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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 5 | Version 6 |
|---|---|
| Dual citizenship case – live: Roberts's birthplace a 'dangerous distraction' | Dual citizenship case – live: Roberts's birthplace a 'dangerous distraction' |
| (35 minutes later) | |
| 5.24am BST | |
| 05:24 | |
| Larissa Waters, who was born in Canada is different, Donaghue says, because if she was not an Australian citizen at birth, she would have been stateless. | |
| “The fact is she was a Canadian citizen from the moment of birth,” Bell says. | |
| Donaghue says that is because of a “quirk” of Canadian citizenship law, and then stops himself and says: | |
| I should stop using that word”. | |
| He says that a week after Waters birth, unfortunately for her, the law was changed to something which would not have given her Canadian citizenship, the argument being that a week later, if she was not Australian, she could well have been stateless. And that is why they consider her to be in the same boat, to borrow from Newlinds, as Nick Xenophon, Barnaby Joyce, Fiona Nash and Matt Canavan, who were all born in Australia. | |
| 5.18am BST | |
| 05:18 | |
| Donaghue is being asked whether he considers Roberts to be a naturalised Australian, as far as their argument goes. | |
| He says, yes, he would expand the argument of natural born Australian v naturalised Australian to include Roberts. | |
| The government is arguing Roberts and Scott Ludlam should be differentiated from the other cases, because for all intents and purposes they became Australian citizens later – Roberts in 74 and Ludlam when he was a teenager – and that should have given them the extra push to check their status before they nominated to run for parliament. | |
| Updated | |
| at 5.22am BST | |
| 5.12am BST | |
| 05:12 | |
| Back to Sykes v Cleary. Donaghue says it should only be understood to apply to a naturalised person and does not have a position on natural born Australian citizens. | |
| He says that is in line with the court looking at the purpose of split allegiances and what was meant by section 44 (i). | |
| That’s a throwback to the argument that your allegiance can not be split if you don’t know that conflict exists. | |
| There is not a lot new here, but the purpose of submissions in reply is to clarify what everyone else has said about your case. | |
| Updated | |
| at 5.15am BST | |
| 5.04am BST | |
| 05:04 | |
| Donaghue gets to the arguments from Malcolm Roberts’s counsel and says history lesson aside, Roberts would have been considered an alien under Australian law until 1974, rejecting the idea that the certificate was a change of label. He basically says it was a change of status. | |
| He also expresses some confusion over what the moment by moment description of Roberts’s citizenship has to do with the case, that it only matters what his status was in 2016 when he nominated for the Senate. | |
| Updated | |
| at 5.08am BST | |
| 4.59am BST | |
| 04:59 | |
| Tony Windsor’s counsel had argued it doesn’t matter how you feel about your citizenship allegiance, the very status meant a foreign power could have power over you, for example, with military service. | |
| Dongahue says that approach would also mean anyone who met the reasonable steps test to renounce, but were unable to in those cases where countries don’t acknowledge the renouncement, could also potentially be called upon by those powers. | |
| Updated | |
| at 5.06am BST | |
| 4.54am BST | |
| 04:54 | |
| Donaghue is now talking about what Edmund Barton, Australia’s first prime minister and one of the drafters of the constitution, was thinking. | |
| For a recap on how section 44 came to be, as it is, here is a nice wrap from the ABC | |
| Updated | |
| at 5.05am BST | |
| 4.50am BST | |
| 04:50 | |
| We are back in the 1800s and the colonial conferences which were held to discuss the Australian constitution. | |
| Again, Donaghue argues they did not intend for parliamentarians who did nothing to receive foreign citizenship to be ineligible for parliament. | |
| Updated | |
| at 5.05am BST | |
| 4.45am BST | 4.45am BST |
| 04:45 | 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 throwback to the argument of what the constitution authors actually meant when they drafted section 44. | |
| Updated | Updated |
| at 4.53am BST | |
| 4.39am BST | 4.39am BST |
| 04:39 | 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. | 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, about people who couldn’t know, for example someone who didn’t know their father or was adopted, and then they suddenly find 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. | To my mind, that argument still falls down because of the lack of name on a birth certificate, but I am not a lawyer. |
| Updated | |
| at 4.52am BST | |
| 4.30am BST | 4.30am BST |
| 04:30 | 04:30 |
| Robert Newlinds rests | Robert Newlinds rests |
| It’s time for the submissions in reply. | 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. | 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 | Updated |
| at 4.35am BST | at 4.35am BST |
| 4.28am BST | 4.28am BST |
| 04:28 | 04:28 |
| Newlinds is rushing through the rest of his argument now, giving it, basically, in dot points. | 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 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. | “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.” | “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. | 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 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]. | “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. | Newlinds takes his seat. |
| Updated | Updated |
| at 4.33am BST | at 4.33am BST |
| 4.22am BST | 4.22am BST |
| 04:22 | 04:22 |
| Newlinds is arguing Roberts did take reasonable steps – as soon as he had “knowledge” of his dual-citizenship. | 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. | 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. | “It must be actual knowledge or nothing,” says Newlinds, in terms of Sykes v Cleary. |
| Updated | Updated |
| at 4.24am BST | at 4.24am BST |
| 4.19am BST | 4.19am BST |
| 04:19 | 04:19 |
| Newlinds is turning his attention to “wilful blindness” and says Roberts was not wilfully blind, as he had no knowledge. | 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 | 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 | Updated |
| at 4.23am BST | at 4.23am BST |
| 4.17am BST | 4.17am BST |
| 04:17 | 04:17 |
| The court is back in session | The court is back in session |
| And Justice Kiefel has just informed Newlinds he has 15 minutes left. | And Justice Kiefel has just informed Newlinds he has 15 minutes left. |
| Updated | Updated |
| at 4.17am BST | 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 |