Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon

[2017] HCATrans 201

[2017] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Canberra  No C11 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR THE HON. MATTHEW CANAVAN

Office of the Registry
  Canberra  No C12 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MR SCOTT LUDLAM

Office of the Registry
  Canberra  No C13 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MS LARISSA WATERS

Office of the Registry
  Canberra  No C14 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR MALCOLM ROBERTS

Office of the Registry
  Canberra  No C15 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
THE HON. BARNABY JOYCE MP

Office of the Registry
  Canberra  No C17 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
SENATOR THE HON. FIONA NASH

Office of the Registry
  Canberra  No C18 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
SENATOR NICK XENOPHON

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 OCTOBER 2017, AT 10.15 AM

(Continued from 11/10/17)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Mr Kennett.

MR KENNETT:   Your Honours, there is one aspect of the rule of recognition in Sykes v Cleary that I omitted to mention yesterday.  Your Honour Justice Gageler put to Mr Gleeson a hypothetical example involving a person who is a citizen of a foreign country pursuant to some exorbitant law, a seven‑generation law or something of that sort, but who welcomes and embraces that foreign citizenship.

For our part, we would say that case could be dealt with on one of two bases.  One which I think your Honour Justice Edelman suggested was that it might engage the first limb of the paragraph, at least if the person had done something identifiable and public in order to embrace a citizenship, such as getting a passport from the foreign country, something of that kind.  In connection with that, can I just note at paragraph 10 of our submissions we refer to a passage in Nile v Wood which refers to a formal or informal acknowledgement of allegiance.

The other way in which this might be approached, as your Honour Justice Nettle I think suggested, was that there might be some kind of estoppel against the person and the Court might say, having taken the benefit or having embraced the foreign citizenship, this person is not then entitled to come to court and say the law by which he or she obtained it is exorbitant.  So, those are the ways in which we would propose that that kind of example might be dealt with.

GAGELER J:    So the law could be exorbitant in respect of its application to one person but not exorbitant in respect of its application to another person, on that submission, or is there some sort of estoppel?

MR KENNETT:   Certainly on the first way, we suggest, the answer would be yes.  On the first way one would be in the first limb an acknowledgement of allegiance and one would not need to concern oneself with exorbitant laws, but what your Honour puts to me is more generally right. 

We understand Sykes v Cleary to say that, for example, if two candidates presented themselves, both citizens of the same country under the same law, one had not made any attempt to renounce the citizenship, the other had made an attempt to renounce but had been blocked by an unacceptable provision such as a million dollar fee or something of that kind, the Court might very well say the first candidate is disqualified, the law operates, the candidate is disqualified, but in relation to the second person the Court might say, insofar as renunciation is prevented, the law is exorbitant.  So it is not an all‑or‑nothing proposition in relation to the foreign law as a whole.  That becomes significant in relation to Senator Canavan, as I will come to later.

Your Honours, we next propose to say something about the invocation of purpose in the arguments of construction. We do not wish to be taken to suggest here that the Constitution is an ordinary statute but we do say that the task of construing a written Constitution has at its heart a deal of similarity with the task of construing a statute and that the construction cases such as Certain Lloyds Underwriters, which we referred to in the outline, can teach us something about the exercise.

One must, we say, begin with the words and end with the words and ultimately, to the extent that one uses matters of context and history and purpose – to the extent that one uses those matters one is using them to help give meaning or identify the preferable meaning of the words that are in the text.

The Solicitor‑General’s argument, insofar as it attributes a purpose to section 44(i), which we see in his written submissions at paragraphs 20 to 23 and which was developed to some degree on Monday, has, we would submit, echoes of the argument in Re Day (No. 2), which your Honour Justice Gageler criticised at around paragraphs 99 and 100.  I do not need your Honours to go there.  The vice in the argument, we would suggest, is that it identifies a purpose or perhaps a mischief which is narrower in its scope than the natural meaning of the text and then it seeks effectively to replace the text with that statement of purpose.  That, we say, is not a legitimate interpretative technique.

We make another closely related criticism of that approach as well.  It is no doubt possible for there to be cases where a constitutional prescription expressed in unqualified terms might be found, in light of its purpose, to have a more limited operation.  Your Honour Justice Gageler noted that possibility in Alqudsi v The Queen (2016) 258 CLR 203, at paragraph 125. But for that kind of reasoning to come into play one needs two things, we would say. First, one needs an available construction of the text that fits plausibly with the more limited operation that is proposed.

Secondly, one needs the broader, literal construction to be unacceptable for some reason – unacceptable because it conflicts with the purpose thus identified or because it conflicts with the constitutional scheme of representative government more broadly. Neither of those things can be said about the construction which we propound of section 44(i). One can, of course, argue at the level of policy about whether people holding foreign citizenships ought be entitled to stand for Parliament. We have seen that the Senate Committee, in 1981, recommended that the paragraph be deleted altogether. So, too, although I do not have the reference to hand, did the Constitutional Commission later in the 1980s.

Despite those policy arguments, though, as we construe the section, it does not render any Australian irremediably incapable of being chosen to sit in Parliament. While it may in certain cases create a barrier to election, it is a barrier capable of being removed and it is not a barrier, we say, that conflicts in any substantial way with the form of representative democracy for which the Constitution provides.

There are two further quite short points that I wanted to make about the use of purpose in this exercise of construction. Firstly, if one looks at the text of section 44(i) itself rather than the losses that might have been put on it, one can discern a purpose of not only avoiding split loyalties but avoiding the risk or appearance of divided loyalties.

This is something we identify in paragraph 14 of our written submissions and develop a little at paragraph 17.  It is at least consistent, we say, with the language of Justice Brennan in Sykes at page 113, which I will not take your Honours back to, but where his Honour spoke of foreign laws that could potentially result in the enforcement of a duty. 

If that associated purpose is perceived in the statutory language, as we say it can readily be, then there is no conflict between a literal construction and the evident purpose of the provision.  Secondly, there is not only no conflict but no disjunction.  The second point is that whether or not one perceives that additional purpose, the issue of construction that presents itself is not so much what the purpose is of the law but how far the law goes in pursuit of that purpose.  In that connection, we have given your Honours the reference to a passage in Mammoet – which I do not need to take you to.  It is a statutory construction case. 

As we say in paragraph 20 of our submissions, the second limb of section 44(i) – and by that we mean all of the words that are introduced by “is” – that can be regarded as what we call a per se provision – that is, it casts its net broadly, perhaps on one view more broadly than necessary, in the interests of certainty and relative ease of operation and that is certainly not an unusual thing for a law to do.

Those are the aspects of the question of purpose that I wanted to emphasise.  Can I then put a couple of brief points about the history?  Your Honours have seen that the colonial Constitutions in Australia and in Canada contained what was referred to yesterday as “vacancy provisions” – that is, they operated to vacate the seat of an existing parliamentarian who took up another nationality.

One can readily imagine that the drafters of those documents might have been quite relaxed about whether or not the electors chose somebody with a foreign citizenship to represent them but might have thought that somebody once in Parliament chose to become a foreign citizen that ought be something that the electors should have a chance to do something about.  At any rate, whatever the underlying thinking might have been, there were vacancy provisions in all of those Constitutions but not anything that erected an express disqualification on being chosen based on foreign nationality.

I think in our written submissions we said from its earliest drafts that is not completely right. The first Inglis Clark draft and the first official draft, which your Honours see in our friend’s historical bundle, does not have an equivalent of the current section 44, but after the cruise on the Lucinda when the drafting committee comes back with the next draft there is, as the Solicitor‑General has pointed out, a forerunner of the current section 44(i) which in a departure from all of the colonial precedents has a disqualification on election based on foreign citizenship. So, at that point there is a departure, and one assumes a conscious one, from all of the precedents including even the Western Australian Constitution enacted in the previous year.

For that reason, the colonial precedents cannot be used, we say, to infer some kind of more limited purpose in section 44(i) than the text itself suggests. Words and phrases are borrowed from the earlier constitutions, but the provision with which we are dealing does work, which was not done by any provision in those earlier precedents.

