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You can find the current article at its original source at https://www.theguardian.com/australia-news/live/2017/oct/11/mps-dual-citizenship-case-high-court-sits-for-second-day-live
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| Version 1 | Version 2 |
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| MPs' dual citizenship case: high court sits for second day – live | MPs' dual citizenship case: high court sits for second day – live |
| (35 minutes later) | |
| 1.33am BST | |
| 01:33 | |
| Walters seems a little shaken. | |
| The justices, led by Kiefel, have cut down any arguments that his clients were right, as not a particularly good use of the court’s time. | |
| His arguments based over whether the MPs should have known to have at least investigate their circumstances (he is not suggesting the MPs were not honest when they submitted they had no idea of citizenship conflicts, but that they were careless because they had reason to check, given their families backgrounds) have been all but dismissed. | |
| The bench wants law, not subjective examples, is the take away. | |
| It’s a strange position to be in - while everyone else before the court is making cases for why they should be found eligible to have been elected, the Greens are arguing they were ineligible - and therefore everyone else is as well. | |
| 1.22am BST | |
| 01:22 | |
| The court seems a little confused over these arguments – and whether Walters is asking for the court to find his clients were negligent. | |
| Updated | |
| at 1.27am BST | |
| 1.20am BST | |
| 01:20 | |
| Walters says that Ludlam knew he had been born in New Zealand (he naturalised as an Australian as a teenager) and Waters knew she had been born in Canada (she left when she was 11 months old). | |
| He brings that up, because he is arguing that there are reasonable expectations for MPs to check before they nominate. | |
| He then asks “what is reasonable” for someone to know, in regards to their family history. | |
| The bench is giving him a fairly hard time. They are hammering every point Walters is making. | |
| Kiefel cuts in again – “Is it a proper use of this court’s time to argue for a vindication of their correctness?” | |
| Updated | |
| at 1.28am BST | |
| 1.16am BST | |
| 01:16 | |
| Walters begins by talking about his clients and how they have handled this situation but is very quickly shut down by chief justice Susan Kiefel, who suggests he get to the legal argument. | |
| He does so – arguing in favour of Sykes v Cleary, in terms of where it fell down on foreign citizenship. He adds to it – arguing that while the 1992 case dealt with someone who knew they had foreign citizenship, these cases add that, for candidates, there is a “duty not really to be honest but careful”. | |
| So far he has not been able to get out more than five or so sentences before a justice breaks in with questions. | |
| Updated | |
| at 1.17am BST | |
| 1.11am BST | |
| 01:11 | |
| Andrew Tokley wraps up ... now for the Greens | |
| Tokley has taken his seat and Brian Walters steps up. | |
| The former candidate for the Greens in Melbourne, Walters is arguing on behalf of Scott Ludlam and Larissa Waters. | |
| It’s the first time we have heard a dissenting argument in this case – Waters and Ludlam, who both resigned upon learning of their citizenship conflicts, maintain they were right to do so – and everyone else involved in these proceedings should have as well. | |
| They submit that ignorance of your citizenship circumstances, or “carelessness” in not checking before nominating, should not excuse you from your responsibilities. | |
| Updated | |
| at 1.18am BST | |
| 1.04am BST | 1.04am BST |
| 01:04 | 01:04 |
| The case has moved on to duty of loyalty (to the Queen) which comes with UK citizenship. | |
| Tokley says there is no evidence of duty of loyalty with Xenophon and he has taken “no formal step” in that direction. | Tokley says there is no evidence of duty of loyalty with Xenophon and he has taken “no formal step” in that direction. |
| Given the Queen is also Australia’s head of state, it is a little difficult to see how there could be a split allegiance. | |
| Updated | |
| at 1.19am BST | |
| 12.59am BST | 12.59am BST |
| 00:59 | 00:59 |
| There are also differences between registered British overseas citizen and non-registered British overseas citizens. Xenophon was an unknown British overseas citizen, until very recently, Tokley says. | There are also differences between registered British overseas citizen and non-registered British overseas citizens. Xenophon was an unknown British overseas citizen, until very recently, Tokley says. |
| The justices are not asking a lot of questions. They have had the submissions, as well as a copy of the arguments ahead of time, and these proceedings, with the high court sitting as the court of disputed returns, are basically to clarify any of the issues which have popped up in those arguments. | The justices are not asking a lot of questions. They have had the submissions, as well as a copy of the arguments ahead of time, and these proceedings, with the high court sitting as the court of disputed returns, are basically to clarify any of the issues which have popped up in those arguments. |
