The court has risen for the first day
And with that, we are done. The court will be back at 10.15 tomorrow morning to hear the rest of the arguments.
Tomorrow, we should hear some of the dissenting arguments – so far, everyone has been on the same page. But the Greens are not. Scott Ludlam and Larissa Waters have put in a submission which argues against much of what we have heard today – their case rests on ignorance, or carelessness, as they have termed it, should not be considered a defence.
A very big thank you to everyone who has played along today. We’ll be back tomorrow to keep you updated and make sure you keep an eye out for Paul Karp’s report, which will be coming at your screens very soon.
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Bennett argues again that section 44 was inserted to cover divided loyalties, and if you don’t know you have a divided loyalty - ie: you’re unaware of it- then it doesn’t count.
I’ve seen a few comments about Canavan’s original claims about his mother applying on his behalf for Italian citizenship, without his knowledge, in 2006.
That’s the reason he stepped down from the ministry - after his mother contacted him following the very public resignations of Larissa Waters and Scott Ludlam - along with many within the government ridiculing their situation - and said she may have placed him in an awkward position.
His mother had told Canavan about his eligibility for citizenship in 2006, but he choose not to take it up. But she did - and when she did, she added him as one of her child, which was seen as a potential registration of Canavan. “It doesn’t purport to be an application on behalf of the children,” Bennett argues.
But back in July (doesn’t that seem like a long time ago) Canavan and the government thought that might put him in breach. He stepped down from the ministry and the case was referred to the high court.
Further investigations revealed the Italian law change, his legal team argues, and made any action his mother took (which they now say did not grant him citizenship) completely irrelevant.
So tl;dr - Canavan’s mother kicked the process off by letting him know she had named him as one of her children on her own citizenship forms, but that didn’t grant him citizenship - it registered him The Italian law change when he was two, however, did give him citizenship by descent.
Bennett has presented an expert report which says Canavan would still need to take an active step for that citizenship to apply.
Bennett is following the path laid out by Donaghue and Walker, in terms of arguments.
He is just expanding on it slightly, by talking about some of the extra layers Italian law has added to the case, given, he argues, it was a law change after Canavan’s birth - and his mother’s birth - which led to his dual citizenship.
Basically - that citizenship was “foisted” upon Canavan and he had done nothing, actively, to obtain or retain it, and did not even know of its existence until very recently.
The (free) judgements are starting to roll in.
I would disqualify them all, except maybe Xenophon, who I reckon tried pretty damn hard.
— Sean Kelly (@mrseankelly) October 10, 2017
I await my judicial appointment.
Having a quick look at the comments (yes, I lurk) and social media, there seems to be a consensus about ignorance not being an excuse.
But there is every chance the high court will disagree – not necessarily falling on the side of ignorance, but examining whether being granted citizenship by descent, or through a foreign power’s law changes, is something section 44 was meant to cover, and whether it is reasonable that people know to check.
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Bennett now going through Italian citizenship law history #Citizenship7
— Matthew Doran (@MattDoran91) October 10, 2017
We are all learning more than we ever needed to about various citizenship laws and how they came to be.
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“Unfortunately Senator Canavan at the age of two did not have an understanding of Italian constitutional law,” Bennett says with a drawl.
It’s been a long day. Everyone is doing their best to find the lols where they can.
Bennett points out that when Canavan’s mother, Maria, was born, her father had already naturalised as an Australian citizen, and had lost his Italian citizenship.
Then the Italian law changed and Maria, as well as two-year-old Matthew, became Italian citizens by descent, which Bennett refers to as “an event”.
That “event” being the Italian court decided it was discriminatory to limit citizenship by descent to the male line, and women could also pass it on.
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Bret Walker finishes and David Bennett picks it up for Matt Canavan
David Bennett thanks Bret Walker and says he has laid out a lot of the case, but focusses in on Matt Canavan who, with his Italian citizenship by descent, has an extra layer of complexity.
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The court is attempting to understand what Walker is arguing in regards to knowledge of foreign citizenship, or not turning your mind to the potential for foreign citizenship.
He says the case draws the line at “wilful blindness”.
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Reasonable steps are “not your state of mind, it’s what you do,” Walker clarifies under questioning.
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“Once one knows then we submit the disqualification rules apply, unless you can point to having done everything you can do reasonably,” Walker says.
Walker says the choice of what to do then, before entering parliament, only applies to one who knows they have it.
Skyes v Cleary is up again, because that is the case which set out those reasonable steps to divest a candidate of any foreign citizenship political parties have relied on since 1992 when it comes to this stuff.