If one then goes to the drafting history of the Constitution, the comparison of the various drafts which has been undertaken by others already shows that somewhere – late 1897 or early 1898 – the drafting committee changed a provision which had focused on a person having done an act into a provision which fastened on a person’s status and, without knowing anything more, that would suggest a conscious change of focus and the matters which were put to your Honours yesterday by Justice Merkel indicate that it is plausible to suppose a deliberate change of focus because of the problems that might have been thought to the attend previous draft. So that ‑ there is a degree of speculation about that, but that tends to support the inference we say one would normally draw from the fact that a drafter has changed in a fairly important way the terms of a provision.

Now, the extrinsic material, if I can call it that, does not justify a different conclusion, we say.  At most, it indicates a subjective belief on the part of Mr Barton that the changes made by the drafting committee did not affect the sense of provision, a belief which, with respect, cannot be right and is not right on the Commonwealth’s construction of the provision or on ours.

I do not need to remind your Honours what was said in Cole v Whitfield, but Mr Barton’s subjective belief about the effect or the intention of the changes he had been involved in creating does not assist the Court in understanding the meaning of the provision as adopted.

If I could mention a couple of points in the Commonwealth’s bundle of historical material, firstly the extract from the debates at tab 13, on 16 March, appears fairly clearly to concern a later tranche of amendments and your Honours can put that to one side.  Prior to that, at tab 12 one sees that the clause was debated and at page 1931 the clause is set out with paragraph I in its final form, and prior to that your Honours have seen in the extra few pages that our learned friend handed up, Mr Barton expressing the view that the changes that had been effected up to 1 March had not changed the sense of any provision.

What we would seek to note about that, apart from the problem of principle with seeking to act on that expression of view was that after Mr Barton had said those things there was a time for members to recommit clauses for further debate.  One of the clauses that received further debate the Monday after the discussion I have just been referring to was clause 45 as your Honours have seen with 45(i) in its current form.

There is no debate directed to the clause but one can take it that delegates to the Convention had their attention drawn to it, had a chance to look at it, formed their own views about what it did and whether it was a good clause or a bad clause and Mr Barton’s assessment of its significance the previous Friday, to the extent that it was useful in any event, recedes somewhat in significance in the light of that.

I would also like to note before I leave this bundle that reference was made behind tab 12 to what Mr Isaacs said at page 1942 in the right‑hand column about the attainment of brevity. I just note that that was a statement that he made about the new clause 46, which you see at the top of that column and which is now section 45. He refers to that as having incorporated the provisions of clauses 46, 47 and 48 in the earlier draft. He is just not talking about, we submit, what is now section 44. One really cannot draw anything from that. The final point that we would make about these ‑ ‑ ‑

NETTLE J:   Just before you pass from that, in the last two lines in the right column of page 1942, Mr O’Connor makes the observation that the clauses, which I take to be 46, 47 and 48, are now consolidated in 46, work in exactly the same way that they did previously.

MR KENNETT:   Yes.

NETTLE J:   Inasmuch as their operation is predicated on 44(i), is there anything to be derived from that to the effect that he thought there had been no change to the operation of 44(i)?

MR KENNETT:   Perhaps.  This, I suppose, illustrates why the Court has always been reluctant to indulge analysis of what individual delegates say.  One could perhaps see that in what Mr O’Connor says, but it is hard to take anything from the substance ‑ ‑ ‑

NETTLE J:   Thank you.

EDELMAN J:   What do you understand to be meant by Mr Isaac’s response that he had “no recollection of the committee coming to such a determination”?

MR KENNETT: I do not think I can help with that, your Honour. At the distance of almost 120 years, it is opaque at least to me. The final point we would make about the history – I am in paragraph 9(c) of my outline now – is that in any event, as our learned friend the Solicitor‑General accepted, the construction for which he contends does not align with the purpose said to be revealed by the drafting history, that is to say, on no construction of section 44(i) was the change made by the drafting committee merely one of drafting.

The history therefore does not help to explain the meaning of the words that are now in the Constitution, so to appeal to history in the attempt to support the construction that our friends propound thus, we say, becomes an exercise in rewriting rather than construing the text. That is not something that the Court would do.

I then wanted to make a couple of points about the consequences of the competing constructions – not so much consequences in the sense of consequences for the operation of the law in a body politic rather than individual consequences.  The first point we make is, a lot has been said by those on the other side of the Bar table about the potential complexity of determining some questions of foreign law relating to whether somebody is a citizen and also of the fact that whether somebody is a foreign citizen or not may depend on quite accidental matters of their history – or their family history – quirks, as my learned friend, Mr Bennett, put it.

We would say, firstly, on any view, the existence of foreign citizenship at least may be in issue.  That is to say, nobody is disqualified unless they have a foreign citizenship.  So, if a petitioner, for example, comes before this Court and says that such and such a Member of Parliament should not have been declared elected because they were disqualified, there is an issue raised because they were disqualified under paragraph 1.  There is an issue as to whether that person is a foreign citizen.  It may be that the short answer is – on our friend’s construction – it may be that the short answer is they did not know and, therefore, it did not bite.  But, still, even on that construction there is, at least initially, an issue as to the existence of the foreign citizenship.  So, the fact that that might be complicated does not assist in distinguishing between the competing constructions.

There could be rare cases where a foreign citizenship is not knowable – somebody who was an orphan or who never knew their father’s identity, or things of that sort – one would expect, at least ordinarily, no such question would be raised in those cases.  There would be no proper basis for anybody to assert that the person had a foreign citizenship.  But, those difficult and hypothetical cases ought not govern the construction of the provision.

Finally, as to the prospect of genealogical witch hunts, such matters are – at least to a substantial degree – avoided by the operation of the choice of law rule which we have already dealt with.  So, the complexities that attend foreign citizenship, or the ascertainment thereof, may be real but we say do not assist in choosing between the competing constructions.  

There are a couple of problems, however, arising from our learned friends’ construction.  One of them is – and Mr Gleeson raised substantially this matter with your Honours yesterday – what happens under section 45(i), if anything, when a member or senator, such as the three senators with whom I am concerned, becomes aware during their term that they hold foreign citizenship?  If knowledge is critical then, on the face of it, they become at that point disqualified under section 45(i).  If voluntariness is critical, one needs to determine how long after the acquisition of knowledge their pretension of citizenship is to be taken to be voluntary.

EDELMAN J:   There is an added issue there as well, which is if they changed their mind.  So if the person, during a reasonable period of time, purports to renounce and then there is an administrative delay, as is likely to be inevitable, and the person changes their mind about renunciation during the delay.  At what point is the person then disqualified?

MR KENNETT:   That may arise as well.  None of that sits at all easily with the peremptory language of section 45(i), which might well be thought to have been intended to provide a degree of certainty as to who is entitled to be in the Parliament and who is not.  And it does appear that some massaging of that brief and apparently peremptory language is also required in order to achieve a grace period within which somebody who becomes apprised of their foreign citizenship can renounce it.        

We also make the point that our friends’ construction advantages a candidate who is incurious or obtuse over one who actually turns his or her mind to the possibility of foreign citizenship.  It is a short point.  It has been made by others.  I will not dwell on it, but it does suggest a reason why the founders would not have intended to create a provision that operate as our learned friends suggest.

We also make the point that, on our friends’ construction, the operation of a provision of the Constitution depends on the Court being able to make and making findings about a person’s subjective state of mind. Now, the requisite quality of knowledge itself is not entirely clear. The Solicitor‑General referred to it as “a sufficient degree of knowledge” and there have been references to “a substantial prospect” or language of that kind.

So the sufficiency of the knowledge and the degree of authoritativeness with which one would need to have been told about a potential foreign citizenship is also somewhat diffuse.  Further, we say that findings about a person’s state of mind will normally depend on that person’s evidence and may depend upon questions about that person’s credibility and the decision that the Court comes to on that matter – or the finding that the Court comes to on that matter could turn on quite accidental factors such as whether there is a contradictor in fact who chooses to lead any other evidence or to investigate or go behind the member or senator’s assertions about their state of mind, whether they are cross‑examined.

