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You can find the current article at its original source at https://www.theguardian.com/australia-news/live/2017/oct/12/mps-dual-citizenship-case-high-court-sits-for-third-day-live
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| 'No doubt' Fiona Nash was UK citizen, court hears: MPs' dual citizenship case, live | |
| (35 minutes later) | |
| 1.39am BST | |
| 01:39 | |
| This is all being raised because the high court, under cross examination, found Roberts was a dual-citizen when he was elected. | |
| 1.37am BST | |
| 01:37 | |
| Newlinds is arguing, quite forcibly, that Roberts was “already an Australian national” when he was born and didn’t become naturalised in 1974 - he just “got a certificate”. | |
| If you want to know more about that certificate, Stephen Murray has a very good overview here | |
| “In 1974 all that happened was[his father said to a] young Mr Roberts... I got you this certificate and it was put in the family documents.” | |
| Newlinds said there was no evidence Roberts took an oath of allegiance or took an oath renouncing allegiance to anywhere else when he received that certificate. | |
| 1.32am BST | |
| 01:32 | |
| We have an ‘un-Australian’ reference. Surprised it took almost three days. | |
| The counsel for One Nation is taking a stance against the idea that there are natural born Australians and “what ... immigrant Australians?”, which is says is a “fundamentally un-Australian notion”. | |
| Updated | |
| at 1.36am BST | |
| 1.28am BST | |
| 01:28 | |
| The amicus curiae takes his seat - Malcolm Roberts presents his case | |
| Robert Newlinds has the floor. | |
| He is going to start with why all the arguments so far been put forward by the government on Malcolm Roberts are wrong. | |
| He disagrees that Malcolm Roberts was not natural born, despite being born in India. | |
| He disagrees that Malcolm Roberts needed to be naturalised. | |
| He disagrees that Malcolm Roberts was not an Australian citizen in 1974. | |
| He disagrees that Great Britain was a foreign power in 1974. | |
| He says even though Roberts did not believe he was a British citizen he still took steps to renounce any UK citizenship. | |
| Updated | |
| at 1.30am BST | |
| 1.23am BST | |
| 01:23 | |
| Kennett is taking aim at the expert report Canavan’s team put forward on Italian citizenship law, which he said was a “surprise” and that it would have been better if it could have been put forward earlier so they could have “crystalised” arguments “much earlier in this process so that something could’ve been done to resolve it”. | |
| But he has those arguments now now. And he says there are some issues if the court agrees with the arguments put forward: | |
| The high court risks ruling the Italian court was unconstitutional | |
| Canavan is asking the court to rule on an onus of proof that “someone doesn’t exist” and then “claim victory” on someone who doesn’t exist | |
| It’s putting all the onus on a foreign law | |
| Kennett says Canavan’s grandparents were born in Italy and that is enough of a connection to offer him some of Italy’s protection. | |
| He says Canavan was made a citizen at birth, through that 1983 Italian law change, at least in the view of an Australian law - that it wasn’t retrospective, that it was a law which was there and expanded. | |
| That’s because the Italian law used to only apply to the male line, but in 1983, they decided that was discriminatory and expanded it to include the female line. So the law didn’t so much change, as become more inclusive. | |
| Just a reminder that Kennett has no players on the field here - his job is just to talk about the law that has been brought up, to offer some contrary views, in order to assist the court. | |
| Updated | |
| at 1.28am BST | |
| 1.09am BST | |
| 01:09 | |
| Fiona Nash’s case has just been brought up by Kennett. | |
| Nash is being represented by Bret Walker, who is also representing Barnaby Joyce, but the more higher profile names here - Matt Canavan among them - have taken up most of our attention. | |
| She was born in Sydney, but her father (and siblings) were born in the UK. Nash said she believed she needed to take an active step to receive citizenship, which she never did, so did not check her citizenship status before her election. | |
| Kennett tells the court that under his interpretation there was “no doubt” Nash was a British citizen and “on our construction that would be the end of the matter”. | |
| Updated | |
| at 1.15am BST | |
| 1.05am BST | |
| 01:05 | |
| Still on loyalty | |