But Walker is arguing that if you didn’t know you were a foreign citizen, then you couldn’t be expected to take reasonable steps, because you didn’t know they were necessary.
That is essentially what the government has set out as well.
Walker, on behalf of his clients, is arguing that section 44 was designed for those who knew of their foreign citizenship and did nothing to renounce it.
“It is knowledge of foreign citizenship that is the key. That is the key,” he says, under questioning of the justices.
Again, this may be the point that the whole seven cases rest on.
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Walker is essentially fleshing out his two main points. First, that citizenship by descent should be considered differently because “it is not like the place of one’s birth” and the different foreign laws which govern who is a citizen by descent and who is not.
His main second point is if you didn’t know you were a foreign citizen, then you didn’t really have split loyalties and could not have been expected to take the steps to renounce it. So the argument is not so much ignorance of the law, or the constitution, but ignorance of your own citizenship circumstances.
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We are back on the history of section 44, with Walker saying the eventual final words used in the constitution were for those who knew of their foreign citizenship and did nothing to renounce it.
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Walker says there is “no split allegiance when you are not aware of one of them”.
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For those playing along at home - here is a list of counsel appearing for the citizenship cases (the Commonwealth is picking up the bill) pic.twitter.com/5dWNhxusqE
— Amy Remeikis (@AmyRemeikis) October 10, 2017
Walker does concede that Australians who, for some reason, have no ambition to enter parliament, may see dual citizenship as a “boon, not a burden”.
Walker is now talking about citizenship by descent. He says he has not found anything in the citizenship by descent cases, mentioning Joyce and Nash, that there is not a lot to contradict Australia’s laws.
The citizenship by descent worked for only one generation, he says, for Joyce and Nash, unlike Canavan which was citizenship by “indefinite” descent.
That’s a quick summary of the differences in foreign law the court is dealing with – New Zealand and the UK grant citizenship by descent to to the children of a citizen, where Italy allows it for as long as the descendant citizenship line remains unbroken. So if Nonna or Nonno renounced their Italian citizenship, then their children and grandchildren et al would not have received citizenship by descent.
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The second part of the case Walker is contending is the “exorbitant” foreign citizenship laws.
In plain English, that is a reference to how five of the seven, at least as far as the government is concerned, were impacted by a foreign power’s laws, having made no moves themselves to apply for that citizenship.
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Walker says it is clear Sykes v Cleary does not address people who were not aware of their foreign citizenship.
“Why it is chiefly important in our case is because we say it is clear there was no knowledge” and thereby, they could not take the steps to renounce it, Walker says.
I am paraphrasing here, but we are prohibited from recording high court proceedings.
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The solicitor-general has concluded
And with that, the solicitor-general Stephen Donaghue sits down.
On to Bret Walker (who is considered a rock star in these circles).
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He brings up the emails, including “the enquiry am I still a British citizen” as the subject line, which Roberts sent before he nominated for parliament.
He sent that email to .sydneyuk and when he didn’t get a reply, he sent another email saying he renounced his citizenship.
Sending an email is not enough, Donaghue agrees – given there is a form and fee to return to the UK Home Office.
Donaghue says the government submits that, unless the high court decides to move away from Sykes v Cleary, it contends Roberts did not take reasonable steps to renounce his citizenship and should be disqualified.
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Donaghue is back on Malcolm Roberts (page 1,279 of the submission he has put forward to the justices).
He brings up how in May 1974, when he was 19, Roberts became an Australian citizen.
“He was a British citizen and the suggestion that he was aware that he was a British citizen was confirmed by the terms ... that is a critical fact in circumstances that will apply [in whether or not someone should have taken reasonable steps],” Donaghue argues.
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Welcome back
The high court, sitting as the court of disputed returns, has returned from break.
Bret Walker, who is representing the three government MPs has ceded some time to Donaghue, so we have a little more from the government’s point of view to go.
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Break time!
The court has adjourned until 2.15pm.
I’m going to recharge the devices (there are no power points for us to use here) and see you back later this afternoon.
If you just can’t get enough of section 44, my colleague Paul Karp will have a comprehensive story on the day’s events for your consumption soon.
Updated
One of the justices just brought up that Sykes v Cleary may have already addressed the issue of natural-born Australian v naturalised citizen – and that it shouldn’t be treated differently. It’s just a question, at this stage, but Donaghue didn’t directly address it, other than to say the government’s submission wasn’t directly relying on that.
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One Nation leader Pauline Hanson is still backing Malcolm Roberts. Hanson declared “hand on heart” that she had seen Roberts’s paperwork which proved he had renounced his British citizenship before he nominated. That paperwork turned out to be emails he sent to defunct addresses in the days leading up to his Senate nomination, with the high court finding last month he was still a dual citizen when he was elected, and only filled out the official paperwork and paid the nominated fee after the 2016 election.