I just note while I am there that in Sue v Hill at paragraph 38, the plurality referred to the facts underlying the operation of 44(i) as “constitutional facts”, and they do have the character of facts upon which the operation of a constitutional provision of some importance to the country as a whole, not only to the individual parties, depends. 

Now, it is not ideal, we would say, at least for the determination of facts of that kind to turn potentially on whether somebody’s evidence is accepted and thus whether – about their subjective state of mind is accepted, and in turn on whether there happens to be an intervener or opposing party who wants to cross‑examine.

GAGELER J:   Mr Kennett, you would be forced to accepted that precisely those problems would arise in the administration of the first limb of section 44(i).

MR KENNETT:   Conceivably, yes, conceivably, although we would say in a rare case.

KIEFEL CJ:   Unless they were limited to some overt act.

MR KENNETT:   Yes.

KIEFEL CJ: But similarly, the second limb of section 44(i), if it were limited to some overt act, rather in the way in which the Attorney‑General’s submissions were opened, which is to say some voluntary overt act of acquisition of foreign citizenship or some evident overt act or omission by which foreign citizenship is retained, would the difficulties that you have referred to still arise? I accept that the Attorney’s submissions then went on into the area of knowledge and sufficiency of knowledge that you have dealt with, but my question is if the Attorney had restricted his submissions to voluntary act or voluntary retention, are we still faced with those difficulties?

MR KENNETT:   If the submission were limited to overt acts, then that would take away much of the force of what I have just said.  There might be questions in extremely rare cases about the voluntariness of such acts but on the whole the act would ‑ ‑ ‑

KIEFEL CJ:   Mostly the voluntariness would go with the overt acts, yes.

MR KENNETT:   Yes.  That construction, of course, has other difficulties in that it would really not add anything to the first limb but it is ‑ ‑ ‑

EDELMAN J:   That construction would have to then exclude voluntary omissions or voluntary retention unless the voluntary omission or retention were accompanied by some overt act, because otherwise it would be straight back into the knowledge question.

MR KENNETT:   Yes, your Honour.  So those are the points that we sought to make about the consequences of the competing constructions and how they might bear on the choice of the correct one.

Can I come then to the three individual cases of Senators Nash, Xenophon and Canavan? I would like to deal with each of them firstly on the basis – on the assumption that our construction of section 44(i) is accepted. As to Senator Nash, there appears to be no doubt that Senator Nash at the time of her nomination was a British citizen and on our construction that would be the end of the matter. There is some complexity in relation to the other cases.

As to Senator Xenophon, we understand there not to be any doubt that he was at the time he nominated a British overseas citizen. There is a question about whether he was therefore a citizen or subject of a foreign power within the meaning of section 44(i) and we would accept that the bare label that the foreign law applies to a person could not be determinative of that. The label may nevertheless be influential for what it says about how the foreign law regards or treats a person.

We would say that the critical question here for determining whether the status Senator Xenophon has amounts to being a citizen or subject is whether the foreign power under its law claims one as one of its nationals, expects loyalty from one and offers one protection in return. 

In light of our limited role, we would propose to offer no more than some brief and fairly tentative observations on the report of Mr Fransman in that connection, and really just to direct your Honours to some passages in it:  firstly, at appeal book volume 2, page 753, paragraphs 109 to 111, where there is reference to “a juridical relationship”, the state assuming responsibility for an individual and in 111, a reference to “British consular protection”, your Honours’ attention has been drawn to paragraph 113, which is really the main foundation of the argument the other way.

BELL J:   Absent the right of entry and the right of abode, do you suggest that the possibility of some consular assistance might give content to the notion that one is a citizen of a foreign power in circumstances in which, when you turn up at the boundary and you demand your right of entry as a citizen, you can be lawfully, by the law of that foreign power, turned away?

MR KENNETT:   We do.  In our contradictory role, we can see why ‑ ‑ ‑

BELL J:    Apart from the reference to the juridical relationship, where would we find in any authority the notion of citizenship divorced from the right of entry?

MR KENNETT:   We are not aware of an example, although the Court will be aware of cases where, for example, in the DPP v Joyce, Mr Joyce apparently was an alien born in the USA.  There might have been a question if he had been treated as having British nationality for the purpose of being attainder of treason.

Now, if he had come back with the officials knowing that he was actually American, there might have been a question whether he was allowed re‑entry.  I am speculating, though.  We do not know of a case, as your Honour says, where there has been citizenship in the absence of a right of entry and that may very well be a reason why one would find Senator Xenophon is not, for these purposes, a citizen.  Nevertheless, we are here to put the contrary view and we say it depends on protection on the one hand and loyalty on the other. 

I have referred to what Mr Fransman says about protection.  Can I then note in paragraph 121 which received some attention from Mr Tokley – one could read the opening line of that paragraph, not as an assumption of fact which would undermine an expert report unless made out but rather as an inference or an assumption – I will say an inference that Mr Fransman, as a lawyer, draws from the absence of anything suggesting the contrary of what he suggests. 

That might be one way in which paragraph 121 could be read and on that basis he has a view that a British overseas citizen has a duty of loyalty.  There in that same paragraph 128, he refers to it as a duty or a need to make an:

oath of allegiance to Her Majesty –

rather than – and he says it is:

Her Majesty in right of the UK –

rather than, as he says in 121:

loyalty to the UK per se 

The Court might wish to consider whether loyalty to the sovereign is different in substance from loyalty to the nation.

KEANE J:   Mr Kennett, looking at paragraph 124 on page 757, is it the case that a British overseas citizen takes the oath only upon registering as such? 

MR KENNETT:   I do read it that way, your Honour. 

KEANE J:   It is accepted as a fact, is it not, that Senator Xenophon has never done that?

MR KENNETT:   Yes.

KEANE J:   So, so far as his situation is concerned, he has not undertaken any obligation of loyalty and the extent of his relationship with the United Kingdom is limited to consular protection, that is to say, in other countries he can seek assistance.  That rather suggests that behind the formal distinctions, if you like – the labels of “United Kingdom citizen” rather than “British overseas citizen”, the labels are actually flagging a real difference in substance between someone who is a British citizen and someone who is distinctly not.

MR KENNETT:   The labels certainly point to a difference in treatment under UK law.  There is no doubt about that. 

KEANE J: Section 44(i) is concerned with subjects or citizens of a foreign power.

MR KENNETT:   Yes.

KEANE J:   Not someone who is accorded some level of protection but which is in fact distinctly less than citizenship of a foreign power.

MR KENNETT:   The notion of “citizen” or “subject”, we say, turns on an underlying and ancient concept of allegiance which we characterise as involving that reciprocity of loyalty and protection.

KEANE J:   But if it be reciprocity of loyalty and protection and other benefits, crucially one would have thought, the right of entry.  Here there is no assumption of any obligation of loyalty, if one reads paragraph 124 as one would ordinarily read it.

MR KENNETT:   It is right that there is no assumption of loyalty.  Whether there is an assertion of a right to loyalty by the UK is another matter.

KEANE J:   In respect of a person who will not even be allowed to enter.

MR KENNETT:   It is not a matter ‑ ‑ ‑

GORDON J:   There can be no assertion of loyalty to the UK because that is what 121 says, regardless of whether you are registered or not registered as a BOC.  There can be an assertion of loyalty to the Queen in the right of the United Kingdom but it cannot be to the power.

MR KENNETT:   Is the same as the duty of loyalty - I cannot take this very far, your Honours, and I am not here for a client seeking to ask your Honours to make findings on the facts.  The question to which your Honours need to try and find an answer in this expert report is not only whether there has been any acceptance or statement of loyalty or oath taken but whether, under the law of the UK, an obligation of loyalty is asserted against or expected from the Senator by operation of its law. 

There your Honours, I accept, do not have much to go on, although there are references to owing loyalty to the sovereign, which may or may not be the same thing as owing loyalty to the nation.  That is about as far as I can take Senator Xenophon’s ‑ ‑ ‑

GAGELER J:   What do we make of the first sentence of paragraph 130?  The reference to Joyce is reference to a treason.

MR KENNETT:   Yes.  A question is left open which, were it answered, would be of great assistance in resolving the issue that I have flagged.

GAGELER J:   Yes.

