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| MPs' dual citizenship case: high court sits for second day – as it happened | |
| (35 minutes later) | |
| 6.20am BST | |
| 06:20 | |
| The court has adjourned | |
| We have made it through the second day. One more to go – with Malcolm Roberts’s case to be discussed tomorrow morning when the court comes back just after 10am. | |
| Then the barristers will give their responses to the submissions we have heard over the last two days. | |
| Once that is all done and dusted, we await the decision. | |
| But first we have to get through the last of the arguments. | |
| Thank you to everyone for reading, taking the time to comment, or tweeting. I’ll have a look through tonight to see if there is anything I missed in terms of your questions. | |
| I hope to see you back here tomorrow morning. | |
| Have a great night. | |
| Updated | |
| at 6.23am BST | |
| 6.14am BST | |
| 06:14 | |
| Kennett is going over ground we have already heard – I promise you are not missing anything major. | |
| As to whether anyone found ineligible would have to pay back their earnings, convention would say no. When Waters and Ludlam stepped down, the Greens wrote to the government and asked that the convention, which has been granted to Rod Culleton and Bob Day as the most recent examples of MPs falling foul of section 44, be applied. | |
| The parliamentary pension most people think of is the defined benefit scheme – which provided about 75% of the current MP salary each year (with top ups) – but that doesn’t apply to anyone elected after 2004. | |
| Updated | |
| at 6.17am BST | |
| 6.04am BST | |
| 06:04 | |
| To answer another question – even though Larissa Waters, Scott Ludlam (and Nick Xenophon who has flagged his intention to leave regardless of the outcome) have resigned, the court still has to decide whether they were ever validly elected. If they were, then their resignations would spark a casual vacancy, not a count back to the next on the respective tickets. If they weren’t, then it is straight to the count back. | |
| Updated | |
| at 6.06am BST | |
| 5.59am BST | |
| 05:59 | |
| While Kennett does his thing, I’ll take the opportunity to answer a couple of questions which have popped up in the comments today. | |
| If, and it is still a big if, the high court, sitting as the court of disputed returns, finds some of the Senators were ineligible to be elected, the void positions would most likely be ceded to the next person on that party’s ticket. | |
| Those people are entitled to hold the seat. But party politics can always come into play and if they are encouraged to stand aside, then that creates a casual vacancy, which the political party in question can fill with anyone. Including anyone who had been found ineligible because of dual-citizenship, as long as they had since renounced it (and in this case, they all have). | |
| If Barnaby Joyce is found to have been ineligibly elected, as a lower house MP, the court would most likely set aside the election result – which means a byelection. Given its one seat majority in the house, you would imagine the government would set the date for that as soon as possible – which would be 33 days from when it issued the writs. | |
| Updated | |
| at 6.05am BST | |
| 5.49am BST | 5.49am BST |
| 05:49 | 05:49 |
| Windsor's counsel rests | Windsor's counsel rests |
| But we still have some time to go until we get to the last of these cases, Malcolm Roberts, with the court calling upon Geoffrey Kennett, who is acting as the amicus curiae. | |
| His job is not to act for anyone in particular, but help test the law, essentially providing an impartial and often broader interpretation of the laws being debated by either counsel, to help give the court some context or clear up some issues which may have been hinted at, but not expanded upon during arguments. | |
| In other words, it is the really, really dry parts of the legal argument. | In other words, it is the really, really dry parts of the legal argument. |
| Updated | |
| at 5.59am BST | |
| 5.39am BST | 5.39am BST |
| 05:39 | 05:39 |
| Merkel is summing up now – and he, like Gleeson, has made it through his submission with relatively few interruptions from the bench. | Merkel is summing up now – and he, like Gleeson, has made it through his submission with relatively few interruptions from the bench. |
| It is for those reasons that we say that the question should be answered in Mr Joyce’s case ... that his election should be completely void because by section 44 (i) he was incapable of being elected or sitting. | It is for those reasons that we say that the question should be answered in Mr Joyce’s case ... that his election should be completely void because by section 44 (i) he was incapable of being elected or sitting. |