| High Court justice says "there's no assumption of any obligation of loyalty" to the UK in British and overseas subject status. | |
| 1.02am BST | 1.02am BST |
| 01:02 | 01:02 |
| Moving on to Nick Xenophon’s case, Kennett is talking about the argument of citizenship. Xenophon’s counsel argued British overseas citizenship didn’t actually afford the right of entry or the right of abode, and therefore, wasn’t really citizenship. | |
| The bench is asking Kennett about whether there are any examples of “the notion of citizenship divorced from the right of entry”? | The bench is asking Kennett about whether there are any examples of “the notion of citizenship divorced from the right of entry”? |
| “I am not aware of an example,” he says. | “I am not aware of an example,” he says. |
| The bench is confirming that Xenophon did not undertake any notion of loyalty with the United Kingdom. | The bench is confirming that Xenophon did not undertake any notion of loyalty with the United Kingdom. |
| Kennett says he did not. | Kennett says he did not. |
| Updated | |
| at 1.08am BST | |
| 12.59am BST | 12.59am BST |
| 00:59 | 00:59 |
| The bench is now questioning Kennett over the arguments put forward by Justin Gleeson and Ron Merkel on the behalf of Tony Windsor yesterday, who took aim at the idea of “feeling” allegiance and how that plays into section 44. | The bench is now questioning Kennett over the arguments put forward by Justin Gleeson and Ron Merkel on the behalf of Tony Windsor yesterday, who took aim at the idea of “feeling” allegiance and how that plays into section 44. |
| Kennett avoids talk of feelings, but his interpretation of the law sounds to me quite similar to what the Windsor case was putting forward. | Kennett avoids talk of feelings, but his interpretation of the law sounds to me quite similar to what the Windsor case was putting forward. |
| Updated | Updated |
| at 1.00am BST | at 1.00am BST |
| 12.47am BST | 12.47am BST |
| 00:47 | 00:47 |
| We have heard a lot over the past two days about what the authors’ of the constitution actually meant to say in 1901 when they wrote section 44. | We have heard a lot over the past two days about what the authors’ of the constitution actually meant to say in 1901 when they wrote section 44. |
| Kennett says that reading meaning into the drafts takes us down a path of rewriting it, instead of interpreting it. | Kennett says that reading meaning into the drafts takes us down a path of rewriting it, instead of interpreting it. |
| “Such matters are at least to a substantial degree voided by the operation of the choice of law ruled,” he says. | “Such matters are at least to a substantial degree voided by the operation of the choice of law ruled,” he says. |
| Updated | Updated |
| at 12.52am BST | at 12.52am BST |
| 12.35am BST | 12.35am BST |
| 00:35 | 00:35 |
| For those who can’t get enough, or need something to do to kill some time, yesterday’s transcript can be found here. | For those who can’t get enough, or need something to do to kill some time, yesterday’s transcript can be found here. |
| Updated | Updated |
| at 12.39am BST | at 12.39am BST |
| 12.32am BST | 12.32am BST |
| 00:32 | 00:32 |
| We heard from Matt Canavan’s counsel on Tuesday, where he quoted from an report, compiled by experts in Italian citizenship law. He accurately pointed out there was some debate in the report over whether Italian citizenship was provided automatically, or whether one had to take active steps to activate it. But the report also found that under the 1983 law, which made Canavan’s mother an Italian citizen by descent, because her mother (Canavan’s grandmother) hadn’t naturalised until after she was born, Canavan also became a citizen by descent. It’s not unusual for counsel to minimise arguments which don’t entirely line up with their cases, and the court does have copies of the entire report. You can read more about it here | We heard from Matt Canavan’s counsel on Tuesday, where he quoted from an report, compiled by experts in Italian citizenship law. He accurately pointed out there was some debate in the report over whether Italian citizenship was provided automatically, or whether one had to take active steps to activate it. But the report also found that under the 1983 law, which made Canavan’s mother an Italian citizen by descent, because her mother (Canavan’s grandmother) hadn’t naturalised until after she was born, Canavan also became a citizen by descent. It’s not unusual for counsel to minimise arguments which don’t entirely line up with their cases, and the court does have copies of the entire report. You can read more about it here |
| 12.26am BST | 12.26am BST |