Hanson had accused the media of a “witch hunt” over Roberts’s citizenship concerns. She has not addressed her declaration of having seen the paperwork, but she is still behind her party colleague and appears to have taken issue with George Brandis’s submission to the high court regarding Roberts.
Here is what she told the ABC:
Well, I hope that out of the citizenship hearing that everyone gets treated exactly the same.
If one goes, they must all go. Because they have allegiance to its citizenship. Senator Brandis has targeted One Nation’s Malcolm Roberts right from the start. That is not fair and he should keep his nose out of it. It’s got nothing to do with him. And he said when Rod Culleton was up there, it’s nothing to do with the Senate, it’s to do with the high court. The same thing goes now. He actually has to stand back from this and let the high court or the court of disputed returns deal with this issue. Now, they have all been shown to have, in some way or another, an allegiance to another country, or the possible allegiance to another country, and under the constitution … you can’t have that allegiance to another country. The difference with Senator Roberts is, and I can state this honestly, he had no idea that he could have possibly been a British citizen, but he took steps prior to his nomination was put into actually renounce his citizenship. He may be criticised for actually maybe sending it to the wrong address, but the whole fact is he followed that up again. Now, at least he took steps. What did the other political parties do, or the other candidates do? Nothing. Absolutely nothing. So, what I’m saying is that if one has to go, they should all go.”
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Donaghue says the government does not want to suggest a misguided belief or wrong belief is reasonable. He says that being born in a foreign country, or travelling on another country’s passport or documentation, should be enough to ensure there are checks.
Larissa Waters is a complication to this argument, but the government has argued that she did have reason to believe that she did not receive Canadian citizenship, despite being born there.
Updated
We are back to Sykes v Cleary – but how it applies to Ludlam and Roberts. Donaghue argues that having a reasonable consideration there could be potential for foreign citizenship and not doing anything, or taking the necessary steps, could be interpreted as taking a voluntary or active step – to do nothing.
Ludlam became an Australian citizen as a teenager and believed that automatically cancelled out his New Zealand citizenship. Roberts arrived in Australia from India as a seven-year-old, with a Welsh-born father, and became an Australian citizen as a teenager. That is why the government is arguing they had reason to check.
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"If one goes, they must all go"
— Charles Croucher (@ccroucher9) October 9, 2017
- Pauline Hanson on MPs before the High Court, not certain that's how it works
Donaghue’s argument has the justices engaged over what it would mean for Sykes v Cleary.
The government doesn’t want to go as far to say the court got it wrong in 1992 – indeed, part of their argument against Ludlam and Roberts relies on the Sykes judgement.
But it does pose some questions over where this argument sits. The solicitor general wants the court to focus on the intention of section 44 when it was being written, which he admits does not have a “perfect alignment” with his submission.
He doesn’t say it’s the vibe, but we’re all thinking it.
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Lunchtime summary
Solicitor general Stephen Donaghue is still working his way through his history lesson on the drafting of the constitution, so we’ll take the opportunity to sum up what we have learnt so far:
- The government maintains that Barnaby Joyce, Fiona Nash, Matt Canavan, Larissa Waters and Nick Xenophon have similar cases.
- Donaghue argues none of them had reason to suspect they may hold foreign citizenship, and therefore did not have reason to check before they nominated.
- The government submits that section 44 was never intended to catch parliamentarians like those five MPs, as none had actively attempted to obtain or retain their citizenship.
- Scott Ludlam and Malcolm Roberts did have reason to suspect they could have foreign citizenship ties according to the government and therefore had a responsibility to thoroughly check before their nomination. Their failure to do so is why they should be found ineligible to have been elected.
- Donaghue wants the court to interpret section 44 through its “operational purpose” which he says, required some sort of action to obtain or retain citizenship, not the literal wording.
- That would narrow the view of Sykes v Cleary, the 1992 case which has set out much of how the court interprets section 44.
Updated
We are now taking a trip down memory lane to the Queen’s jubilee in 1897, when a colonial conference was held. A draft of the Australian constitution was presented at this conference and the British authorities got a look at it.
There were some questions, Donaghue says, about the draft, and some “friendly” suggestions about how to improve the draft, including in regards to citizenship.
John Bradley Hirst wrote about some of it in his book, Looking for Australia: Historical Essays.
But Donaghue is interrupted. Justice James Edelman wants to know why Donaghue is bringing up these drafts, given the constitution wasn’t, for all intents and purposes, a public document at the time.
