Mal­colm Roberts the vic­tim of high court 'mys­ti­cal process', lawyer ar­gues

The Guardian Australia - - Headlines - Paul Karp

Mal­colm Roberts’ lawyer has de­fended his fail­ure to re­nounce his Bri­tish cit­i­zen­ship by ar­gu­ing when his Aus­tralian cit­i­zen­ship was recog­nised in 1974 Bri­tain was not a for­eign power and both coun­tries had the same sov­er­eign.

In tense ques­tion­ing in the court of dis­puted re­turns on Thursday, Robert Newlinds was ac­cused of at­tempt­ing to put a gloss on ear­lier find­ings by jus­tice Patrick Keane that Roberts knew of the “real and sub­stan­tial prospect” that he was Bri­tish when he nom­i­nated for the Se­nate in 2016.

The third and fi­nal day of hear­ings into the el­i­gi­bil­ity of seven par­lia­men­tar­i­ans con­cluded on Thursday af­ter­noon, with chief jus­tice Su­san Kiefel not­ing the need to pro­vide a de­ci­sion “as soon as pos­si­ble” but stat­ing it was not al­ways pos­si­ble to im­me­di­ately do so.

No in­di­ca­tion was given of when the out­come of the case will be de­cided, with the fate of the deputy prime min­is­ter, Barn­aby Joyce, sen­a­tors Matt Cana­van, Fiona Nash, Nick Xenophon and Roberts still un­clear.

Ear­lier, Newlinds claimed cros­sex­am­i­na­tion of Roberts had “mis­fired” by doubt­ing his as­ser­tion that he al­ways be­lieved he was Aus­tralian.

Newlinds sub­mit­ted that Roberts, who was born in In­dia to a Welsh fa­ther, was a Bri­tish sub­ject who gained Aus­tralian na­tion­al­ity by his de­ci­sion to move to Aus­tralia not by a process in 1974. That process did not nat­u­ralise Roberts but rather for­mally recog­nised his cit­i­zen­ship, he claimed.

The so­lic­i­tor gen­eral, Stephen Don­aghue, re­jected that con­clu­sion, not­ing that Bri­tish sub­jects were still “aliens” un­til they were nat­u­ralised.

Newlinds suggested it was “unAus­tralian” to recog­nise a dif­fer­ence be­tween “nat­u­ral-born” and nat­u­ralised Aus­tralians, who he termed “im­mi­grant Aus­tralians”, and said that in 1974 there was no con­cept of “Bri­tish cit­i­zen­ship” be­cause “we all had the same sov­er­eign, and none of us were a for­eign power”.

Don­aghue, on be­half of the at­tor­ney-gen­eral, has sub­mit­ted that Roberts is in­el­i­gi­ble be­cause he had a level of knowl­edge of his for­eign cit­i­zen­ship suf­fi­cient to make re­ten­tion of the cit­i­zen­ship a vol­un­tary act.

Newlinds said that, ac­cord­ing to the 1999 case of Sue v Hill, Bri­tain was de­fined as a for­eign power in 1986 but at the time “no bells rang out in the com­mu­nity” to alert peo­ple of the le­gal change.

“With­out do­ing any­thing, [Roberts] went from qual­i­fied to dis­qual­i­fied,” Newlinds said in what amounted to a “mys­ti­cal process” de­cided by the high court.

Re­peated ques­tions from the bench cast doubts on the rel­e­vance of his­tor­i­cal cases on cit­i­zen­ship be­fore 1974 and di­rected Newlinds to make sub­mis­sions on Roberts’ cit­i­zen­ship sta­tus in 2016.

Newlinds de­fended the fo­cus on 1974, ar­gu­ing the state of the law at the time meant that Roberts’ per­cep­tion that he was an Aus­tralian and only Aus­tralian was “per­fectly rea­son­able”.

“I accept that by the time we get to 2016, times have changed, the red line has ei­ther moved or the world has moved around Roberts,” Newlinds said, but suggested it was “not rea­son­able to ex­pect him to have no­ticed” his change in sta­tus as a ci­ti­zen of a for­eign power.

Roberts’ case ar­gues that be­cause he al­ways be­lieved he was not Bri­tish he did not have the ac­tual level of knowl­edge that should be the bar for in­el­i­gi­bil­ity.

Newlinds noted that Keane had not found Roberts knew he was Bri­tish, only that there was a “real and sub­stan­tial prospect” that he was. He ar­gued that the com­mon­wealth had never shown that that level of knowl­edge was suf­fi­cient to dis­qual­ify him.

Un­der ques­tion­ing from Keane, Newlinds con­ceded that an “hon­est be­lief” that was “ir­ra­tional or un­rea­son­ably held” would not save a dual na­tional from in­el­i­gi­bil­ity.

Ear­lier, the friend of the court Ge­of­frey Ken­nett warned that the com­mon­wealth’s con­struc­tion of sec­tion 44 re­quired the court to de­ter­mine the sub­jec­tive state of mind of par­lia­men­tar­i­ans, and fac­tual ques­tions over their knowl­edge could lead to dif­fi­cul­ties judg­ing the cred­i­bil­ity of wit­nesses and even turn on “ac­ci­den­tal fac­tors” like whether a con­tra­dic­tor sub­jected a politi­cian to cross-ex­am­i­na­tion.

Ken­nett con­ceded that the fact that Xenophon’s sta­tus as a “Bri­tish over­seas ci­ti­zen” did not grant him a right to en­ter and live in the UK “may be a rea­son to find Xenophon isn’t a ci­ti­zen” for the pur­poses of sec­tion 44.

Nev­er­the­less, Ken­nett sub­mit­ted that Xenophon could be ex­pected to owe a duty of loy­alty and gain some pro­tec­tion from Bri­tain as a re­sult of that sta­tus. Jus­tice Keane suggested the fact Bri­tain gives a dif­fer­ent la­bel to “over­seas cit­i­zens” may tend to sug­gest a “real dif­fer­ence of sub­stance” and that over­seas cit­i­zens are “dis­tinctly not” full cit­i­zens.

In sub­mis­sions in re­ply, Don­aghue re­turned to his­tor­i­cal ma­te­rial that showed at the time of con­sti­tu­tional con­ven­tion de­bates the framers did not ev­i­dence an in­ten­tion to ex­clude dual cit­i­zens who were un­aware of their al­le­giance to a for­eign power.

Brett Walker, coun­sel for Joyce and Nash, ar­gued that a “lit­eral, hard-line” read­ing of sec­tion 44 would al­low for­eign laws to pre­vent dual Aus­tralian cit­i­zens stand­ing for par­lia­ment, even if they had no real con­nec­tion to coun­tries of their dis­tant an­ces­try.

Pho­to­graph: Regi Vargh­ese/EPA

One Na­tion se­na­tor Mal­colm Roberts is de­fend­ing his el­i­gi­bil­ity to sit par­lia­ment in the high court cit­i­zen­ship case.

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