04:37
04:37
Walker says it is clear Sykes v Cleary does not address people who were not aware of their foreign citizenship.
Walker says it is clear Sykes v Cleary does not address people who were not aware of their foreign citizenship.
“Why it is chiefly important in our case is because we say it is clear there was no knowledge” and thereby, they could not take the steps to renounce it, Walker says.
“Why it is chiefly important in our case is because we say it is clear there was no knowledge” and thereby, they could not take the steps to renounce it, Walker says.
I am paraphrasing here, but we are prohibited from recording high court proceedings.
I am paraphrasing here, but we are prohibited from recording high court proceedings.
Updated
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4.31am BST
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04:31
04:31
The solicitor-general has concluded
The solicitor-general has concluded
And with that, the solicitor-general Stephen Donaghue sits down.
And with that, the solicitor-general Stephen Donaghue sits down.
On to Bret Walker (who is considered a rock star in these circles).
On to Bret Walker (who is considered a rock star in these circles).
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04:30
04:30
He brings up the emails - including “the enquiry am I still a British citizen” as the subject line, which Roberts sent before he nominated for parliament.
He brings up the emails, including “the enquiry am I still a British citizen” as the subject line, which Roberts sent before he nominated for parliament.
He sent that email to .sydneyuk and when he didn’t get a reply, he sent another email saying he renounced his citizenship.
He sent that email to .sydneyuk and when he didn’t get a reply, he sent another email saying he renounced his citizenship.
Sending an email is not enough, Donaghue agrees - given there is a form and fee to return to the UK Home Office.
Sending an email is not enough, Donaghue agrees – given there is a form and fee to return to the UK Home Office.
Donaghue says the government submits that unless the high court decides to move away from Sykes v Cleary, it contends Roberts did not take reasonable steps to renounce his citizenship and should be disqualified.
Donaghue says the government submits that, unless the high court decides to move away from Sykes v Cleary, it contends Roberts did not take reasonable steps to renounce his citizenship and should be disqualified.
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4.27am BST
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04:27
04:27
Donaghue is back on Malcolm Roberts (page 1,279 of the submission he has put forward to the justices)
Donaghue is back on Malcolm Roberts (page 1,279 of the submission he has put forward to the justices).
He brings up how in May 1974, when he was 19, Roberts became an Australian citizen.
He brings up how in May 1974, when he was 19, Roberts became an Australian citizen.
“He was a British citizen and the suggestion that he was aware that he was a British citizen was confirmed by the terms ... that is a critical fact in circumstances that will apply [in whether or not someone should have taken reasonable steps],” Donaghue argues.
“He was a British citizen and the suggestion that he was aware that he was a British citizen was confirmed by the terms ... that is a critical fact in circumstances that will apply [in whether or not someone should have taken reasonable steps],” Donaghue argues.
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4.16am BST
04:16
Welcome back
The high court, sitting as the court of disputed returns, has returned from break.
Bret Walker, who is representing the three government MPs has ceded some time to Donaghue, so we have a little more from the government’s point of view to go.
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2.51am BST
02:51
Break time!
The court has adjourned 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.
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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.
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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.”
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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.
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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.
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2.27am BST
02:27
"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
02:17
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.
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.
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2.12am BST
02:12
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:
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.
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.
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.
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1.57am BST
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.
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.
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.
