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Version 2 Version 3
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)
2.10am BST
02:10
Walters is arguing his clients’ case – that they were both in the wrong.
He says they acknowledge that they both should have done their checks, despite thinking that naturalisation extinguished any foreign citizenship. It comes back to what he is arguing is reasonable for a person to check before signing the candidate’s form declaring they were eligible to be elected.
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02:03
Walters said there was “no reason in principle” for the reasonable-steps test to be differentiated between foreign-born and Australian-born citizens.
He is again asked about its relevancy to Sykes v Cleary and how it applies here. He said that’s the same issue the attorney general had, as “it seems to be accepted by the attorney general that if one has some knowledge of foreign citizenship status ... albeit, one was born in Australia and has it by descent, then one still has the obligation under Sykes v Cleary [to take reasonable steps to renounce]”.
If Sykes v Cleary applies in terms of the qualification, then it must apply in terms of reasonable steps to any person who has knowledge of the facts ought to have prompted proper enquiry
Candidates – nominees for the high office of the parliamentarian – have a duty at [least at a] general level to comply with the constitution.
He says that “crystallises in a certain act” when they nominate – by signing the candidate form, which says they comply with section 44.
It is a simple task that should not be overlooked to make inquiries ... not merely [to be] honest, but accurate or, should we say, that they are diligent to be accurate or careful to be accurate.
If one is to give a coherent interpretation to the section as it has been applied to for Sykes v Cleary, which was relied upon for Sue v Hill ... then it is our submission [that] it is difficult to see where one can avoid a situation where a person who knows facts that could relate to a potential conflict with section 44 and doesn’t take steps to address it, [flies in the face of the reasonable-steps precedent].
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01:48
The bench is asking Walters whether he is asking the court to take a “literal interpretation” of section 44.
He says that he is dealing with what was set down by Sykes v Cleary.
The bench jumps in again to point out that Sykes did not deal with the same situation, in that it was looking at a case where the foreign citizenship was known – not natural-born Australians who have received citizenship by descent.
Walters concedes that is true. But he falls back on the reasonable-steps argument that was set down by the 92 case – and that none of these MPs took those reasonable steps.
He says the attorney general has accepted that the MPs involved had foreign citizenship conflicts in his submission, and Ludlam and Waters argue they should have taken reasonable steps.
But Kiefel says again the case was different, because in Sykes, they knew. And the bench, in that case, did not address the “question of knowledge”.
This is where we get into the new law these cases could be creating.
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01:39
Walters has found his flow again. He, with a little laugh, accepted that the court “can’t vindicate our clients” (and indeed, that is not his arguments intention, although I’m sure the Greens would be happy to take a little vindication if it is on offer) and has moved on to arguing section 44 and assisting the court in its interpretation of section 44 – providing the contrary view to what we have heard so far.
The foundation of this argument seems to be that “negligence should never produce a more favourable result than diligence”.
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1.33am BST1.33am BST
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Walters seems a little shaken.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.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. 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. The bench wants law, not subjective examples – that 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. 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.
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The court seems a little confused over these arguments – and whether Walters is asking for the court to find his clients were negligent.The court seems a little confused over these arguments – and whether Walters is asking for the court to find his clients were negligent.
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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).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 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.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.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?” Kiefel cuts in again: “Is it a proper use of this court’s time to argue for a vindication of their correctness?”
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01:1601:16
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.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”.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.So far he has not been able to get out more than five or so sentences before a justice breaks in with questions.
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Andrew Tokley wraps up ... now for the GreensAndrew Tokley wraps up ... now for the Greens
Tokley has taken his seat and Brian Walters steps up.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.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.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.They submit that ignorance of your citizenship circumstances, or “carelessness” in not checking before nominating, should not excuse you from your responsibilities.
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The case has moved on to duty of loyalty (to the Queen) which comes with UK citizenship.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.Given the Queen is also Australia’s head of state, it is a little difficult to see how there could be a split allegiance.
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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 that 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.
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12.53am BST12.53am BST
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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 BST12.44am BST
00:4400:44
David Bennett rests, opening the way for Nick Xenophon's argumentDavid 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.
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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 ongoing multiculturalism policies, it’s a high number – 41 per cent. That marries up with the latest census findings that 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.
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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.
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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.
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Good morning and welcome to day two of the citizenship hearingsGood 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!
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