| 00:26 | 00:26 |
| With this being the last (scheduled) day for the hearings, attention is turning to when there will be a decision. That’s one of those how long is a piece of string questions - there is some chatter that there could be a decision on some of the cases as early as tomorrow, but keep in mind that is just chatter from interested parties and not an insight into the bench. Others think the high court could hand down its decision sometime in the next week, but reserve reasons. But given the pressing need for an answer, the general consensus is we’ll have a decision sometime between tomorrow and the end of the month. | With this being the last (scheduled) day for the hearings, attention is turning to when there will be a decision. That’s one of those how long is a piece of string questions - there is some chatter that there could be a decision on some of the cases as early as tomorrow, but keep in mind that is just chatter from interested parties and not an insight into the bench. Others think the high court could hand down its decision sometime in the next week, but reserve reasons. But given the pressing need for an answer, the general consensus is we’ll have a decision sometime between tomorrow and the end of the month. |
| Updated | Updated |
| at 12.39am BST | at 12.39am BST |
| 12.18am BST | 12.18am BST |
| 00:18 | 00:18 |
| Geoffrey Kennett, who is acting as the amicus curiae - friend of the court - is just finishing up some of what he started yesterday. | Geoffrey Kennett, who is acting as the amicus curiae - friend of the court - is just finishing up some of what he started yesterday. |
| He’s not representing anyone, just expanding on some points of law which have been raised as we are going along. It is nothing we haven’t heard previously, but I’ll let you know if he challenges a point which has been raised. | He’s not representing anyone, just expanding on some points of law which have been raised as we are going along. It is nothing we haven’t heard previously, but I’ll let you know if he challenges a point which has been raised. |
| Updated | Updated |
| at 12.33am BST | at 12.33am BST |
| 12.15am BST | 12.15am BST |
| 00:15 | 00:15 |
| We are in the overflow court and the proceedings are about to get underway. | We are in the overflow court and the proceedings are about to get underway. |
| Malcolm Roberts has been spotted in the court this morning. He is the only MP who has attended these proceedings. | Malcolm Roberts has been spotted in the court this morning. He is the only MP who has attended these proceedings. |
| 12.15am BST | 12.15am BST |
| 00:15 | 00:15 |
| Good morning and welcome to the third and final day of the citizenship hearings | Good morning and welcome to the third and final day of the citizenship hearings |
| I hope you are well rested – we have a big day ahead of us. | I hope you are well rested – we have a big day ahead of us. |
| The cases were set down for three days, so this is the final day of those scheduled hearings. | The cases were set down for three days, so this is the final day of those scheduled hearings. |
| We still have the Malcolm Roberts case to get through and then the replies to the submissions from the counsel representing the other six MPs involved in this. | We still have the Malcolm Roberts case to get through and then the replies to the submissions from the counsel representing the other six MPs involved in this. |
| Yesterday we heard the closing arguments from David Bennett on behalf of Matt Canavan. Nick Xenophon’s case was put forward by Andrew Tokley who argued the sub-tier of citizenship Xenophon was found to have – British overseas citizenship – did not actually afford him any rights of citizenship – not the right to abode, not the right of entry and not consulate assistance. That’s because, he argued, Xenophon wasn’t registered as a British overseas citizen. Apparently there are tiers within the tiers. | Yesterday we heard the closing arguments from David Bennett on behalf of Matt Canavan. Nick Xenophon’s case was put forward by Andrew Tokley who argued the sub-tier of citizenship Xenophon was found to have – British overseas citizenship – did not actually afford him any rights of citizenship – not the right to abode, not the right of entry and not consulate assistance. That’s because, he argued, Xenophon wasn’t registered as a British overseas citizen. Apparently there are tiers within the tiers. |