MR KENNETT:   Can I mention Senator Canavan then, again on the assumption that our construction of section 44(i) is ‑ ‑ ‑

EDELMAN J: Just before you move on, I take it that it is no part of your submission to suggest that the third limb of section 44(i) or the second part of the second limb of section 44(i) has any independent work to do from the question of foreign citizenship - in other words, that “the rights or privileges of a subject or citizen of a foreign power”, you accept, mean all of the rights and privileges, not some of the rights and privileges?

MR KENNETT:   It would at least mean the main or ordinarily expected rights and privileges.  So those words would not in themselves add anything against Senator Xenophon.

EDELMAN J:   The irreducible minimum, at least?

MR KENNETT:   Yes, there does seem to be some sort of notion of ordinarily expected rights and privileges in there which, at least in the present case, does not – I am not going to say assists me, as it is not my role, but does not count against the Senator.  Turning to Senator Canavan, again ‑ ‑ ‑

KEANE J: Well, it might count for him, might it not? It might actually count for him in the sense that if in the second part of the second limb the reference to “the rights and duties of a citizen” means either all the rights or the rights that characterise the citizen, then when it speaks of citizenship of a foreign power it must encompass those rights. The mere fact that a foreign power calls someone a citizen, if they do not get those rights it is not citizenship, as we understand it, in applying section 44(i).

MR KENNETT:   We would respectfully disagree with that.  The section sets them up as alternatives – so “subject or a citizen” or has “the rights of a subject or citizen”.  One apprehends that the main reason for adding the second set of words is to catch cases where the label might not be applied but, nevertheless, the rights of a citizen are there.  Now, that might mean all the rights of a citizen or some irreducible minimum.  But it would not reflect back, we say, on the content of the earlier expression “citizen or subject”.

BELL J:   But your acceptance that it cannot be sufficient that the foreign power attaches the label “citizen” to answer the question in 44(i) and that necessarily invites attention to the concept that there must be some qualities of being a citizen that involve an irreducible minimum, since otherwise the label would suffice.

MR KENNETT:   Yes.  Your Honours, turning to Senator Canavan, there appears now to be an issue as to whether the Senator was at the time of his nomination an Italian citizen.  The proposition emerged with clarity only on Monday afternoon.  It is not a matter for us to complain about surprise because we do not have a client who is prejudiced by that, but it would be obviously preferable for that issue to have been crystallised in some clearer way much earlier in this process so that something could have been done to resolve it before the matter came to the Full Court. 

May we make three fairly brief observations about how the Court might resolve that question of foreign law, which is a question of fact?  Firstly, if the Court is asked to find that the Italian law which renders Senator Canavan a citizen is unconstitutional, that obviously raises very large questions which were touched upon recently in Plaintiff M68 and, to say the least, the Court would be slow to embark on that question, especially where the asserted or suggested unconstitutionality emerges from the consequence of a decision of the Constitutional Court of Italy.

The second point we would make is that, to the extent that our friend seeks to avoid that problem by saying, well, there is an issue, it is doubtful and so it has not been proved against Senator Canavan that he was a citizen, that we say does not avoid the problem.  This of course is not ordinary inter partes litigation.  There is no moving party except the Senate.  There is no contradictor on the facts. 

Our friend seeks to place the onus of proof on someone who does not exist and then claim victory when the onus is not met.  In truth we would say the concept of an onus cannot have any useful application in a case such as this that proceeds on a reference.  It may be different in an electoral petition, but here one cannot resolve these questions of high constitutional importance just by appealing to an onus.

GAGELER J:   But what is the level of satisfaction we need to arrive at?  Is it balance of probabilities or is it something different?

MR KENNETT:   I am not aware of any law on this, your Honour, but instinctively it would be akin to an administrative decision‑maker who needs to be persuaded of a matter.

NETTLE J:   Comfortable satisfaction.

MR KENNETT:   Something of that kind, yes, but one would hesitate to apply notions drawn from inter partes litigation which are not helpful unless there are actual parties contending for competing positions.  Even if there were a factual contradictor, and even if he or she needed to prove the content of Italian law, if our friend sought to meet that by saying that the law of Italy was unconstitutional, or might be, then one would be back with the act of state problem.  The Court would, if that argument were pressed, the Court would need to hear argument on a set of quite profound issues. 

Thirdly, in relation to Senator Canavan, we would just invite the Court’s attention to two passages in the report of the experts, which again is in appeal book, volume 2.  Firstly, at page 318, where question 4 is answered and your Honours will see what the experts said in relation to 4(a).  The other passage which may be of assistance begins at the bottom of page 322, paragraph 4.2, which is the introduction to the discussion which our learned friend took your Honours through.

If the Court cannot reach a reasonable degree of satisfaction either way, that, we would submit, raises a question about whether the evidence in this case is in a proper state for question (a) to be answered in relation to Senator Canavan.  That is all I can say on that. 

The next question in relation to Senator Canavan is whether, assuming now that he was an Italian citizen, the Italian law is exorbitant, which I use as a shorthand for saying a law which the Court would not apply for purposes of section 44, and as I indicated in answer to your Honour Justice Gageler earlier this morning, the question of whether a law is to be applied or not is not an all‑or‑nothing question in relation to the whole body of the foreign law.

The Court may decline to apply a foreign law to a particular extent or in a particular operation; so that to the extent that the Italian law here confers citizenship by descent in an unlimited fashion, clearly it may reach a point where the connection of a person to Italy is too tenuous and the Court would not apply it.

We would say in its application to Senator Canavan that point has not been reached and the foreign law would be applied.  Your Honours have seen that both of the Senator’s maternal grandparents were born in Italy and on that basis he has a connection of the kind which is sufficient for Italy to recognise him as a citizen and offer him its protection, should he want it, and ask for his loyalty.

EDELMAN J:   If this is, on your submission, just an example of the question of recognition of foreign laws in determining the meaning of “foreign citizen”, albeit a question that is informed by the constitutional imperatives underlying that, would there be any difference between the exercise in this case and the exercise in any other case of recognition of foreign laws which would permit, in this case, the Court to say the foreign law will be recognised for this purpose, say in relation to Senator Canavan, but not for other purposes?  In other words, are there any other cases ever where a court has recognised a foreign law for limited purposes?

MR KENNETT:   I cannot refer your Honour to one but we do take it to be at least implicit in Sykes and, with respect, a sensible approach to the provision to say that a foreign law may be recognised to an extent or in an operation but not in another.  I suggested the example earlier this morning of two people caught by the same law where one has tried but failed to renounce the foreign citizen and the other has not.  It seems to be at least implicit in Sykes that there be a difference in the extent of recognition of the same foreign law between those two cases.  It has some affinity with the way that State laws are treated under section 109.  They can be inoperative to an extent.

GORDON J:   Does that also extend to operations, so that if you had a retrospective law it would only operate prospectively?  You could in effect select to adopt it forward thinking rather than backward thinking?

MR KENNETT:   In the present context?

GORDON J:   Yes.

MR KENNETT:   It may well, yes.  Senator Canavan, of course, was rendered an Italian citizen from birth in the light of a decision of the Italian Constitutional Court three years after he had been born.  At least through the eyes of an Australian lawyer, that does not make it retrospective – it is not an exercise of retrospective law making.  It is a law which was there and whose proper effect was later expounded by the Court.  So, we cavil with our learned friend’s description of this as unilateral and retrospective, but probably nothing turns on that because however one describes it, it happened a great many years before Senator Canavan’s conversation with his mother and a great many years before he ever thought of standing for Parliament.

Could I move then to – I have said what I want to say about the cases on the basis that our construction of section 44(i) is accepted. If actual knowledge, or something approaching it, is a requirement of the relevant test, I wanted to refine slightly what we say at paragraphs 76 and 77 of our written submissions.

I have noted that it is not our role to make a submission as to what the Court would find as facts concerning – including facts concerning the states of mind of the three senators.  We, therefore, do not make a concession that their evidence is to be accepted.  It is not really a concession

for us to make.  Rather, we have assumed that that is what the Court would do on the basis that the evidence is unchallenged and on that assumption it would follow clearly that, on the Commonwealth’s construction of the section, the three senators are not disqualified.