| But so far, everyone stating their case has been able to do so with minimal interruptions from the bench. Take from that what you will. | But so far, everyone stating their case has been able to do so with minimal interruptions from the bench. Take from that what you will. |
| 12.53am BST | 12.53am BST |
| 00:53 | 00:53 |
| Entering into UK law now, Tokley says that it too distinguishes between British citizenship and British overseas citizenship. | Entering into UK law now, Tokley says that it too distinguishes between British citizenship and British overseas citizenship. |
| The EU too, apparently, draws a distinction. | The EU too, apparently, draws a distinction. |
| Tokley argues that if those jurisdictions have seen fit to mark the difference, in that they recognise they do not have the same rights, than the Australian courts should find the same. | Tokley argues that if those jurisdictions have seen fit to mark the difference, in that they recognise they do not have the same rights, than the Australian courts should find the same. |
| He says Xenophon is not entitled to British consulate help either. | He says Xenophon is not entitled to British consulate help either. |
| Essentially, the argument is that Xenophon is not a dual citizen. | Essentially, the argument is that Xenophon is not a dual citizen. |
| 12.44am BST | 12.44am BST |
| 00:44 | 00:44 |
| David Bennett rests, opening the way for Nick Xenophon's argument | David Bennett rests, opening the way for Nick Xenophon's argument |
| Bennett rests and Andrew Tokley has the floor to begin arguing on behalf of Nick Xenophon. | Bennett rests and Andrew Tokley has the floor to begin arguing on behalf of Nick Xenophon. |
| The South Australian senator (for now, given he has announced plans to resign) has a slightly different case again. | The South Australian senator (for now, given he has announced plans to resign) has a slightly different case again. |
| He spoke to the Greek and Cypriot authorities to renounce any citizenship he may have inherited from his parents before he came to the senate. | He spoke to the Greek and Cypriot authorities to renounce any citizenship he may have inherited from his parents before he came to the senate. |
| But Cyprus was a British territory until 1960. Xenophon’s dad left in 1959. If he had left after Cyprus gained its independence, Xenophon wouldn’t be on the hearing list today. But because he left before, he retained a sub-tier of UK citizenship – British overseas citizen. | But Cyprus was a British territory until 1960. Xenophon’s dad left in 1959. If he had left after Cyprus gained its independence, Xenophon wouldn’t be on the hearing list today. But because he left before, he retained a sub-tier of UK citizenship – British overseas citizen. |
| Tokley argues the “core meaning of being a citizen is having the right of entry and right of abode ... and absent that core meaning, that person is not really a citizen”. | Tokley argues the “core meaning of being a citizen is having the right of entry and right of abode ... and absent that core meaning, that person is not really a citizen”. |
| A British overseas citizen does not have the right of entry, or the right of abode in the UK. | A British overseas citizen does not have the right of entry, or the right of abode in the UK. |
| Therefore, Tokley says, Xenophon is not really a dual citizen and could not have split loyalties. | Therefore, Tokley says, Xenophon is not really a dual citizen and could not have split loyalties. |
| Updated | Updated |
| at 12.46am BST | at 12.46am BST |
| 12.36am BST | 12.36am BST |
| 00:36 | 00:36 |
| Bennett is now going through the number of Australians who potentially hold dual citizenship. | Bennett is now going through the number of Australians who potentially hold dual citizenship. |
| No surprise, given how Australia was settled and on-going multiculturalism policies, it’s a high number - 41 per cent. That marries up with the latest census findings which found that just under half of all Australians were either born overseas, or their parents were. | No surprise, given how Australia was settled and on-going multiculturalism policies, it’s a high number - 41 per cent. That marries up with the latest census findings which found that just under half of all Australians were either born overseas, or their parents were. |
| But Bennett argues that is bad news for Australians who want to enter parliament, as it would lead to a “genealogical witch hunt” as there have always been people who ‘want to remove’ parliamentarians. He brings up children of single mothers who may not know their fathers, or their history, and how, they could potentially also be disqualified, if it was revealed their father held a foreign citizenship which could be passed down by descent. | But Bennett argues that is bad news for Australians who want to enter parliament, as it would lead to a “genealogical witch hunt” as there have always been people who ‘want to remove’ parliamentarians. He brings up children of single mothers who may not know their fathers, or their history, and how, they could potentially also be disqualified, if it was revealed their father held a foreign citizenship which could be passed down by descent. |
| I’ve heard that argument before, but I think it has a slight flaw in that if the father wasn’t never listed on the birth certificate, but in any case, that particular scenario isn’t relevant to any of the seven cases we’re watching today. | I’ve heard that argument before, but I think it has a slight flaw in that if the father wasn’t never listed on the birth certificate, but in any case, that particular scenario isn’t relevant to any of the seven cases we’re watching today. |