| The Greens had their go – Brian Walters probably had the hardest time in front of the bench yesterday. He was arguing his clients, Larissa Waters and Scott Ludlam, had done the wrong thing before their nomination but were right to resign – and everyone else involved should have as well. That was based on an argument about what was “reasonable” to know about your family history. He finished with what became the foundation of his argument – that “negligence should never produce a more favourable result than diligence”. | The Greens had their go – Brian Walters probably had the hardest time in front of the bench yesterday. He was arguing his clients, Larissa Waters and Scott Ludlam, had done the wrong thing before their nomination but were right to resign – and everyone else involved should have as well. That was based on an argument about what was “reasonable” to know about your family history. He finished with what became the foundation of his argument – that “negligence should never produce a more favourable result than diligence”. |
| The former solicitor general Justin Gleeson then stepped up on behalf of Tony Windsor, the former independent MP for New England, who is challenging Barnaby Joyce’s eligibility for election. Gleeson’s argument was the split allegiances that arise from dual citizenship – which the constitution is attempting to protect the parliament from – have nothing to do with feelings and everything to do with the status. He argued Joyce knew his father was born in New Zealand, New Zealand’s citizenship law was known, it is not onerous to divest oneself of New Zealand citizenship and Joyce should have checked before one of his elections and didn’t. Gleeson, along with Ron Merkel, told the court the authors of the constitution meant for section 44 to be taken literally and, if they didn’t, they could have made adjustments – such as adding “knowingly”, or altered other sections – but they didn’t. Gleeson argued if the court found Joyce was not in breach, it risked creating a situation: | The former solicitor general Justin Gleeson then stepped up on behalf of Tony Windsor, the former independent MP for New England, who is challenging Barnaby Joyce’s eligibility for election. Gleeson’s argument was the split allegiances that arise from dual citizenship – which the constitution is attempting to protect the parliament from – have nothing to do with feelings and everything to do with the status. He argued Joyce knew his father was born in New Zealand, New Zealand’s citizenship law was known, it is not onerous to divest oneself of New Zealand citizenship and Joyce should have checked before one of his elections and didn’t. Gleeson, along with Ron Merkel, told the court the authors of the constitution meant for section 44 to be taken literally and, if they didn’t, they could have made adjustments – such as adding “knowingly”, or altered other sections – but they didn’t. Gleeson argued if the court found Joyce was not in breach, it risked creating 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. |
| This morning, it should be all about One Nation MP Malcolm Roberts. Roberts has said publicly he has the strongest case – because, despite not believing he was British, he took steps to renounce any UK citizenship. Unfortunately, those attempts involved sending emails to defunct email addresses, including one which ended in .sydneyuk, but not filling out the actual official form the UK home office requires, and paying the nominated fee, until well after the election. But the master of empirical evidence believes the court will find he took reasonable steps before his nomination. | This morning, it should be all about One Nation MP Malcolm Roberts. Roberts has said publicly he has the strongest case – because, despite not believing he was British, he took steps to renounce any UK citizenship. Unfortunately, those attempts involved sending emails to defunct email addresses, including one which ended in .sydneyuk, but not filling out the actual official form the UK home office requires, and paying the nominated fee, until well after the election. But the master of empirical evidence believes the court will find he took reasonable steps before his nomination. |
| Let’s see, shall we? As usual, look out for Paul Karp’s wraps on the most important parts of the day’s events and let your thoughts flow in the comment streams. If there are any burning questions, queries or just things taking your fancy, you can reach me on Twitter at @amyremeikis | Let’s see, shall we? As usual, look out for Paul Karp’s wraps on the most important parts of the day’s events and let your thoughts flow in the comment streams. If there are any burning questions, queries or just things taking your fancy, you can reach me on Twitter at @amyremeikis |
| Updated | Updated |
| at 12.28am BST | at 12.28am BST |