The court has adjourned
We have made it through the second day. One more to go – with Malcolm Roberts’s case to be discussed tomorrow morning when the court comes back just after 10am.
Then the barristers will give their responses to the submissions we have heard over the last two days.
Once that is all done and dusted, we await the decision.
But first we have to get through the last of the arguments.
Thank you to everyone for reading, taking the time to comment, or tweeting. I’ll have a look through tonight to see if there is anything I missed in terms of your questions.
I hope to see you back here tomorrow morning.
Have a great night.
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Kennett is going over ground we have already heard – I promise you are not missing anything major.
As to whether anyone found ineligible would have to pay back their earnings, convention would say no. When Waters and Ludlam stepped down, the Greens wrote to the government and asked that the convention, which has been granted to Rod Culleton and Bob Day as the most recent examples of MPs falling foul of section 44, be applied.
The parliamentary pension most people think of is the defined benefit scheme – which provided about 75% of the current MP salary each year (with top ups) – but that doesn’t apply to anyone elected after 2004.
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To answer another question – even though Larissa Waters, Scott Ludlam (and Nick Xenophon who has flagged his intention to leave regardless of the outcome) have resigned, the court still has to decide whether they were ever validly elected. If they were, then their resignations would spark a casual vacancy, not a count back to the next on the respective tickets. If they weren’t, then it is straight to the count back.
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While Kennett does his thing, I’ll take the opportunity to answer a couple of questions which have popped up in the comments today.
If, and it is still a big if, the high court, sitting as the court of disputed returns, finds some of the Senators were ineligible to be elected, the void positions would most likely be ceded to the next person on that party’s ticket.
Those people are entitled to hold the seat. But party politics can always come into play and if they are encouraged to stand aside, then that creates a casual vacancy, which the political party in question can fill with anyone. Including anyone who had been found ineligible because of dual-citizenship, as long as they had since renounced it (and in this case, they all have).
If Barnaby Joyce is found to have been ineligibly elected, as a lower house MP, the court would most likely set aside the election result – which means a byelection. Given its one seat majority in the house, you would imagine the government would set the date for that as soon as possible – which would be 33 days from when it issued the writs.
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Windsor's counsel rests
But we still have some time to go until we get to the last of these cases, Malcolm Roberts, with the court calling upon Geoffrey Kennett, who is acting as the amicus curiae.
His job is not to act for anyone in particular, but help test the law, essentially providing an impartial and often broader interpretation of the laws being debated by either counsel, to help give the court some context or clear up some issues which may have been hinted at, but not expanded upon during arguments.
In other words, it is the really, really dry parts of the legal argument.
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Merkel is summing up now – and he, like Gleeson, has made it through his submission with relatively few interruptions from the bench.
It is for those reasons that we say that the question should be answered in Mr Joyce’s case ... that his election should be completely void because by section 44 (i) he was incapable of being elected or sitting.
Merkel doesn’t drop a microphone, but his final full stop is felt.
That doesn’t meant the court will accept his arguments though.
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Fleshing out his argument now, Merkel says the history of section 44 was because of a concern over duelling allegiances.
Gleeson had already laid out the case that split allegiances had nothing to do with feeling and everything to do with the status of citizenship.
Merkel is now laying section 44’s history on top of that, and said other sections of the constitution also deal with allegiance.
He says they didn’t write the word “knowingly” into section 44 (1) which is what the government is arguing should be the case.
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Merkel is arguing that the government’s submission would, if accepted, enact a change of “significant consequence” for how section 44 is interpreted and the authors of the constitution did intend for it to be, well, fairly literal.
There is simply no warrant ... to read in concepts which are not really known in this area of law and totally contrary to hundreds of years [to the nature of the law which is apparent].
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Ron Merkel has taken over the case on behalf of Windsor.
He is all about section 44. We are now getting the contrary history of section 44.
That has come about because of the amount of time spent on the history of section 44 yesterday by the government and Joyce and Nash’s counsel, where they argued that those who wrote the constitution never meant for the section to be applied this way.