| Merkel doesn’t drop a microphone, but his final full stop is felt. | Merkel doesn’t drop a microphone, but his final full stop is felt. |
| That doesn’t meant the court will accept his arguments though. | That doesn’t meant the court will accept his arguments though. |
| Updated | Updated |
| at 5.45am BST | at 5.45am BST |
| 5.35am BST | 5.35am BST |
| 05:35 | 05:35 |
| Fleshing out his argument now, Merkel says the history of section 44 was because of a concern over duelling allegiances. | Fleshing out his argument now, Merkel says the history of section 44 was because of a concern over duelling allegiances. |
| Gleeson had already laid out the case that split allegiances had nothing to do with feeling and everything to do with the status of citizenship. | Gleeson had already laid out the case that split allegiances had nothing to do with feeling and everything to do with the status of citizenship. |
| Merkel is now laying section 44’s history on top of that, and said other sections of the constitution also deal with allegiance. | Merkel is now laying section 44’s history on top of that, and said other sections of the constitution also deal with allegiance. |
| He says they didn’t write the word “knowingly” into section 44 (1) which is what the government is arguing should be the case. | He says they didn’t write the word “knowingly” into section 44 (1) which is what the government is arguing should be the case. |
| Updated | Updated |
| at 5.39am BST | at 5.39am BST |
| 5.24am BST | 5.24am BST |
| 05:24 | 05:24 |
| Merkel is arguing that the government’s submission would, if accepted, enact a change of “significant consequence” for how section 44 is interpreted and the authors of the constitution did intend for it to be, well, fairly literal. | Merkel is arguing that the government’s submission would, if accepted, enact a change of “significant consequence” for how section 44 is interpreted and the authors of the constitution did intend for it to be, well, fairly literal. |
| There is simply no warrant ... to read in concepts which are not really known in this area of law and totally contrary to hundreds of years [to the nature of the law which is apparent]. | There is simply no warrant ... to read in concepts which are not really known in this area of law and totally contrary to hundreds of years [to the nature of the law which is apparent]. |
| Updated | Updated |
| at 5.35am BST | at 5.35am BST |
| 5.14am BST | 5.14am BST |
| 05:14 | 05:14 |
| Ron Merkel has taken over the case on behalf of Windsor. | Ron Merkel has taken over the case on behalf of Windsor. |
| He is all about section 44. We are now getting the contrary history of section 44. | He is all about section 44. We are now getting the contrary history of section 44. |
| That has come about because of the amount of time spent on the history of section 44 yesterday by the government and Joyce and Nash’s counsel, where they argued that those who wrote the constitution never meant for the section to be applied this way. | That has come about because of the amount of time spent on the history of section 44 yesterday by the government and Joyce and Nash’s counsel, where they argued that those who wrote the constitution never meant for the section to be applied this way. |
| Merkel argues they did intend section 44 to stop dual citizens and if they didn’t, they could have changed other sections to clarify that. | Merkel argues they did intend section 44 to stop dual citizens and if they didn’t, they could have changed other sections to clarify that. |
| Updated | Updated |
| at 5.36am BST | at 5.36am BST |
| 5.04am BST | 5.04am BST |
| 05:04 | 05:04 |
| Back on allegiance and why it matters. | Back on allegiance and why it matters. |
| Gleeson is talking about how a parliamentarian with dual nationality with New Zealand, especially a minister, could face conflict when issues regarding New Zealand were being discussed, which, given the close nature of Australia and New Zealand’s relationship, is not outside the realm of possibility 0– placing doubt over loyalties. | Gleeson is talking about how a parliamentarian with dual nationality with New Zealand, especially a minister, could face conflict when issues regarding New Zealand were being discussed, which, given the close nature of Australia and New Zealand’s relationship, is not outside the realm of possibility 0– placing doubt over loyalties. |
| He said that allowing the argument of “I didn’t check, so I didn’t know” would create a situation: | He said that allowing the argument of “I didn’t check, so I didn’t know” would create a situation: |
