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Dual citizenship case – live: Roberts being born in India is 'dangerous distraction', court hears
Dual citizenship case – live: Roberts being born in India is 'dangerous distraction', court hears
(35 minutes later)
2.44am BST
02:44
The court breaks for lunch
We are moving on to Sykes v Cleary, and the 20th century, but we are now on break until 2.15.
I imagine there will be quite the need for some strong cups of coffee, or a strong something, after this morning’s events.
Barrister: By 2016 times have changed and the red line moved or the world moved around Roberts in a way not reasonable for him to understand
More to come in the afternoon session.
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2.40am BST
02:40
“Where are we then, in relation to your outline,” Kiefel asks.
“We are up to, paragraph five,” Newlinds tells the court.
He is still establishing it was reasonable that Roberts did not know he could be a British citizen.
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2.38am BST
02:38
The justices are again asking what the relevance is of the historical arguments.
2.33am BST
02:33
Newlinds is again arguing that Roberts’s state of mind was “fixed” in 1974 and he was entitled to believe that.
Here is a run down of what Roberts has said in the past on his citizenship.
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2.32am BST
02:32
The bench is attempting to work out when Roberts thought he might be a British citizen.
“You referred us to ... the attorney general submissions which contains the sentence ‘indeed it appears that he knew that he had been a British citizen prior to 1974’. You don’t challenge that?”
No, says Newlinds. Asked to expand on when Roberts thought he could be British, Newlinds says:
“From at least of 1974 ... 1962 he is a child, but at some point before 1974 he knows he is a British citizen, no, he knows he is Australian [but has a real and substantive prospect he could be a British citizen].”
But from 1986 he believed he was Australian.
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2.24am BST
02:24
Kiefel now asks for Newlinds to shorten his argument and bring us up to date with modern law. She says she can give them the relevant paragraphs from his submission and they can read them at their leisure.
Otherwise known as the high court says hurry up.
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2.23am BST
02:23
Newlinds wants us to look at what happened through the prism of Roberts’s state of mind, which is aided by the historical context (of citizenship) and therefore find it reasonable that he did not know he was a dual-citizen
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2.22am BST
02:22
Oh this is excruciating. High Court justices seem completely perplexed as to the relevance of Malcolm Roberts' QC arguments #Citizenship7
2.21am BST
02:21
Newlinds wants to convince the court it was reasonable that Roberts didn’t take any steps to renounce his UK citizenship until he realised he was a British citizen.
He again talks about what Roberts thought about his citizenship, before his nomination.
“His state of mind was embedded and set in 1974 and it doesn’t change.”
1974 was the date when he received his certificate he was an Australian citizen and, Newlinds argues, from then on Roberts believed he was an Australian citizen.
Justice Susan Kiefel points out that we are “a long way from the day of nomination, aren’t we,” as Newlinds continues his argument.
Justice Bell is asking again what the relevance is of the law pre-1899.
There is so much more to come.
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2.13am BST
2.13am BST
02:13
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.
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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2.08am BST
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02:08
02:08
The bench is listening to Newlinds’s argument against this notion of natural born Australians.
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?”
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”.
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.
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
Newlinds takes us to 1906.
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02:00
We’re being asked to go back in time and are now examining law from “colonial times”.
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1.59am BST
01:59
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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1.54am BST
01:54
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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1.50am BST
01:50
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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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.
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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”.
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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.
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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
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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”.