Merkel argues they did intend section 44 to stop dual citizens and if they didn’t, they could have changed other sections to clarify that.
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Back on allegiance and why it matters.
Gleeson is talking about how a parliamentarian with dual nationality with New Zealand, especially a minister, could face conflict when issues regarding New Zealand were being discussed, which, given the close nature of Australia and New Zealand’s relationship, is not outside the realm of possibility 0– placing doubt over loyalties.
He said that allowing the argument of “I didn’t check, so I didn’t know” would create 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.
He says that will provoke the community, the media and other political opponents to go on a search for conflicts, creating a “sequence” like we have seen this year.
He concludes his argument with a summation of their main foundation – that if someone wishes to stand for parliament, they should make the appropriate enquiries first and if they are elected, “they sit in the parliament with the undivided loyalty that the constitution demands”.
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Gleeson is saying the only dual-citizenship which should be accepted, are those “extreme” cases, where you try to get out “and you can’t”.
That’s for countries such as Iran, which don’t acknowledge attempts to renounce citizenship. Sam Dastyari has been very public in recent months about how he spent $25,000 in his attempts to renounce any claim to Iranian citizenship, so, if needed, he could show the high court he had taken all reasonable steps to renounce that citizenship.
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Laying out his case, Gleeson points out that Joyce was a citizen of New Zealand when he was elected, that he did not take the steps necessary to check whether he had any conflicts, that New Zealand law was not “exorbitant” and was known it could be passed on, and that when the constitution was written, there was an awareness of the issues that dual citizenship could present.
He says that it is “clearly evident” that into the 20th century, citizenship by descent was accepted by law.
There was a ready means under the law of NZ to renounce his citizenship without onerous conditions
And the final fact is by the relevant date he had taken no steps [to renounce].
And on that basis, Gleeson says, there is no reason “to qualify or disapply” the general rule of recognition, or distinguish between natural born and foreign born citizens.
In Gleeson’s argument, Joyce knew his father was born in New Zealand, the New Zealand law was known, in so far as people knew they could inherit citizenship, the process to shed yourself of that citizenship was fairly easy and he should have checked before he was elected but he didn’t.
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Gleeson is now moving on to how Sykes v Cleary and Sue v Hill fit into his argument.
Sykes v Cleary is the case which reminded political parties about section 44 and saw the high court set down some rules around it.
Sue v Hill was the 1999 case involving a One Nation Senator (Heather Hill) who did not take reasonable steps to shed her UK citizenship before her election to the Senate. It decided, that for all intents and purposes, England was a foreign power to Australia.
It was also the case that Pauline Hanson’s chief advisor, James Ashby pointed to when denying Malcolm Roberts had any citizen conflicts as “we learnt from the Heather HIll case, so weren’t going to fall for that a second time”.
Malcolm Roberts’s case will be discussed once Gleeson concludes.
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Welcome back
Justin Gleeson, on behalf of Tony Windsor who is challenging Barnaby Joyce’s eligibility still has the floor.
He picks up where he left off before the lunch break and completes his argument on foreign allegiance.
When we left off, the court was raising the argument, put forward in other cases, that you can’t have split loyalties, if you didn’t know one of those loyalties existed.
Gleeson submits that no – the split loyalty exists with the dual-citizenship, despite how you feel.
It comes down to what the court decides section 44 was created for – was it to prevent split allegiances, regardless of whether a person knew they were a foreign citizen or not, or was it created to prevent parliamentarians from knowingly splitting their allegiances.
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The court adjourns for lunch
And with that, we are on break.
We’ll see you back just after 2pm.
Any questions in the mean time – find me at @amyremeikis and I’ll do my best to answer as I gulp down some more coffee.
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The high court is now talking about feelings.
In an argument which is sure to make Malcolm Roberts’s ears prick up, the bench is asking about whether allegiance is a “feeling” and, if you don’t know you are a citizen, then you can’t feel that allegiance. It’s based on a prior argument from a section 44 case.