| where the parliament may consist of any number of dual citizens ... if a person is diligent and makes enquiries to their status and acquires appropriate advice ... they hit the tripwire of knowledge, they face the horns of dilemma ... but if not ... a person is perfectly entitled to say I rest on the knowledge of no knowledge of my citizenship. | where the parliament may consist of any number of dual citizens ... if a person is diligent and makes enquiries to their status and acquires appropriate advice ... they hit the tripwire of knowledge, they face the horns of dilemma ... but if not ... a person is perfectly entitled to say I rest on the knowledge of no knowledge of my citizenship. |
| He says that will provoke the community, the media and other political opponents to go on a search for conflicts, creating a “sequence” like we have seen this year. | He says that will provoke the community, the media and other political opponents to go on a search for conflicts, creating a “sequence” like we have seen this year. |
| He concludes his argument with a summation of their main foundation – that if someone wishes to stand for parliament, they should make the appropriate enquiries first and if they are elected, “they sit in the parliament with the undivided loyalty that the constitution demands”. | He concludes his argument with a summation of their main foundation – that if someone wishes to stand for parliament, they should make the appropriate enquiries first and if they are elected, “they sit in the parliament with the undivided loyalty that the constitution demands”. |
| Updated | Updated |
| at 5.38am BST | at 5.38am BST |
| 4.52am BST | 4.52am BST |
| 04:52 | 04:52 |
| Gleeson is saying the only dual-citizenship which should be accepted, are those “extreme” cases, where you try to get out “and you can’t”. | Gleeson is saying the only dual-citizenship which should be accepted, are those “extreme” cases, where you try to get out “and you can’t”. |
| That’s for countries such as Iran, which don’t acknowledge attempts to renounce citizenship. Sam Dastyari has been very public in recent months about how he spent $25,000 in his attempts to renounce any claim to Iranian citizenship, so, if needed, he could show the high court he had taken all reasonable steps to renounce that citizenship. | That’s for countries such as Iran, which don’t acknowledge attempts to renounce citizenship. Sam Dastyari has been very public in recent months about how he spent $25,000 in his attempts to renounce any claim to Iranian citizenship, so, if needed, he could show the high court he had taken all reasonable steps to renounce that citizenship. |
| Updated | Updated |
| at 4.54am BST | at 4.54am BST |
| 4.49am BST | 4.49am BST |
| 04:49 | 04:49 |
| Laying out his case, Gleeson points out that Joyce was a citizen of New Zealand when he was elected, that he did not take the steps necessary to check whether he had any conflicts, that New Zealand law was not “exorbitant” and was known it could be passed on, and that when the constitution was written, there was an awareness of the issues that dual citizenship could present. | Laying out his case, Gleeson points out that Joyce was a citizen of New Zealand when he was elected, that he did not take the steps necessary to check whether he had any conflicts, that New Zealand law was not “exorbitant” and was known it could be passed on, and that when the constitution was written, there was an awareness of the issues that dual citizenship could present. |
| He says that it is “clearly evident” that into the 20th century, citizenship by descent was accepted by law. | He says that it is “clearly evident” that into the 20th century, citizenship by descent was accepted by law. |
| There was a ready means under the law of NZ to renounce his citizenship without onerous conditions | There was a ready means under the law of NZ to renounce his citizenship without onerous conditions |
| And the final fact is by the relevant date he had taken no steps [to renounce]. | And the final fact is by the relevant date he had taken no steps [to renounce]. |
| And on that basis, Gleeson says, there is no reason “to qualify or disapply” the general rule of recognition, or distinguish between natural born and foreign born citizens. | And on that basis, Gleeson says, there is no reason “to qualify or disapply” the general rule of recognition, or distinguish between natural born and foreign born citizens. |
| In Gleeson’s argument, Joyce knew his father was born in New Zealand, the New Zealand law was known, in so far as people knew they could inherit citizenship, the process to shed yourself of that citizenship was fairly easy and he should have checked before he was elected but he didn’t. | In Gleeson’s argument, Joyce knew his father was born in New Zealand, the New Zealand law was known, in so far as people knew they could inherit citizenship, the process to shed yourself of that citizenship was fairly easy and he should have checked before he was elected but he didn’t. |