Finally, I submitted yesterday that Mr Kardamitsis in Sykes Case – and possibly Mr Ludlam in these cases – could only be disqualified on the Commonwealth’s construction if voluntariness – if voluntary retention of foreign citizenship could be said to arise from some kind of constructive knowledge, that is, a person would need to be taken to know that he or she was a foreign citizen by reasoning of knowing a set of facts about having formerly being one, thus facts that would put him or her, at least, on inquiry.

If that species of knowledge is relevant to the question of voluntariness, then we would submit that all of the senators would be disqualified.  We set out the reasons why in paragraphs 79 to 88 of the written submissions and I do not propose to take your Honours through those.  If the Court pleases, those are our submissions.

KIEFEL CJ:   Thank you, Mr Kennett.  Mr Newlinds.

MR NEWLINDS:   May it please the Court.  I can assure your Honours I will come to Sykes v Cleary but I thought I would not start with it.  May I first sweep away a number of false premises and assumptions that we say are built into many of the arguments that have been floating around for the last couple of days insofar as those arguments are said to attach to Senator Roberts. 

I will identify what they are first and then seek to demonstrate why they are either wrong or why they have nothing to do with Senator Roberts’ position.  The first is the notion that because Senator Roberts was born in India he is therefore not a natural‑born Australian and that that has something to do with the outcome of this reference.  It does not at a number of levels.  The second is that Senator Roberts was ever naturalised as an Australian.  He was not. 

The third is that something happened in 1974 vis‑à‑vis Senator Roberts and Australia that gave Senator Roberts some extra rights or imposed on him some extra duties that he did not have before 1974, from 1962, when he first arrived in this country.  The next one is that Senator Roberts was not an Australian before 1974.  He was.  His classification as a matter of law was that he was an Australian national.  The next one is that Great Britain was a foreign power to Australia in 1974.  It was not. 

The next one is that Senator Roberts, because of some or all of those things, was somehow on notice of something relevant to section 44(i) at all times from 1974 through to 2016. What that something is has never been identified but whatever it is and whatever he was on notice of, it could not have had anything to do with his status for the purpose of section 44(i) and, finally, once again based on these premises, that somehow in doing nothing about his British citizenship, which he did not know about, from 1974 to 2016, that amounts to an overt act which should be seen to be a voluntary acceptance by him of his British citizenship. All of those propositions that are building blocks of the case that is put against us are either wrong or irrelevant.

Firstly, there should be no place in Australian law, let alone Australian constitutional law, in 2016 for some dichotomy to be drawn between so‑called natural‑born Australians and I suppose, what would we call them - immigrant Australians? If such a concept ever had a part to play in Australian law, it should be put to bed unless the Court is commanded by the clearest words in the Constitution to draw such a distinction. It is, if I may say so, a fundamentally un‑Australian notion.

There was a notion in colonial times, well understood amongst the law in the empire, of people called natural‑born British subjects, and that was a status of itself.  If one was a natural‑born British subject, which meant if one was born anywhere in the empire, one had a supranationality, if you like, that allowed you to roam the empire, to choose a domicile within the empire and, once you chose that domicile, you were a British subject but a national of whatever domicile you had chosen.

So, for example, in 1901 people who were wandering around Australia calling themselves Australians, they were of course right even though the Constitution introduced no notion at all of Australian citizen. So they were not Australian citizens because there was no such concept known to the law. They were British subjects who were Australian nationals, and that gave them all of the rights and imposed on them all of the obligations of Australians, and that is why they were right. They were constitutionally and legally right when they walked around and told people, “We’re Australian”. They went overseas and introduced themselves as Australians.

Most of them, of course, were also citizens of Britain because they had been born in colonies when they were colonies of Britain, but those who had come out on ships in the early 20th century, they arrived here as British citizens, they were given the status of Australian by Australian law as British subjects, and the minute they set up a domicile in Australia they became Australian nationals and they were allowed to vote, they were allowed to work as public servants, there was no restriction on their ability to participate in the affairs of the community, and they were liable to conscription and all of the duties that come with being a member of a country.

Senator Roberts from 1962, not because he was born in India but because his father was Welsh, was a British subject and he had that status not by anything from the law of Great Britain, but he had that status out of the law of Australia and as a British subject, even though he was a child, he establishes his domicile in Australia because his parents choose to live there.  He became an Australian national.  He was an Australian. 

With no disrespect to the cross‑examiner and certainly no disrespect to his Honour - it is my fault as much as anything – the cross‑examination of Senator Roberts really misfired because the proposition that he was confronted with over and over again was, “Well, of course you knew in 1974 when you got this certificate of Australian citizenship that before that you weren’t an Australian and you must have been something else”.  He kept saying, “No, no, no, I always thought I was Australian and I thought this certificate really did not change anything”, and he was heavily pressed that he could not possibly have such a state of mind because any fool would know that if on day X in 1974 you get made an Australian that before 1974 you could not have been an Australian, you must have been something else, hence you must have known you were British.

Senator Roberts who said that his understanding of his position came from his father who was a Welsh coalminer, I am going to seek to demonstrate to your Honour was constitutionally and legally right when he said “I thought I was an Australian in 1974, and my Dad came home with this certificate and I did not think it was a big deal”.  It was not a big deal.  He was not naturalised.  He did not become an Australian in 1974.  He received a certificate of Australian citizenship which he was entitled to as of right.  All he had to prove to get that certificate was that he was a British subject as defined under the law of Australia and that he had lived in Australia for five years.

There is no character test, no discretion on the Minister.  He was entitled as of right to get that certificate.  It did not give him one extra right as an Australian and it did not impose on him one extra duty as an Australian.  He was only 19 so he was not able to vote yet, but that certificate was not the thing that allowed him to vote when he turned 21.  It was the fact that he was an Australian already.  He could have been conscripted for the Vietnam War as an Australian.  With or without that certificate it made no difference. 

This is important.  You might have noticed from the evidence that in 1974 all that happened was that young Mr Roberts then, his Dad came home and said “I have got you this certificate”, and that was it.  It then gets put in the family documents.  There is no evidence that he took any oath of allegiance, nor is there any evidence that he took any oath renouncing allegiance to somewhere else, nor is there any evidence that he promised to be faithful to the laws of Australia, all of the things that Mr Kardamitsis, the second or third candidate in Sykes v Cleary Case, did.

That is because he got his citizenship in the way I have described and there was no requirement by Australia for someone who was already an Australian national because of their very Britishness to take any oath of allegiance to Australia.  Such a proposition would have been considered a nonsense to the average person walking around the streets in Australia in 1974, and lo and behold, they would have been right constitutionally.  There was no concept. 

If you were being naturalised – and, of course, “naturalised” as a word tends to suggest that you are someone who was not naturally born and you will be given the status of someone who was naturally born – you did have to take an oath and you did have to renounce any other allegiance.  So in other words, the premise of the legislation by which Senator Roberts got his citizenship was that he had no split allegiance. 

There was no concept of split allegiance between someone who was a British subject at the time becoming an Australian.  They already were committed to the sovereign, to the empire as it had been, to the Commonwealth if you like.  There just was not perceived to be any need for any formalities and you would have been treated with some derision if you had suggested anything to the contrary.

Now, of course, and this is not the only point but it is not insignificant to make the obvious point that if the day after Senator Roberts got that certificate – wrong example. When he turns 21 and he becomes qualified to stand for the Australian Parliament, he turns up and signs his form and gets elected - so he is a very young Member of Parliament - and someone brings a petition before this Court and says, “You’re a citizen of Great Britain and Australia so you are disqualified because of section 44(i).” It would have been summarily tossed out. He had no disability in 1974 and he was right to appreciate that he had no such disability.

When Justice Keane finds at paragraph 116 of the judgment that Senator Roberts at all times thought he was an Australian but understood that there was a real and substantial prospect, whatever the words are, that he might be British, so much may be accepted, but the point that is not dealt with in the judgment and was not dealt with in the cross-examination was whether he appreciated that that would not matter at all whenever he was considering his allegiance, if you like, to Australia.

