We have come to the end of the road, at least as far as the citizenship hearings are concerned.
And what have we learned?
A lot. But was has been made clear? That’s an entirely different question.
We won’t know anything for sure until the court hands down its decision, and we don’t know when that will be.
But I thank you for joining me on this wild ride. You have all made what could have been three days of hell more than bearable with your insights, jokes and takes on what was being put forward.
A massive thank you to Paul Karp as well for his assistance. His final wrap will be up later this afternoon.
I’ll catch you again for Politics Live on Monday, when parliament resumes as normal and will bring you the result from this case as soon as it drops. Catch me on twitter on the mean time – @amyremeikis
And please have a lovely weekend.
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The court has adjourned.
The chief justice, Susan Kiefel, has brought proceedings to a close. She says the court is aware of the need for a speedy decision, but “it is not always possible to do so immediately”.
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Walker says once you know of your citizenship, “you should get rid of it” and if you can’t, you “run the gauntlet” to take reasonable steps.
But you can only do that if you know, he says.
He rests.
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But Walker has a few things to say about why Nash and Joyce are different from Roberts. He is again talking about the differences in the cases between those who were born in Australia and those who were not.
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Walker says the right of an Australian citizenship should not be affected or “gutted” by foreign citizenship.
One of those rights, being, presumably, the right to stand for and sit in parliament.
Again, I would suggest there is a way to stop that, to just check your citizenship status before you sign the form which says you comply with the constitution, but not only am I not a lawyer, I am also not a MP.
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Citizenship, including foreign citizenship can be “indelible”, Walker says.
But he doesn’t believe foreign citizenship, which has not been voluntarily obtained or retained, leads to split loyalties.
All this talk about loyalties and allegiances comes back to what the authors of the constitution meant by section 44.
And it comes back to the new law this court could potentially create, if they find in favour of the government MPs et al. That would narrow section 44 (i) quite considerably.
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Paul Karp has written up an excellent account of Malcolm Roberts’s state of mind, and why his counsel said it mattered, if you need another hit.
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Matt Canavan's case has concluded
Nick Xenophon’s counsel chooses not to submit anything in reply.
Bret Walker is back, arguing again for Barnaby Joyce and Fiona Nash.
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Bennett says they are not asking the court to find the Italian law unconstitutional; which was a point brought up by the friend of the court.
He also says nothing which has been put forward by anyone has affected the case he put forward.
He again contends that there is debate over whether Canavan was ever an Italian citizen, that he never believed he was an Italian citizen and he did all he could to never become one, because he decided not to fill out the documents his mother told him about in 2006.
He asks the court to be as quick as it can in its decision and, if possible, to put forward its decision and publish reasons later. At the pleasure of the court of course.
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Bennett again addresses Windsor’s case and says Canavan not only had no split allegiances, he couldn’t have been called on by Italy to do anything. “How could Italy have forced anything?” he asks.
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Bennett essentially argues that not everyone can be expected to know their citizenship status. That is directed at some of the arguments from Justin Gleeson and Ron Merkel that a lot of what we have heard about citizenship is common knowledge within the public.
Bennett says that perception can not be considered the whole perception.
He also takes aim at allegiance and brings up how Catholics, who technically owe allegiance to the Vatican, are not seen as having split loyalties, with a case which attempted to test that thrown out for being “frivolous”.
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The SG rests and David Bennett on behalf of Matt Canavan is back
Bennett also has some things he would like to say in reply to what has been raised.
Bennett is also taking aim at this idea of knowledge of one’s circumstances. He says that is not a fair test.
In my case of course, Senator Canavan on the evidence believed he was entitled to obtain Italian citizenship if he chose to fill out and lodge a form. He chose not to fill in and lodge the form and in his mind was not an Italian citizen.
Bennett says it is “not fair to take a little bit of that and say, ’Oh he knew there was a connection,’” and then use that to say he was not eligible.
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Just on timing, we have about an hour to go, as far as high court hours are concerned. There are still some more submissions in reply to go.
So the court may need to sit a bit longer. We could be back here tomorrow morning. Won’t that be exciting?
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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 a week after Waters’s 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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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
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The court is back in session
And Justice Kiefel has just informed Newlinds he has 15 minutes left.
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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
— Matthew Killoran (@matt_killoran) October 12, 2017
More to come in the afternoon session.
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“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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The justices are again asking what the relevance is of the historical arguments.
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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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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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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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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Oh this is excruciating. High Court justices seem completely perplexed as to the relevance of Malcolm Roberts' QC arguments #Citizenship7
— Adam Gartrell (@adamgartrell) October 12, 2017
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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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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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?”
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.
Newlinds takes us to 1906.
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We’re being asked to go back in time and are now examining law from “colonial times”.
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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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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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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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This is all being raised because the high court, under cross examination, found Roberts was a dual-citizen when he was elected.
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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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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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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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.
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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”.
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Still on loyalty
High Court justice says "there's no assumption of any obligation of loyalty" to the UK in British and overseas subject status.
— Matthew Killoran (@matt_killoran) October 12, 2017
Moving on to Nick Xenophon’s case, Kennett is talking about the argument of citizenship. Xenophon’s counsel argued British overseas citizenship didn’t actually afford the right of entry or the right of abode, and therefore, wasn’t really citizenship.