| Updated | Updated |
| at 4.52am BST | at 4.52am BST |
| 4.37am BST | 4.37am BST |
| 04:37 | 04:37 |
| Gleeson is now moving on to how Sykes v Cleary and Sue v Hill fit into his argument. | Gleeson is now moving on to how Sykes v Cleary and Sue v Hill fit into his argument. |
| Sykes v Cleary is the case which reminded political parties about section 44 and saw the high court set down some rules around it. | Sykes v Cleary is the case which reminded political parties about section 44 and saw the high court set down some rules around it. |
| Sue v Hill was the 1999 case involving a One Nation Senator (Heather Hill) who did not take reasonable steps to shed her UK citizenship before her election to the Senate. It decided, that for all intents and purposes, England was a foreign power to Australia. | Sue v Hill was the 1999 case involving a One Nation Senator (Heather Hill) who did not take reasonable steps to shed her UK citizenship before her election to the Senate. It decided, that for all intents and purposes, England was a foreign power to Australia. |
| It was also the case that Pauline Hanson’s chief advisor, James Ashby pointed to when denying Malcolm Roberts had any citizen conflicts as “we learnt from the Heather HIll case, so weren’t going to fall for that a second time”. | It was also the case that Pauline Hanson’s chief advisor, James Ashby pointed to when denying Malcolm Roberts had any citizen conflicts as “we learnt from the Heather HIll case, so weren’t going to fall for that a second time”. |
| Malcolm Roberts’s case will be discussed once Gleeson concludes. | Malcolm Roberts’s case will be discussed once Gleeson concludes. |
| Updated | Updated |
| at 4.40am BST | at 4.40am BST |
| 4.27am BST | 4.27am BST |
| 04:27 | 04:27 |
| Welcome back | Welcome back |
| Justin Gleeson, on behalf of Tony Windsor who is challenging Barnaby Joyce’s eligibility still has the floor. | Justin Gleeson, on behalf of Tony Windsor who is challenging Barnaby Joyce’s eligibility still has the floor. |
| He picks up where he left off before the lunch break and completes his argument on foreign allegiance. | He picks up where he left off before the lunch break and completes his argument on foreign allegiance. |
| When we left off, the court was raising the argument, put forward in other cases, that you can’t have split loyalties, if you didn’t know one of those loyalties existed. | When we left off, the court was raising the argument, put forward in other cases, that you can’t have split loyalties, if you didn’t know one of those loyalties existed. |
| Gleeson submits that no – the split loyalty exists with the dual-citizenship, despite how you feel. | Gleeson submits that no – the split loyalty exists with the dual-citizenship, despite how you feel. |
| It comes down to what the court decides section 44 was created for – was it to prevent split allegiances, regardless of whether a person knew they were a foreign citizen or not, or was it created to prevent parliamentarians from knowingly splitting their allegiances. | It comes down to what the court decides section 44 was created for – was it to prevent split allegiances, regardless of whether a person knew they were a foreign citizen or not, or was it created to prevent parliamentarians from knowingly splitting their allegiances. |
| Updated | Updated |
| at 4.31am BST | at 4.31am BST |
| 2.46am BST | 2.46am BST |
| 02:46 | 02:46 |
| The court adjourns for lunch | The court adjourns for lunch |
| And with that, we are on break. | And with that, we are on break. |
| We’ll see you back just after 2pm. | 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. | 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. |
| Updated | Updated |
| at 2.54am BST | at 2.54am BST |
| 2.44am BST | 2.44am BST |
| 02:44 | 02:44 |
| The high court is now talking about feelings. | 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 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. | In an argument which is sure to make Malcolm Roberts’s ears prick up, the bench is asking about 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. | 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. | 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. | 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. | Mr Walker says this all hinges on felt allegiance... ‘I can’t feel it if I don’t know it’ – that his is case. |
| Our case is what section 44 has done is seize on the status. | Our case is what section 44 has done is seize on the status. |
| Gleeson 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”. | Gleeson 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”. |
| Updated | Updated |
| at 2.54am BST | at 2.54am BST |