Now, if Senator Roberts was a very odd person and walked around as a 19 and 20‑year‑old between football matches and university wondering about his citizenship, an unlikely scenario, and yet built into the Attorney’s case is that each and every day from 1974 by doing nothing he was adopting some foreign citizenship, he would have consulted his father, who, instinctively it seems, knew the constitutional arrangements and would have said, “Well, you are an Australian.  You’re also a British citizen.  You’re also a British subject by Australian law and that’s all great because we’ve all got the same sovereign, we’re all, for the purpose of allegiance, the same and none of us are foreign powers”.

The other person who this constitutional history very much assists is Mr Joyce Senior because he was a New Zealander, so he was a British subject under Australian law when he came to Australia.  So, when he says in his affidavit, “I came from New Zealand and I set up home in Australia and then I thought I was Australian” he was right.  He might still have been a New Zealander citizen but just by coming here, he became an Australian national. 

That is why the Joyce family was imbued with the same understanding of their constitutional relationship with the other country as the Roberts family was.  It might have been simpler times but these non‑lawyers understood the constitutional arrangements between the former empire countries – they are the section 7 countries when we come to the Act – but they are mostly the former empire.

So this all starts in 1948 when the Second World War is over and the British empire collapses.  Up to that time there had been no concept of citizenship in any of the former colonial countries.  They just operated upon the basis that they were British subjects and Australian and New Zealand nationals and the like.  They travelled on British passports issued by their particular country.

In 1948, everything splintered apart and the evolution of the relationship starts to happen and there are Acts – basically in the same form – set up throughout what was now the Commonwealth to give effect to what I have just described.  So, in other words, to keep alive in the domestic law - focusing on Australia - the domestic law of Australia then made people a British subject. 

GAGELER J:   When did the United Kingdom become a foreign power?

MR NEWLINDS:   According to Sue v Hill, we found out in 1999 and the High Court pronounced it that it happened in 1986.  But, as, I think it is Justice Callinan points out in one of those cases, in that case or in one of the alien cases which I am going to come to, no bell rang in the community.  There was no clarion call.  No one hung out flags and said as of today Australia is fully independent and Britain is a foreign power.

KEANE J:   So, is your submission that Sue v Hill is wrong?   

MR NEWLINDS:   No.

KEANE J:   Or is it that it had not been decided in 1974?

MR NEWLINDS:   Yes.  If it had been – if Sue v Hill came before the Court in 1974, according to Sue v Hill itself, the answer would be Britain is not a foreign power.  But Sue v Hill says it is very difficult – in fact, the Justices talk in terms of being a mystical process and whilst they could confidently say in 1999 that Britain was a foreign power, the difficult topic was when did this happen?  They fixed on 1986. 

Then the alien cases came along and the dispute became – in a series of cases – here are some people who have come to Australia and become Australian nationals but never got naturalised, never obtained citizenship.  They have lived here for decades being subsumed into the community and then they have done something absolutely terrible and the government wants to toss them out.  The government uses the alien power to do that, says “You’re an alien; we can throw you out as a matter of discretion”. 

They came before the Court and there are a series of them saying, “Well, I’m not an alien.  Even though I’m not a citizen of Australia, I came here, I got my Australianness from the fact I was here and my British subjectness.  You can’t treat me as an alien.”  The two cases are Re Patterson; Ex parte Taylor and Shaw, and I will come to them.  The debate in the High Court, when they were dealing with those cases was well, there is a point in time when you did become an alien.  When was that point in time? 

The point, your Honour, is simply this.  It is to rebut what is put against us which is, firstly, that at 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 in which he was operating, that is a nonsense.  No one in their right mind would have perceived there to be any issue in terms of split allegiance.

BELL J:   Putting to one side what people in their right mind may or may not have thought, we are to determine this on the facts that have been found.  It is just unclear to me where this argument is taking you.

MR NEWLINDS:   Well, what is said against me is the facts that are found, that is, that he appreciated there was a real and substantial prospect he might be British, one of the submissions that is put against me is that that means that in doing nothing about it for all those decades leading up to 2016 he somehow was voluntarily accepting his Britishness and we reject that.

BELL J:   Are we not concerned with the significance of his awareness of the real and substantial prospect that prior to May 1974 he had been and remained a citizen of the United Kingdom on the day he signed his nomination?

MR NEWLINDS:   Yes, I accept that.  But what I am doing at the moment is trying to get your Honours to reject – the first submission that is put against me is that his state of mind in all the decades leading up to that has something to do with a voluntary assumption by him or acceptance of his British citizenship.  I will come to the position at 2016.  I fully accept that there is a different level of argument when we get to that point.

EDELMAN J:   The essence of that submission is that Sue v Hill decided that prior to 1986 Australia was not an independent country.

MR NEWLINDS:   It is more than that.  That is one limb of it, but the other limb of it is to be Senator Roberts and all the people who became Australians, whether citizens or not, it was their very Britishness that allowed them as of right to become Australians and upon becoming an Australian citizen, which we say was just a tag – it did not increase or decrease the status he had, in any event – he was not required to take any oath or renounce.

What it leads to is that you cannot just jump in ahead. Mr Kennett contends for a red‑line construction of section 44(i) and others have pleas for certainty in relation to the proper construction of section 44(i). One can well understand the attractiveness of those sorts of submissions. The problem is that when you are dealing with people who became Australians because they were British subjects in the period following the Second World War while this evolutionary process was taking place, the red‑line analogy becomes totally unhelpful because if there was a red line it moved, or if the red line stayed still the dial moved behind it because without Senator Roberts doing anything at all, he went from being a qualified person under the Constitution to stand for Parliament to a disqualified person by a mystical process that only can be determined once the High Court determines it has happened. Still to this day people are very hesitant to commit themselves to precisely when it happened.

Test it this way:  we now know from Sue v Hill in 1986 when the Australia Act was passed that seems to be the point.  But no one was certain of that in 1987.  If Senator Roberts had stood for Parliament and been challenged in 1987, that would have brought the Sue v Hill case forward, presumably.  Who knows what the result would have been if that same case was heard two decades earlier.

BELL J:   But we are dealing with the signing of a nomination in 2016 and Sue v Hill is part of the landscape.

MR NEWLINDS:   Of course.  I accept that, but I am dealing with a submission that is firmly put against – you have not heard much about the case against me.  It is in writing and part of it is that for that whole period Mr Roberts was on notice of something and that in not doing something about it, he has acquiesced voluntarily.  I understand that the Attorney‑General says voluntariness is the touchstone.  That is their evidence of his voluntary assumption.  I will come to 2016.

Can I then move on to develop those submissions, if I can, and to make good the propositions I have just made.  But what I am going to come to, so your Honours do not get frustrated with me, is this:  come 2016 we have the finding that he thought he was an Australian but he knew there was a real and substantial prospect.  This is the one last thing that is floating around that your Honours are going to have to deal with. 

Before today, there is no level of notice known to the law of knowledge that is described as “knew there was a real and substantial prospect” of something.  It is not one of the Baden categories known to equity.  It is not wilful blindness.  If anyone suggests it is, I have some submissions as to how it cannot be.  It is a test, as far as we can tell, that is known to the law and it comes out of injunction‑type cases or the test for getting a stay in an intermediate appellate court pending special leave applications.  It is a test more apt to assessing something that might happen in the future.  But that is the test we have. 

The Attorney, without any analysis, simply asserts that that level of knowledge is sufficient for actual knowledge. We take issue with that. We took issue with that in writing and we were not graced with any response as to how it is that they teased that out. But it would be a very strange state of affairs if the proper construction of section 44(i) of the Constitution has grafted onto it a brand new level of notice or knowledge not known to any other area of the law. So we embrace Mr Walker’s submission that other than wilful blindness, one either knows or does not know and, of course, on proper analysis of wilful blindness, wilful blindness is in fact actual knowledge.

So our position, to answer Justice Bell’s inquiries, is come 2016, Mr Roberts is in exactly the same boat as people like Mr Joyce and Senator Nash.  He does not know he is a citizen of a foreign power, but he has the wit to appreciate that he might be.  Now, if the reasonable steps test in Sykes v Cleary means what I want it to mean, which is the same as the Attorney‑General and Mr Walker, then one has to assess when the time for taking reasonable steps, which is a reasonable steps to renounce test, commences because as a matter of logic someone who does not know they are a citizen of a foreign power cannot take reasonable steps to renounce.