Gleeson says the “disability arises from the status – the status applies allegiance”. He argues that to shed that allegiance, one must renounce the citizenship – or at least take steps to do so.
Joyce, he argues, did not. Bret Walker argued yesterday, on behalf of Barnaby Joyce and Fiona Nash that if you didn’t know you were a citizen of another nation, then you couldn’t have a split loyalty.
Gleeson, disagrees.
Mr Walker says this all hinges on felt allegiance... ‘I can’t feel it if I don’t know it’ – that his is case.
Our case is what section 44 has done is seize on the status.
Gleeson argues that section 44 was not set out as an inquiry into the particular laws adopted by a foreign nation, or what someone thinks or feels or knows, but that the “fact of the allegiance is what creates the risk you will not have the single allegiance to the parliament of Australia”.
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Gleeson’s argument, on behalf of Windsor, is based on what they say is no applicable exception for Joyce under section 44. It is complimentary to what Walters was saying on behalf of Waters and Ludlam – that in situations where someone knows they have a foreign-born parent, than “he or she ought prior to nominating as a candidate for election to parliament, make enquiries and then renounce any foreign citizenship held”.
The bench is largely quiet – there have been a couple of questions over the issue of natural-born Australians v foreign-born Australians (which, as we know, was not covered in Sykes v Cleary and has been one of the sticking points) and how Gleeson interprets it.
Gleeson’s manner is relaxed and steady, and answers questions in the same tone of voice one would use to explain an operating system to a new colleague.
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Gleeson gets straight to the point – he says that Joyce should have taken reasonable steps before the most recent election (and, one could argue every election before 2004, when he was first elected as a Queensland senator) and didn’t, and was therefore ineligible.
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Walters rests. Former SG begins argument for Tony Windsor
Well, that was a whirlwind.
But Brian Walters has concluded. And a familiar face has the floor – former solicitor general Justin Gleeson is representing Tony Windsor in his challenge against Barnaby Joyce.
A murmur of recognition filters through the overflow court – the breakdown of Gleeson’s relationship with the attorney general, George Brandis, has become the stuff of legend.
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Walters is arguing his clients’ case – that they were both in the wrong.
He says they acknowledge that they both should have done their checks, despite thinking that naturalisation extinguished any foreign citizenship. It comes back to what he is arguing is reasonable for a person to check before signing the candidate’s form declaring they were eligible to be elected.
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Walters said there was “no reason in principle” for the reasonable-steps test to be differentiated between foreign-born and Australian-born citizens.
He is again asked about its relevancy to Sykes v Cleary and how it applies here. He said that’s the same issue the attorney general had, as “it seems to be accepted by the attorney general that if one has some knowledge of foreign citizenship status ... albeit, one was born in Australia and has it by descent, then one still has the obligation under Sykes v Cleary [to take reasonable steps to renounce]”.
If Sykes v Cleary applies in terms of the qualification, then it must apply in terms of reasonable steps to any person who has knowledge of the facts ought to have prompted proper enquiry
Candidates – nominees for the high office of the parliamentarian – have a duty at [least at a] general level to comply with the constitution.
He says that “crystallises in a certain act” when they nominate – by signing the candidate form, which says they comply with section 44.
It is a simple task that should not be overlooked to make inquiries ... not merely [to be] honest, but accurate or, should we say, that they are diligent to be accurate or careful to be accurate.
If one is to give a coherent interpretation to the section as it has been applied to for Sykes v Cleary, which was relied upon for Sue v Hill ... then it is our submission [that] it is difficult to see where one can avoid a situation where a person who knows facts that could relate to a potential conflict with section 44 and doesn’t take steps to address it, [flies in the face of the reasonable-steps precedent].
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The bench is asking Walters whether he is asking the court to take a “literal interpretation” of section 44.
He says that he is dealing with what was set down by Sykes v Cleary.
The bench jumps in again to point out that Sykes did not deal with the same situation, in that it was looking at a case where the foreign citizenship was known – not natural-born Australians who have received citizenship by descent.