Donaghue says he is bringing it up as the historical context provides some reasons for the change, but that there is nothing to suggest there was an intention to bring about the situation we see today.
Updated
Donaghue says that looking at the history of section 44, it was focused on “voluntarily acquisition” of foreign citizenship.
“It is relevant to keep in mind the target [of the provision] as it was framed and operated”.
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Going back 30 years before the constitution commenced, Donaghue says the law made distinctions between those who actively applied/obtained foreign citizenship and those who did not.
He says if you were naturalised and became a British subject, you became entitled to the rights and privileges of a citizen, which is the language used in section 44. He argues that it took being actively naturalised to get those rights – they weren’t automatically applied through citizenship.
Updated
The solicitor general has just taken us through a thrilling history of section 44. I don’t want you to get too excited so I’ll save you the nitty-gritty (it is still early, after all) but basically Donaghue was arguing the section was not created for the situation we find ourselves in today.
That comes back to the core of the government’s argument – that if you don’t actively seek out foreign citizenship or do anything active to retain it, and don’t have reasonable suspicions you could be a foreign citizen, then you can’t be in breach of section 44.
Updated
Donaghue brings up that the British parliament allows dual citizens – as long as they were natural born subjects.
“The target is not being a dual citizen, it is actively seeking out foreign citizenship” which was identified as being inconsistent with sitting in parliament, he argues.
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Donaghue is now summarising citizenship laws – for both Australia and some of the foreign powers in question.
We’re currently in 18th century British law.
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Just for context, the overflow court is one of the high court hearing rooms – but we are all looking at a split screen broadcast of the proceedings.
We are not allowed to take devices into the room where the case is being held, so in order to transmit was is happening, we have to sit down the hall.
Updated
The court has just brought up the fact that “natural-born Australians” are usually “on notice” of potential foreign citizenship, given the nation’s history.
But Donaghue said in the government’s submission, if someone is not aware, or couldn’t be aware, then they shouldn’t be disqualified.
This is going to be one of the main points we see argued. Given the multicultural nature of Australia, and that a lot of people are aware of potential citizenship conflicts, and renounce before they enter parliament, is it reasonable that these MPs did not check before nominating?
Updated
And we have got to the crux of the government’s case – it says section 44 should be read as “voluntarily obtaining or retaining” foreign citizenship.
The chief justice, Susan Kiefel, is questioning Donaghue over “the subjective component over what would be a positive step” towards obtaining/retaining a foreign citizen.
Donaghue says if someone became a citizen because someone filled out paperwork for them and lodged it without their knowledge, that would not be a positive step, or voluntarily becoming a citizen, despite the laws of the foreign power, at least under the test the government is arguing.
“Knowledge of a sufficiently high prospect” that they could have foreign citizenship is another crucial aspect of the government’s case.
Donaghue is arguing that if there was that knowledge “and they shut their eyes to it”, then they should be found in breach – that’s the government’s argument for why Scott Ludlam and Malcolm Roberts should be found in breach.
But it argues the others didn’t have the knowledge of “a sufficiently high prospect” and, therefore, couldn’t have known they were in conflict with section 44.
Updated
Slight interruption as we are all booted from the overflow court (where we are allowed devices) because it is suddenly needed “for another purpose” and sent to a second overflow court. Just another quirk of the high court.
But it seems like the court has moved on to clarifying whether the government believes there are any “non-literal” meanings of Australian citizen and section 44.
Updated
Fiona Nash’s case is now being outlined. She was born in Sydney, but her father was born in Scotland. They were estranged and she didn’t know the exact date of her father’s birth, or details about her grandparents.
Donaghue believes that is an important point, given that family background is important when it comes to citizenship. Nash did not know, he argues, that you could receive citizenship by descent from Scotland.
The last of the five the government claims should not be found in breach is Nick Xenophon.
Xenophon has announced he intends to resign no matter what the high court decides – he has his eye on the South Australian state parliament.
But he does believe he can win this, and so does Donaghue. Xenophon made moves to renounce any Greek or Cypriot citizenship before he entered the Senate but, as Donaghue argues, recently learnt he was a British overseas citizen because Cyprus was a UK territory until 1960.
“At no time prior to the elections did it even cross his mind he might have British citizenship,” Donaghue says.
But he does – because his father left Cyprus before the date of independence. “So, the relevant facts … are shown to depend not just on when the father is born … but related to the political fact” of when a country becomes independent.
Updated
Donaghue is whipping through these cases. He has moved on to Barnaby Joyce and is laying out his family history.
Joyce’s father, James, left New Zealand before New Zealand citizenship existed. But when New Zealand citizenship was created, it was granted to Joyce Sr as a matter of course.
