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| Version 3 | Version 4 |
|---|---|
| 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) | |
| 2.46am BST | |
| 02:46 | |
| The court adjourns for lunch | |
| And with that, we are on break. | |
| We’ll see you back just after 2pm. | |
| Any questions in the mean time - find me at @amyremeikis and I’ll do my best to answer as I gulp down some more coffee. | |
| 2.44am BST | |
| 02:44 | |
| The high court is now talking about feelings. | |
| In an argument which is sure to make Malcolm Roberts’s ears prick up, the bench is asking about over whether allegiance is a “feeling” and, if you don’t know you are a citizen, then you can’t feel that allegiance It’s based on a prior argument from a section 44 case. | |
| Gleeson says the “disability arises from the status - the status applies allegiance”. He argues that to shed that allegiance, one must renounce the citizenship - or at least take steps to do so. | |
| Joyce, he argues, did not. Bret Walker argued yesterday, on behalf of Barnaby Joyce and Fiona Nash that if you didn’t know you were a citizen of another nation, then you couldn’t have a split loyalty. | |
| Gleeson, disagrees. | |
| Mr Walker says this all hinges on felt allegiance...’I can’t feel it if I don’t know it’ - that his is case,” he says. | |
| “Our case is what section 44 has done is seize on the status. | |
| Gleeson’s argues that section 44 was not set out as an inquiry into the particular laws adopted by a foreign nation, or what someone thinks or feels or knows, but that the “fact of the allegiance is what creates the risk you will not have the single allegiance to the parliament of Australia.” | |
| 2.29am BST | |
| 02:29 | |
| Gleeson’s argument, on behalf of Windsor, is based on what they say is no applicable exception for Joyce under section 44. It is complimentary to what Walters was saying on behalf of Waters and Ludlam – that in situations where someone knows they have a foreign-born parent, than “he or she ought prior to nominating as a candidate for election to parliament, make enquiries and then renounce any foreign citizenship held”. | |
| The bench is largely quiet – there have been a couple of questions over the issue of natural-born Australians v foreign-born Australians (which, as we know, was not covered in Sykes v Cleary and has been one of the sticking points) and how Gleeson interprets it. | |
| Gleeson’s manner is relaxed and steady, and answers questions in the same tone of voice one would use to explain an operating system to a new colleague. | |
| Updated | |
| at 2.31am BST | |
| 2.20am BST | |
| 02:20 | |
| Gleeson gets straight to the point – he says that Joyce should have taken reasonable steps before the most recent election (and, one could argue every election before 2004, when he was first elected as a Queensland senator) and didn’t, and was therefore ineligible. | |
| Updated | |
| at 2.23am BST | |
| 2.19am BST | |
| 02:19 | |
| Walters rests. Former SG begins argument for Tony Windsor | |
| Well, that was a whirlwind. | |
| But Brian Walters has concluded. And a familiar face has the floor – former solicitor general Justin Gleeson is representing Tony Windsor in his challenge against Barnaby Joyce. | |
| A murmur of recognition filters through the overflow court – the breakdown of Gleeson’s relationship with the attorney general, George Brandis, has become the stuff of legend. | |
| Updated | |
| at 2.22am BST | |
| 2.10am BST | 2.10am BST |
| 02:10 | 02:10 |
| Walters is arguing his clients’ case – that they were both in the wrong. | 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. | 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. |
| Updated | Updated |
| at 2.14am BST | at 2.14am BST |
| 2.03am BST | 2.03am BST |
| 02:03 | 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. | 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]”. | 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 | 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. | 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. | 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. | 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]. | 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]. |
| Updated | Updated |
| at 2.11am BST | at 2.11am BST |
| 1.48am BST | 1.48am BST |
| 01:48 | 01:48 |
| The bench is asking Walters whether he is asking the court to take a “literal interpretation” of section 44. | 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. | 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. | 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. | 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. | 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”. | 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. | This is where we get into the new law these cases could be creating. |
| Updated | Updated |
| at 1.52am BST | at 1.52am BST |
| 1.39am BST | 1.39am BST |
| 01:39 | 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. | 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”. | The foundation of this argument seems to be that “negligence should never produce a more favourable result than diligence”. |
| Updated | Updated |
| at 1.47am BST | at 1.47am BST |
| 1.33am BST | 1.33am BST |
| 01:33 | 01:33 |
| 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 – that 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. |
| Updated | Updated |
| at 1.50am BST | at 1.50am BST |
| 1.22am BST | 1.22am BST |
| 01:22 | 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. | The court seems a little confused over these arguments – and whether Walters is asking for the court to find his clients were negligent. |
| Updated | Updated |
| at 1.27am BST | at 1.27am BST |
| 1.20am BST | 1.20am BST |
| 01:20 | 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). | 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?” |
| Updated | Updated |
| at 1.48am BST | at 1.48am BST |