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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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| Version 4 | Version 5 |
|---|---|
| Dual citizenship case – live: Roberts's birthplace a 'dangerous distraction' | |
| (about 2 hours later) | |
| 4.45am BST | |
| 04:45 | |
| Donaghue says the historical law is “inconsistent” when it comes to foreign law obligations - that in all the drafts of the constitution up until 1898-or so, the provision as drafted “clearly was not concerned to stop someone with the status of dual citizen” to sit within the parliament - the target, he says, was to stop someone from “voluntarily” taking on dual citizenship. | |
| This is a throw back to the argument of what the constitution authors actually meant when they drafted section 44. | |
| Updated | |
| at 4.49am BST | |
| 4.39am BST | |
| 04:39 | |
| Donaghue is back and arguing on foreign citizenship laws, which he says are “exorbitant” in that it goes back for so many generations. | |
| He is again arguing that interpreting section 44 literally - or taking a hardline approach to it - would disqualify a large proportion of the Australian population from being dual citizens. | |
| One could argue that it actually wouldn’t - because anyone who wants to be a member of parliament could just renounce their citizenship conflict - but that is not in line with the government’s case. | |
| And we are hearing the “political weapon” argument again - that for people who couldn’t know, for example someone who didn’t know their father, or was adopted, suddenly finds they have dual citizenship. | |
| To my mind, that argument still falls down because of the lack of name on a birth certificate, but I am not a lawyer. | |
| 4.30am BST | |
| 04:30 | |
| Robert Newlinds rests | |
| It’s time for the submissions in reply. | |
| Solicitor general Stephen Donaghue, who Kiefel mistakenly refers to as the attorney, before correcting herself, is up first to respond to the arguments that have been put to the court that don’t marry up with the Commonwealth’s case. | |
| Updated | |
| at 4.35am BST | |
| 4.28am BST | |
| 04:28 | |
| Newlinds is rushing through the rest of his argument now, giving it, basically, in dot points. | |
| He concludes that in 1974, when Roberts received his certificate (which they reject was naturalisation) confirming his Australian citizenship, he was right to believe he was only Australian. | |
| “He was entitled to put that question out of his mind and get on with his life as the years went by,” Newlinds said. | |
| “Come 2016 his state of mind was the same – that he was Australian – but it is only that he gets the letter from the home office that he has the frame of mind [to know he is a dual citizen] and the steps he took from that moment ought to be reasonable.” | |
| Newlinds said based on those facts, the court should accept that Roberts is in exactly the same position as Joyce and Nash – there is no differential in situations, despite what the government contends. | |
| He goes a bit further. | |
| “He was not disqualified when he was chosen and he has not been disqualified when he was sitting because he took the reasonable steps [to renounce as soon as he knew]. | |
| Newlinds takes his seat. | |
| Updated | |
| at 4.33am BST | |
| 4.22am BST | |
| 04:22 | |
| Newlinds is arguing Roberts did take reasonable steps – as soon as he had “knowledge” of his dual-citizenship. | |
| Roberts did not renounce until five months or so after the election, but Newlinds is arguing he didn’t receive the knowledge that he was a British citizen until after the nomination. | |
| “It must be actual knowledge or nothing,” says Newlinds, in terms of Sykes v Cleary. | |
| Updated | |
| at 4.24am BST | |
| 4.19am BST | |
| 04:19 | |
| Newlinds is turning his attention to “wilful blindness” and says Roberts was not wilfully blind, as he had no knowledge. | |
| He adopts Bret Walker’s position – who was arguing on behalf of Barnaby Joyce and Fiona Nash – that if you didn’t know, you couldn’t be expected to check. So it was not wilful blindness, it was a case of no knowledge, Newlinds argues | |
| Updated | |
| at 4.23am BST | |
| 4.17am BST | |
| 04:17 | |
| The court is back in session | |
| And Justice Kiefel has just informed Newlinds he has 15 minutes left. | |
| Updated | |
| at 4.17am BST | |
| 2.44am BST | 2.44am BST |
| 02:44 | 02:44 |
| The court breaks for lunch | 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. | 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. | 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 | 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. | More to come in the afternoon session. |
| Updated | Updated |
| at 2.46am BST | at 2.46am BST |
| 2.40am BST | 2.40am BST |
| 02:40 | 02:40 |
| “Where are we then, in relation to your outline,” Kiefel asks. | “Where are we then, in relation to your outline,” Kiefel asks. |
| “We are up to, paragraph five,” Newlinds tells the court. | “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. | He is still establishing it was reasonable that Roberts did not know he could be a British citizen. |
| Updated | Updated |
| at 2.43am BST | at 2.43am BST |
| 2.38am BST | 2.38am BST |
| 02:38 | 02:38 |
| The justices are again asking what the relevance is of the historical arguments. | The justices are again asking what the relevance is of the historical arguments. |
| 2.33am BST | 2.33am BST |
| 02:33 | 02:33 |
| Newlinds is again arguing that Roberts’s state of mind was “fixed” in 1974 and he was entitled to believe that. | 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. | Here is a run down of what Roberts has said in the past on his citizenship. |
| Updated | Updated |
| at 2.36am BST | at 2.36am BST |
| 2.32am BST | 2.32am BST |
| 02:32 | 02:32 |
| The bench is attempting to work out when Roberts thought he might be a British citizen. | 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?” | “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: | 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].” | “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. | But from 1986 he believed he was Australian. |
| Updated | Updated |
| at 2.34am BST | at 2.34am BST |
| 2.24am BST | 2.24am BST |
| 02:24 | 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. | 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. | Otherwise known as the high court says hurry up. |
| Updated | Updated |
| at 2.43am BST | at 2.43am BST |
| 2.23am BST | 2.23am BST |
| 02:23 | 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 | 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 |
| Updated | Updated |
| at 2.31am BST | at 2.31am BST |
| 2.22am BST | 2.22am BST |
| 02:22 | 02:22 |
| Oh this is excruciating. High Court justices seem completely perplexed as to the relevance of Malcolm Roberts' QC arguments #Citizenship7 | Oh this is excruciating. High Court justices seem completely perplexed as to the relevance of Malcolm Roberts' QC arguments #Citizenship7 |
| 2.21am BST | 2.21am BST |
| 02:21 | 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. | 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. | 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.” | “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. | 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 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. | Justice Bell is asking again what the relevance is of the law pre-1899. |
| There is so much more to come. | There is so much more to come. |
| Updated | Updated |
| at 2.30am BST | at 2.30am BST |
| 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. |
| Updated | Updated |
| at 2.14am BST | at 2.14am BST |
| 2.08am BST | 2.08am BST |
| 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. |
| Updated | Updated |
| at 2.15am BST | at 2.15am BST |