Joyce the elder discovered he was a New Zealand citizen in 1978, when our Joyce was 10, when he went to become a justice of the peace and learnt he still carried New Zealand citizenship, and renounced it.
This came as a surprise to Barnaby Joyce – he said he never had any reason to believe he was a New Zealand citizen, having been born in Australia.
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Donaghue has moved on to Larissa Waters. Born to Australian parents in Canada, while they were working there, she left when she was 11 months old and believed that she was entitled to Canadian citizenship but needed to apply before she was 21.
The government submits that she, like Canavan, conscientiously decided not to apply for citizenship. “She thought she had a choice to apply for Canadian citizenship,” Donaghue argues, and she did not. Therefore she had no reason to believe she was Canadian.
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Donaghue says Canavan was told by his mother in 2006 that he was eligible to become an Italian citizen but needed to fill out some forms. He chose not to, and said that was why he it never crossed his mind to check his citizenship before nominating.
Donaghue says the argument that it was “carelessness”, which is what Larissa Waters and Scott Ludlam contend, doesn’t hold up for Canavan, because of those circumstances.
Updated
The solicitor general, Stephen Donaghue, has described the situation Canavan has found himself as the fault of a “quirk” of Italian law. His grandparents became Australian citizens, and his mother was an Australian citizen, but in 1983, the Italian courts passed a law that gave citizenship to Canavan’s mother, which automatically passed on to a two-year-old Canavan.
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The court already has an idea of the arguments – the submissions each MP’s counsel was obliged to provide lay out the defence. The government MPs have grouped their cases together with Larissa Waters and Nick Xenophon as not being in breach.
Waters is a complication for the government – not only is she disputing the government’s defence and maintaining she, and the others, were in breach of the constitution, she was also born overseas.
So far, that has been the first question in Canavan’s case, which is being laid out by the solicitor general – how does Waters fit in, given she was born in Canada?
He agrees it is a “complication” but plans to explain that more fully as they go on.
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We have begun - here’s an idea of the number of lawyers pic.twitter.com/RqNMedr8Ak
— Amy Remeikis (@AmyRemeikis) October 9, 2017
The justices are in the building – the court is in session.
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The government is relying on a dissenting judgment from Justice Deane in 1992, which opened the door for the defence George Brandis is relying on.
While the rest of the court took section 44 literally when it came to citizenship, Deane took the line that it should really only apply to cases “where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned”
Section 44(i) of the constitution states that any person who:
“is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives”.
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There was quite the crowd for court room one. The high court has new security measures in place, so it was a slow start, but we are in place and waiting for the hearing to start at 10.15.
It doesn’t look like any of the MPs will be attending, but there probably wouldn’t be room for them, given the number of briefcases and files in the room.
We understand that Matt Canavan’s case will be the first discussed.
Good morning and welcome to the first day of the citizenship hearings.
The women and men of the high court have gathered in Canberra to hear the first of the citizenship cases in front of it. Government MPs Barnaby Joyce, Matt Canavan, Fiona Nash, One Nation’s Malcolm Roberts, Nick Xenophon and the Greens senators who resigned upon discovering their conflict, Larissa Waters and Scott Ludlam, will all have their cases examined over the next three days.
Waters and Ludlam argue they were in the wrong and so is everyone else in front of the court, and should be found ineligible to have been elected. Their submission to the high court was pretty open and shut – essentially: we should have checked, we didn’t check and ignorance is no excuse.
But the government argues differently. Attorney general George Brandis submitted that Joyce, Nash, Canavan, Xenophon and Waters should be found not to be in breach of the constitution, because they didn’t know they were dual citizens and did not do anything to voluntarily receive or retain that citizenship. But Roberts and Ludlam, Brandis argued, had reasonable suspicion to check.
If you need a refresher on why he thinks that, head here, but basically it’s because Ludlam and Roberts were born overseas and came to Australia, in Ludlam’s case as a teenager and for Roberts when he was seven years old.
Roberts believes he has the strongest case, having sent emails to defunct addresses to renounce any UK citizenship, despite not truly believing he was ever British. That’s the “reasonable steps” defence – but it will be up to the court to decide if those steps, were indeed reasonable, given the UK has a set process of official forms and a fee.
Then there is Nick Xenophon, who has announced he is leaving the Senate anyway, to take a shot at the South Australian parliament. He said he took steps to renounce any Greek or Cypriot citizenship, given his parents’ ancestry, but was tripped up by the fact Cyprus was a British territory until 1960. He was born in 1959. And through his father, became a British overseas citizen at birth.
It’s going to take three days to get through these cases – and a lot of coffee.
Let’s get started.
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