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Version 2 Version 3
'No doubt' Fiona Nash was UK citizen, court hears: MPs' dual citizenship case, live Dual citizenship case – live: Roberts being born in India is 'dangerous distraction', court hears
(35 minutes later)
2.13am BST
02:13
Newlinds is going through the history of Australian citizenship which, of course, has to take into account British citizenship – because when the constitution was written in 1901, Australian citizenship did not exist. Everyone was a citizen of the UK and its colonies.
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02:08
The bench is listening to Newlinds’s argument against this notion of natural born Australians.
Justice Virginia Bell, with a hint of exasperation, at least to my ears, asks “what are we getting out of this?”
Newlinds says he “wants to get in the same boat as Mr Joyce and Senator Nash and then demonstrate I am in a better boat”.
The court after some discussion about what relevance the case he is discussing has, mentions that we are in 1898 and have “someway to go” to get to modern law.
Newlinds takes us to 1906
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We’re being asked to go back in time and are now examining law from “colonial times”.
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Newlinds is now saying that Roberts being born in India is a “dangerous distraction” because his place of birth is not why he is here, and he could have been born in downtown Parkes, and he would still be here, because the issue is his father was born in Wales.
(Sorry for the rambling sentence, but Newlinds is talking very fast and cramming a lot of words into every sentence. His words are swarming like angry bees.)
“It should have no part to play and they are only Australian citizens now ... and I even say that it should have no part to play in evidentiary presumption,” Newlinds says about Roberts’s place of birth. He says that is because Roberts did check if he was a citizen of India, and wasn’t, but the problem is the citizenship by descent.
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Newlinds adopts some of the government’s ‘didn’t know, couldn’t check’ argument.
“[It is a] matter of logic that someone who doesn’t know they are a citizen of a foreign power can not take reasonable steps,” he says.
... What Mr Roberts did from the time he signed that application was take a two-step approach – the first thing he did was try and work out what the [situation] was, [like any honest and right minded citizen would do].
He took some steps to try and work out what the true answer was to that question and he is criticised heavily [for the wrong emails] but that misunderstands the reasonable steps.
Newlinds says that in a few weeks, when he received the knowledge he was a British citizen, he took reasonable steps to renounce it.
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The high court is being asked to consider Malcolm Roberts’s “state of mind”.
Newlinds wants the court to consider:
To rebut what is put against us, that is firstly that from every day from 1974 to 2016 Senator Roberts in doing nothing, has somehow voluntarily adopted his British citizenship. When you understand the constitutional and legal context on which he was operating, that is nonsense.”
The bench interrupts because “it is just unclear where this argument is taking you”.
Newlinds says it is about how by “doing nothing about it, he was somehow voluntarily accepting his Britishness and we reject that”.
He then says if Roberts had stood for parliament in 1987, the year after the Australian act, then the Sue v Hill case, (which decided that Britain was a foreign power) could have been decided earlier – and who knows what could have happened.
The bench points out they are dealing with a “nomination in 2016”.
I’ll remind you that we are only in the first minutes here.
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This is all being raised because the high court, under cross examination, found Roberts was a dual-citizen when he was elected.This is all being raised because the high court, under cross examination, found Roberts was a dual-citizen when he was elected.
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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”. 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 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.” “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.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.
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01:3201:32
We have an ‘un-Australian’ reference. Surprised it took almost three days.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”.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”.
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The amicus curiae takes his seat - Malcolm Roberts presents his caseThe amicus curiae takes his seat - Malcolm Roberts presents his case
Robert Newlinds has the floor.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 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 was not natural born, despite being born in India.
He disagrees that Malcolm Roberts needed to be naturalised.He disagrees that Malcolm Roberts needed to be naturalised.
He disagrees that Malcolm Roberts was not an Australian citizen in 1974.He disagrees that Malcolm Roberts was not an Australian citizen in 1974.
He disagrees that Great Britain was a foreign power 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.He says even though Roberts did not believe he was a British citizen he still took steps to renounce any UK citizenship.
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01:2301:23
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”.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: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 unconstitutionalThe 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 existCanavan 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 lawIt’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.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.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.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.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.
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Fiona Nash’s case has just been brought up by Kennett.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.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.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”.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”.
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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
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”?
“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.
Kennett says he did not.
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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.
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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.
“Such matters are at least to a substantial degree voided by the operation of the choice of law ruled,” he says.
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For those who can’t get enough, or need something to do to kill some time, yesterday’s transcript can be found here.
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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
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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.
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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.
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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.
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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.
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.
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 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.
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
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