The bench is asking Kennett about whether there are any examples of “the notion of citizenship divorced from the right of entry”?
“I am not aware of an example,” he says.
The bench is confirming that Xenophon did not undertake any notion of loyalty with the United Kingdom.
Kennett says he did not.
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The bench is now questioning Kennett over the arguments put forward by Justin Gleeson and Ron Merkel on the behalf of Tony Windsor yesterday, who took aim at the idea of “feeling” allegiance and how that plays into section 44.
Kennett avoids talk of feelings, but his interpretation of the law sounds to me quite similar to what the Windsor case was putting forward.
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We have heard a lot over the past two days about what the authors’ of the constitution actually meant to say in 1901 when they wrote section 44.
Kennett says that reading meaning into the drafts takes us down a path of rewriting it, instead of interpreting it.
“Such matters are at least to a substantial degree voided by the operation of the choice of law ruled,” he says.
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For those who can’t get enough, or need something to do to kill some time, yesterday’s transcript can be found here.
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We heard from Matt Canavan’s counsel on Tuesday, where he quoted from an report, compiled by experts in Italian citizenship law. He accurately pointed out there was some debate in the report over whether Italian citizenship was provided automatically, or whether one had to take active steps to activate it. But the report also found that under the 1983 law, which made Canavan’s mother an Italian citizen by descent, because her mother (Canavan’s grandmother) hadn’t naturalised until after she was born, Canavan also became a citizen by descent. It’s not unusual for counsel to minimise arguments which don’t entirely line up with their cases, and the court does have copies of the entire report. You can read more about it here
With this being the last (scheduled) day for the hearings, attention is turning to when there will be a decision. That’s one of those how long is a piece of string questions - there is some chatter that there could be a decision on some of the cases as early as tomorrow, but keep in mind that is just chatter from interested parties and not an insight into the bench. Others think the high court could hand down its decision sometime in the next week, but reserve reasons. But given the pressing need for an answer, the general consensus is we’ll have a decision sometime between tomorrow and the end of the month.
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Geoffrey Kennett, who is acting as the amicus curiae - friend of the court - is just finishing up some of what he started yesterday.
He’s not representing anyone, just expanding on some points of law which have been raised as we are going along. It is nothing we haven’t heard previously, but I’ll let you know if he challenges a point which has been raised.
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We are in the overflow court and the proceedings are about to get underway.
Malcolm Roberts has been spotted in the court this morning. He is the only MP who has attended these proceedings.
Good morning and welcome to the third and final day of the citizenship hearings
I hope you are well rested – we have a big day ahead of us.
The cases were set down for three days, so this is the final day of those scheduled hearings.
We still have the Malcolm Roberts case to get through and then the replies to the submissions from the counsel representing the other six MPs involved in this.
Yesterday we heard the closing arguments from David Bennett on behalf of Matt Canavan. Nick Xenophon’s case was put forward by Andrew Tokley who argued the sub-tier of citizenship Xenophon was found to have – British overseas citizenship – did not actually afford him any rights of citizenship – not the right to abode, not the right of entry and not consulate assistance. That’s because, he argued, Xenophon wasn’t registered as a British overseas citizen. Apparently there are tiers within the tiers.
The Greens had their go – Brian Walters probably had the hardest time in front of the bench yesterday. He was arguing his clients, Larissa Waters and Scott Ludlam, had done the wrong thing before their nomination but were right to resign – and everyone else involved should have as well. That was based on an argument about what was “reasonable” to know about your family history. He finished with what became the foundation of his argument – that “negligence should never produce a more favourable result than diligence”.
The former solicitor general Justin Gleeson then stepped up on behalf of Tony Windsor, the former independent MP for New England, who is challenging Barnaby Joyce’s eligibility for election. Gleeson’s argument was the split allegiances that arise from dual citizenship – which the constitution is attempting to protect the parliament from – have nothing to do with feelings and everything to do with the status. He argued Joyce knew his father was born in New Zealand, New Zealand’s citizenship law was known, it is not onerous to divest oneself of New Zealand citizenship and Joyce should have checked before one of his elections and didn’t. Gleeson, along with Ron Merkel, told the court the authors of the constitution meant for section 44 to be taken literally and, if they didn’t, they could have made adjustments – such as adding “knowingly”, or altered other sections – but they didn’t. Gleeson argued if the court found Joyce was not in breach, it risked creating 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.
This morning, it should be all about One Nation MP Malcolm Roberts. Roberts has said publicly he has the strongest case – because, despite not believing he was British, he took steps to renounce any UK citizenship. Unfortunately, those attempts involved sending emails to defunct email addresses, including one which ended in .sydneyuk, but not filling out the actual official form the UK home office requires, and paying the nominated fee, until well after the election. But the master of empirical evidence believes the court will find he took reasonable steps before his nomination.
Let’s see, shall we? As usual, look out for Paul Karp’s wraps on the most important parts of the day’s events and let your thoughts flow in the comment streams. If there are any burning questions, queries or just things taking your fancy, you can reach me on Twitter at @amyremeikis
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