| 12.29am BST | 12.29am BST |
| 00:29 | 00:29 |
| Bennett is also focussed on the concept of “indefinite citizenship by descent” that Italy provides, which he says is “offensive” to the constitution and should not be applied. | Bennett is also focussed on the concept of “indefinite citizenship by descent” that Italy provides, which he says is “offensive” to the constitution and should not be applied. |
| As we heard yesterday (and have learnt through this process) Italian citizenship is handed down through the generations, as long as the chain remains unbroken – that being, as long as no descendent has renounced their citizenship. | As we heard yesterday (and have learnt through this process) Italian citizenship is handed down through the generations, as long as the chain remains unbroken – that being, as long as no descendent has renounced their citizenship. |
| Updated | Updated |
| at 12.44am BST | at 12.44am BST |
| 12.27am BST | 12.27am BST |
| 00:27 | 00:27 |
| David Bennett is back and is working through Italian law and how it applies to Matt Canavan. He goes through the history of Canavan’s grandmother and mother and says that, when his grandmother naturalised, she attempted to also naturalise her daughter. | David Bennett is back and is working through Italian law and how it applies to Matt Canavan. He goes through the history of Canavan’s grandmother and mother and says that, when his grandmother naturalised, she attempted to also naturalise her daughter. |
| But the entry with Canavan’s mother’s name, Bennett says, was scrubbed out, presumably by a clerk, with a note that she was Australian born and it wasn’t needed. | But the entry with Canavan’s mother’s name, Bennett says, was scrubbed out, presumably by a clerk, with a note that she was Australian born and it wasn’t needed. |
| That was brought up to highlight some of the complexities of the case. | That was brought up to highlight some of the complexities of the case. |
| Updated | Updated |
| at 12.42am BST | at 12.42am BST |
| 12.15am BST | 12.15am BST |
| 00:15 | 00:15 |
| Good morning and welcome to day two of the citizenship hearings | Good morning and welcome to day two of the citizenship hearings |
| There was quite a lot of information to take in yesterday and we have even more to disseminate today, so I hope you’ve had a substantive breakfast – or at least a strong cup of coffee. | There was quite a lot of information to take in yesterday and we have even more to disseminate today, so I hope you’ve had a substantive breakfast – or at least a strong cup of coffee. |
| If you need to catch up on the day’s events, you can find the transcript of yesterday’s proceedings here. | If you need to catch up on the day’s events, you can find the transcript of yesterday’s proceedings here. |
| But if you don’t have that much time – and let’s be honest, who does – my colleague Paul Karp wrote an excellent wrap of the day’s proceedings, which you’ll find here. | But if you don’t have that much time – and let’s be honest, who does – my colleague Paul Karp wrote an excellent wrap of the day’s proceedings, which you’ll find here. |
| We heard from the solicitor general, Stephen Donaghue, and barristers Bret Walker and David Bennett yesterday, who were arguing on behalf of the government, Barnaby Joyce, Fiona Nash and Matt Canavan. All those arguments touched on the other four MPs involved in these cases – Larissa Waters, Nick Xenophon, Scott Ludlam and Malcolm Roberts – but we are yet to hear their substantive arguments. | We heard from the solicitor general, Stephen Donaghue, and barristers Bret Walker and David Bennett yesterday, who were arguing on behalf of the government, Barnaby Joyce, Fiona Nash and Matt Canavan. All those arguments touched on the other four MPs involved in these cases – Larissa Waters, Nick Xenophon, Scott Ludlam and Malcolm Roberts – but we are yet to hear their substantive arguments. |
| We’ll get to that – and to the former New England MP Tony Windsor, who is challenging Joyce’s eligibility, over the coming days. | We’ll get to that – and to the former New England MP Tony Windsor, who is challenging Joyce’s eligibility, over the coming days. |
| But we still have more to hear on Canavan’s case. When the court adjourned yesterday, Bennett was just getting started on his interpretation of section 44, so prepare for excitement overloads. | But we still have more to hear on Canavan’s case. When the court adjourned yesterday, Bennett was just getting started on his interpretation of section 44, so prepare for excitement overloads. |
| I’ll be sitting in the high court overflow court all day, so if you have any burning questions you can hit me up on Twitter @amyremeikis and of course there is also the comment stream, which I will do my best to browse through as the day goes on. | I’ll be sitting in the high court overflow court all day, so if you have any burning questions you can hit me up on Twitter @amyremeikis and of course there is also the comment stream, which I will do my best to browse through as the day goes on. |
| Let’s begin! | Let’s begin! |
| Updated | Updated |
| at 12.41am BST | at 12.41am BST |