That submission is made by other people before the Court.  They did not know, therefore they did nothing.  They say that is reasonable steps.  I do not want to intrude on that debate.  What Mr Roberts did from the time he signed that application was take a two‑step approach.  The first step he did was try and work out what the true position was, like any sensible and honest person would do.  That does not mean that when he signed the declaration form he knew he was a citizen and the finding is not that he knew that he was a citizen of Great Britain.

What he does in the first instance is take some steps to try and work out what is the true answer to that question, and he is criticised heavily about those steps.  They are said not to be reasonable, the emails went to the wrong address and so on.  But that misunderstands the reasonable steps inquiry.  It had not started yet. 

It only starts at a point in time when he has actual knowledge and for reasons I will explain that happens well after he has been elected and within about four to five weeks of having actual knowledge he has, effectively, renounced in exactly the same way as Mr Joyce and Senator Nash.  But that is where I am going, but I need to deal with some of these furphies, if I may say so.  Can I come back to why it does not matter that Senator Roberts was born in India and, therefore, is not, to use the term, “natural‑born Australian”?

Firstly, that is not his alleged section 44(i) problem, so it is a complete distraction. If Senator Roberts had been born in downtown Parkes Avenue, Canberra to his Welsh father, he would have exactly the same section 44(i) problem. We are here because his father is Welsh. We are not here because he was born in India. No one suggests he is an Indian citizen. No one suggests he was an Indian citizen when he was elected.

So it is actually entirely irrelevant, and that demonstrates why this dichotomy between natural‑born and non‑natural‑born is so inappropriate because if Senator Roberts was put on inquiry of anything or whatever the test is or if there is some presumption against him, whether it be evidentiary or legal, by the fact he was born in India, well, he has discharged it; not his problem.

BELL J:   Is your submission that it is inappropriate to distinguish between natural‑born Australians and naturalised Australians, or is it that Senator Roberts properly understood is a natural‑born Australian?

MR NEWLINDS:   No, he is a natural‑born Indian, whatever that means.

BELL J:   But the point I am raising with you is a deal of your submission, as I have understood it thus far, is to say there is in truth no distinction between Senator Roberts and persons who answer the description of being natural‑born Australians.  That might be thought to be in contrast with the position of Mr Kardamitsis.

MR NEWLINDS:   Yes.

BELL J: So, in fact you embrace the idea that there is a relevant distinction for section 44(i) between a natural‑born Australian and a naturalised Australian?

MR NEWLINDS:   No, I embrace the distinction that on the facts Mr Kardamitsis’ case is different than Senator Roberts, but it makes no difference to the legal resolution of the case. I say it is a dangerous distraction, it is an inappropriate distraction and I will show you from the old cases where it comes from and that what has happened here is the Attorney‑General is grafting a concept of natural‑born British subject onto section 44(i) in a way which does not work and is not necessary.

GAGELER J:  He is taking the language from section 34 of the Constitution, which, until the Parliament otherwise provides a new Parliament, provided otherwise quite a long time ago, but your real point is, even if you look at the language of section 34, a subject of the Queen who is natural born in 1901 was anybody born in any of the crimson bits of the map that hung on the school wall.

MR NEWLINDS:   Exactly.  A natural‑born subject of the Queen, as time went on, came to be described as “British subject”.

BELL J:   The matter I am raising with you is to simply understand whether you contend that it is wrong to construe section 44(i) by a distinction between a person answering the category of being a natural‑born Australian, accepting that it might have extended prior to 1986 to a natural‑born subject of the Queen and a person naturalised as an Australian as the second and third respondents in Sykes’ work. Now either you are embracing that or you are not.

MR NEWLINDS:   I say it is a distinction.  It is probably a distinction that should have nothing to do with the proper resolution of this case.  I know it helps me to say that yes, that is a way to differentiate myself from the Kardamitsis and the Swiss gentleman’s case, but my submission is it should have no part to play.

There are only Australian citizens now and to categorise them ‑ and I even say that it should have no part to play as some sort of evidentiary presumption – that is, if a person knows they are born overseas they are on notice, “Maybe I am a citizen of overseas”.  Mr Roberts’ case is a perfect example.  He did check out, “Am I a citizen of India,” and he was not.  So it does not help resolve this question because we are here because his father was Welsh, wherever he was born.

The starting point I think, your Honour, is to look at some of the cases we have drawn attention to.  I would like, if I could, to start by going back to colonial times and to have a look at a case called Ex parte Lau You Fat, which is a decision of the Full Court of the Supreme Court of New South Wales in 1888, a decision of Chief Justice Darley, Justice Windeyer and Justice Innes.  The facts were these.  One can infer that Mr Fat came to Australia in the gold rush and he lived in the colony of Victoria for 30 years and by the time of this case he was a market gardener in Victoria.

He had been naturalised as a British subject by the Governor of Victoria pursuant to the laws of Victoria.  New South Wales had an Act that bore the rather unfortunate title the Inflow of Chinese Restriction Act 1881 that taxed aliens on arrival into New South Wales – they actually taxed Chinese people.  So, Mr Fat arrives by boat from Melbourne, the Customs man at Sydney Harbour arrests him because he will not pay his poll tax and he brings a writ of habeas corpus and says, I am not liable to pay this court this tax because I am a British subject.  The court determined that by saying you are not a British subject.

The first two judges, the Chief Justice and Justice Windeyer, deciding the matter on the basis that regardless of what Victoria, under its laws had done, that there was a distinction to be drawn between natural‑born British subjects and British subjects who had been naturalised and because the claimant was not a natural‑born British subject, he was an alien.  The third judge, Justice Innes, simply said, for the purpose of status as an alien different parts of the empire are entitled to make their own laws which would not be recognised by other parts of the empire.  In other words, the fact that Victoria was prepared to naturalise him, did not mean New South Wales should identify it. 

At page 273 of the report in the judgment of the Chief Justice, about point 8 of the page – about point 6 of the page – the case brought by the applicant.  He was relying on section 10 of the Act that said:

“Notwithstanding anything in this Act contained, any Chinese arriving in the colony who produces evidence to the Collector of Customs or other duly authorised officer that he is a British subject shall be wholly exempt from the operations of this Act –

So, the claimant said, here is my certificate from the Governor of Victoria and the Chief Justice said:

I am of the opinion, notwithstanding the letters of naturalisation, that in this colony the applicant is not a British subject, but an alien, and that therefore he does not in any way come within the provisions of this section.

Over the page, 274:

Whatever the intention of the Legislature may have been in passing this Act –

that is the New South Wales Act:

it is clear to me that the words “British subject” must mean “British‑born subject,” and a person who comes to these shores claiming the right to land as a British subject must shew, not that he had the privileges of a British subject in some other part of Her Majesty’s dominions, but that he is a British subject in this colony; and in order to prove that, he must produce this certificate either from a British Consul or from the Governor of a British colony –

So this is where this idea of natural born and non‑natural born comes from.  It comes from pre‑Federation days and is to do with this “supranational” or super colonial status that one could have as a British subject.  The next case, which we simply draw attention to ‑ ‑ ‑

KEANE J:   This case is actually rejecting the proposition that you can be a supranational.

MR NEWLINDS:   You can be a supranational if you are natural born, as such, but if another part of the empire naturalises you, you do not get the same status.  That is what it is authority for, and, without mincing words, it is obviously racially based and this is the precursor to the White Australia‑type policies and we have come a long way but that is where this concept of natural born and non‑natural born emerges from.

BELL J:   The concept goes back to Calvin’s Case and before. 

MR NEWLINDS:   Sure.

BELL J:   What are we getting out of this?

MR NEWLINDS:   That to transplant the idea of natural‑born British subject to a concept of natural‑born Australian is not warranted.  All I am doing is answering cases that are put against me.

NETTLE J:   This is all to say that you should be treated in the same way as perhaps Mr Joyce should be treated, rather than like the respondents in Sykes v Cleary.