Walters concedes that is true. But he falls back on the reasonable-steps argument that was set down by the 92 case – and that none of these MPs took those reasonable steps.
He says the attorney general has accepted that the MPs involved had foreign citizenship conflicts in his submission, and Ludlam and Waters argue they should have taken reasonable steps.
But Kiefel says again the case was different, because in Sykes, they knew. And the bench, in that case, did not address the “question of knowledge”.
This is where we get into the new law these cases could be creating.
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Walters has found his flow again. He, with a little laugh, accepted that the court “can’t vindicate our clients” (and indeed, that is not his arguments intention, although I’m sure the Greens would be happy to take a little vindication if it is on offer) and has moved on to arguing section 44 and assisting the court in its interpretation of section 44 – providing the contrary view to what we have heard so far.
The foundation of this argument seems to be that “negligence should never produce a more favourable result than diligence”.
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Walters seems a little shaken.
The justices, led by Kiefel, have cut down any arguments that his clients were right, as not a particularly good use of the court’s time.
His arguments based over whether the MPs should have known to have at least investigate their circumstances (he is not suggesting the MPs were not honest when they submitted they had no idea of citizenship conflicts, but that they were careless because they had reason to check, given their families’ backgrounds) have been all but dismissed.
The bench wants law, not subjective examples – that is the take-away.
It’s a strange position to be in – while everyone else before the court is making cases for why they should be found eligible to have been elected, the Greens are arguing they were ineligible – and therefore everyone else is as well.
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The court seems a little confused over these arguments – and whether Walters is asking for the court to find his clients were negligent.
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Walters says that Ludlam knew he had been born in New Zealand (he naturalised as an Australian as a teenager) and Waters knew she had been born in Canada (she left when she was 11 months old).
He brings that up, because he is arguing that there are reasonable expectations for MPs to check before they nominate.
He then asks “what is reasonable” for someone to know, in regards to their family history.
The bench is giving him a fairly hard time. They are hammering every point Walters is making.
Kiefel cuts in again: “Is it a proper use of this court’s time to argue for a vindication of their correctness?”
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Walters begins by talking about his clients and how they have handled this situation but is very quickly shut down by chief justice Susan Kiefel, who suggests he get to the legal argument.
He does so – arguing in favour of Sykes v Cleary, in terms of where it fell down on foreign citizenship. He adds to it – arguing that while the 1992 case dealt with someone who knew they had foreign citizenship, these cases add that, for candidates, there is a “duty not really to be honest but careful”.
So far he has not been able to get out more than five or so sentences before a justice breaks in with questions.
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Andrew Tokley wraps up ... now for the Greens
Tokley has taken his seat and Brian Walters steps up.
The former candidate for the Greens in Melbourne, Walters is arguing on behalf of Scott Ludlam and Larissa Waters.
It’s the first time we have heard a dissenting argument in this case – Waters and Ludlam, who both resigned upon learning of their citizenship conflicts, maintain they were right to do so – and everyone else involved in these proceedings should have as well.
They submit that ignorance of your citizenship circumstances, or “carelessness” in not checking before nominating, should not excuse you from your responsibilities.
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The case has moved on to duty of loyalty (to the Queen) which comes with UK citizenship.
Tokley says there is no evidence of duty of loyalty with Xenophon and he has taken “no formal step” in that direction.
Given the Queen is also Australia’s head of state, it is a little difficult to see how there could be a split allegiance.
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There are also differences between registered British overseas citizen and non-registered British overseas citizens. Xenophon was an unknown British overseas citizen, until very recently, Tokley says.
The justices are not asking a lot of questions. They have had the submissions, as well as a copy of the arguments ahead of time, and these proceedings, with the high court sitting as the court of disputed returns, are basically to clarify any of the issues that have popped up in those arguments.
But so far, everyone stating their case has been able to do so with minimal interruptions from the bench. Take from that what you will.
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Entering into UK law now, Tokley says that it too distinguishes between British citizenship and British overseas citizenship.
The EU too, apparently, draws a distinction.
Tokley argues that if those jurisdictions have seen fit to mark the difference, in that they recognise they do not have the same rights, than the Australian courts should find the same.
He says Xenophon is not entitled to British consulate help either.
Essentially, the argument is that Xenophon is not a dual citizen.
David Bennett rests, opening the way for Nick Xenophon's argument
Bennett rests and Andrew Tokley has the floor to begin arguing on behalf of Nick Xenophon.
The South Australian senator (for now, given he has announced plans to resign) has a slightly different case again.
He spoke to the Greek and Cypriot authorities to renounce any citizenship he may have inherited from his parents before he came to the senate.
But Cyprus was a British territory until 1960. Xenophon’s dad left in 1959. If he had left after Cyprus gained its independence, Xenophon wouldn’t be on the hearing list today. But because he left before, he retained a sub-tier of UK citizenship – British overseas citizen.
Tokley argues the “core meaning of being a citizen is having the right of entry and right of abode ... and absent that core meaning, that person is not really a citizen”.
A British overseas citizen does not have the right of entry, or the right of abode in the UK.
Therefore, Tokley says, Xenophon is not really a dual citizen and could not have split loyalties.
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Bennett is now going through the number of Australians who potentially hold dual citizenship.
No surprise, given how Australia was settled and ongoing multiculturalism policies, it’s a high number – 41 per cent. That marries up with the latest census findings that found that just under half of all Australians were either born overseas, or their parents were.
But Bennett argues that is bad news for Australians who want to enter parliament, as it would lead to a “genealogical witch hunt” as there have always been people who “want to remove” parliamentarians. He brings up children of single mothers who may not know their fathers, or their history, and how, they could potentially also be disqualified, if it was revealed their father held a foreign citizenship which could be passed down by descent.
I’ve heard that argument before, but I think it has a slight flaw in that if the father wasn’t never listed on the birth certificate, but in any case, that particular scenario isn’t relevant to any of the seven cases we’re watching today.
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Bennett is also focussed on the concept of “indefinite citizenship by descent” that Italy provides, which he says is “offensive” to the constitution and should not be applied.
As we heard yesterday (and have learnt through this process) Italian citizenship is handed down through the generations, as long as the chain remains unbroken – that being, as long as no descendent has renounced their citizenship.
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David Bennett is back and is working through Italian law and how it applies to Matt Canavan. He goes through the history of Canavan’s grandmother and mother and says that, when his grandmother naturalised, she attempted to also naturalise her daughter.
But the entry with Canavan’s mother’s name, Bennett says, was scrubbed out, presumably by a clerk, with a note that she was Australian born and it wasn’t needed.
That was brought up to highlight some of the complexities of the case.
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Good morning and welcome to day two of the citizenship hearings
There was quite a lot of information to take in yesterday and we have even more to disseminate today, so I hope you’ve had a substantive breakfast – or at least a strong cup of coffee.
If you need to catch up on the day’s events, you can find the transcript of yesterday’s proceedings here.
But if you don’t have that much time – and let’s be honest, who does – my colleague Paul Karp wrote an excellent wrap of the day’s proceedings, which you’ll find here.
We heard from the solicitor general, Stephen Donaghue, and barristers Bret Walker and David Bennett yesterday, who were arguing on behalf of the government, Barnaby Joyce, Fiona Nash and Matt Canavan. All those arguments touched on the other four MPs involved in these cases – Larissa Waters, Nick Xenophon, Scott Ludlam and Malcolm Roberts – but we are yet to hear their substantive arguments.
We’ll get to that – and to the former New England MP Tony Windsor, who is challenging Joyce’s eligibility, over the coming days.
But we still have more to hear on Canavan’s case. When the court adjourned yesterday, Bennett was just getting started on his interpretation of section 44, so prepare for excitement overloads.
I’ll be sitting in the high court overflow court all day, so if you have any burning questions you can hit me up on Twitter @amyremeikis and of course there is also the comment stream, which I will do my best to browse through as the day goes on.
Let’s begin!
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