MR NEWLINDS:   What I am trying to do is get myself in the same boat as Mr Joyce and Senator Nash, and then I want to demonstrate that I am actually in a better boat.

NETTLE J:   Does that not entail you saying that Sykes v Cleary was wrongly decided?

MR NEWLINDS:   No, because they were Greek and Swiss and ‑ ‑ ‑

NETTLE J:   You are British, that makes the difference.

MR NEWLINDS:   It does because when you look at – this feeds into the subjective circumstances of the person, the relationship that person has with the foreign power, and at least those two categories that the Court in Sykes v Cleary identified as relevant to the assessment of the taking of reasonable steps.

NETTLE J:   All this is directed to say you did not have the requisite degree of knowledge to trigger the responses that would be taking an affirmative act, is it?

MR NEWLINDS:   Correct, and I also say that as far as Mr Roberts’ state of mind was concerned, his understanding of his connection with Great Britain was a good one, it was a positive one.  It is not I have a connection with a foreign power, not that I have some sort of split allegiance.  The way he was treated by Australia inculcated in him an understanding that it was not a problem and that when it comes to the qualitative discretionary, if you like, judgment as to whether the steps he took were reasonable or not, these things are relevant.

Now, it only works, if I may say so, if the Attorney’s and Mr Walker’s construction of Sykes v Cleary is right.  If knowledge has no part to play and all we are talking about is the conflict of law type exception of some overreaching foreign citizenship law, well, then I lose, but I would ‑ ‑ ‑

NETTLE J:   Or perhaps, to pick up something the Chief Justice said a little earlier, unless an affirmative act is required.

MR NEWLINDS:   Yes, and that is part of the Attorney’s case against me.  He says I have taken an affirmative act.  It is an affirmative act by doing nothing.

NETTLE J:   That will not work for you because – well, I suppose you would say you are different to Sykes v Cleary because you are British.

MR NEWLINDS:   Absolutely.  Of course, I did not take an affirmative act because it just did not matter.  I did not have to renounce anything; I did not have to take a new oath.  I did nothing and I was perfectly, reasonably entitled to do nothing.  And it would be wrong to construe that doing of nothing as an overt act.  Of course, often doing nothing can amount to a positive acceptance of a state of affairs, but it would be wrong to take that approach in relation to someone in the position of Mr Roberts.  And it only applies to people who came through this post‑war period.

EDELMAN J:   Would your submission be different if Australia were independent in 1974, on your submission?

MR NEWLINDS:   It would not be as strong a submission, yes.  But, if I may say so, the facts would be different.  If Australia was wholly independent of Great Britain and, presumably, on taking citizenship of Australia one would be required to take the oath of allegiance, as one is now if one transfers from being a British citizen to an Australian citizen.  And one would be required under Australian law to take an oath renouncing that other citizenship.  Now, that may not be effective under the foreign law.  So now times have changed and the position of a person who has come from Great – or is a British citizen for whatever reason, they cannot make use of these arguments at all because their position is different.  They would have transferred citizenship to become a citizen in exactly the same way as someone who has come from a non‑former empire, to use a phrase, country.

GAGELER J:   Mr Newlinds, we are at 1888.  We have got a long way to go to get to 1974.

MR NEWLINDS:   We are getting there, your Honour.  Can I just move forward to 1906 and I will go straight to 1974 from there.  This is a decision called the Attorney‑General (Cth) v Ah Sheung (1904) 4 CLR 951. Now, it is significant because it is the decision of Chief Justice Griffith who of course was on all these meetings on the Lucinda and the like and was involved in the drafting of section 44(i). It gives a clear insight as to what his position would have been if anyone at the time had suggested to him, perhaps when they were on the Lucinda, “Well, wait a minute; when we are drafting section 44(i) this is going to cause a problem because all these British people” – which of course is all of us –“are going to have to renounce their British citizenship”. And that of course is the very basis that they get their Australian nationality, in any event.

A barrister called Mr Bryant, who then does not seem to go on to much else, has apparently made the submission that there was a distinction to be drawn between Australian nationality and British nationality and the Chief Justice disposes of that in the second paragraph:

We are not disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality, so that, while the term “immigration” as used in sec. 51 of the Constitution admittedly includes the power of exclusion of British subjects in general, it would not extend to persons of Australian nationality, whatever that may mean.

So, in 1904 in a time they drafted the Constitution they had not even come to grips with the concept of Australian nationality. That comes into the law as time goes on. But as at the time these gentlemen were drafting the Constitution, Australians were British and British were Australians if they chose to live in Australia. They were two sides of the one coin.

BELL J:   I think that is well‑accepted, Mr Newlinds.

MR NEWLINDS:   May I move forward, your Honours, to Re Paterson; Ex parte Taylor? I should actually pick up the Citizenship Act as we go through. Now, we have sent up, hopefully helpfully, because this comes from the early 1970s when the Government Printer seems to have been having a lot of trouble catching up with reprints – we have done the very best we can to put together a version of the Citizenship Act as it existed on the day Senator Roberts got his certificate. The library also has the Act with the various schedules as they existed at the time which show the amendments.

Where it gets very confusing is that amendments come into the schedules, for example, in 1973, but do not become operative until 1975, and the like.  May I respectfully suggest that we work off the homemade reprint and firstly in the definitions section in section 5:

“certificate of Australian citizenship” means a certificate of Australian citizenship granted under this Act and includes a certificate of naturalization or a certificate of registration granted under the Nationality and Citizenship Act –

If you go then straight to section 7, which is Part II of the Act, the heading is “The Status of British Subject”.  We think this is an important point, that people were not British subjects because of the law of Great Britain.  They were British subjects because of the law of Australia:

A person who, under this Act, is an Australian citizen –

so that is not Senator Roberts, prior to him becoming a citizen:

or, by a law for the time being in force in a country to which this section applies, is a citizen of that country has, by virtue of his Australian citizenship or his citizenship of that country, as the case may be, the status of a British subject.

We go over the page; there is a list of countries and the third from the bottom is described as “United Kingdom and Colonies”.  Your Honours might have picked up from Justice Keane’s judgment that there was a notation on the form that the Roberts family all filled in, describing their then citizenship and the words used were “UK and Cols”.  Then if you go to section 10 – this is Part III of the Act – this is the first way that a person can become an Australian citizen as at 1974, by birth or descent, so we understand that.  You are either born here or one of your parents is Australian.

If you then go to section 11A, that is Division 1A, still in Part III, this is how Senator Roberts got his certificate and became an Australian citizen.  So, 11B:

This Division applies to a person—

(a)       who is not an Australian citizen;

(b)who is a citizen of a country to which section seven of this Act applies –

So that is Senator Roberts:

(c)       who was ordinarily resident in Australia or New Guinea –

and has been for five years, and that is Senator Roberts.  Then 11C(1):

Where a person to whom this Division applies gives notice, as prescribed, to an officer authorized by the Secretary to receive notices under this section stating that the person desires to become an Australian, citizen, the person is an Australian citizen by notification as from the date upon which the notice is received –

to be contrasted with sections 13 and 14 is Division 2.  It now has the heading “Grant of Australian Citizenship”.  Until six months before this version of the Act, it was called “Naturalisation of Australian”.  So this is naturalisation, and I will not read it to your Honours, but you make an application to the Minister, you have to tick a whole lot of mandatory boxes.  If you tick those boxes you then enter into a discretionary decision by the Minister, who can make you a citizen or not make you a citizen.  This is what Mr Kardamitsis no doubt did.  Section 15 of the Act, which is on page 13 of this document:

a person to whom a certificate of Australian citizenship has been granted under –

this division, so that is only the division that relates to the grant of Australian citizenship as a matter of discretion – shall be required to take the oath, which is in the schedule.  Then on page 29, at the very back, we get to the schedule and there is the oath of allegiance, and it is obviously the same one Mr Kardamitsis took:

I, A.B., renouncing all other allegiance –

and swears:

that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia‑

not considered necessary:

Her heirs and successors according to law, and that I will faithfully observe the laws –

not considered necessary.  This is all explained historically or as constitutional facts, if you like, in the various judgments in Re Patterson; Ex parte Taylor.  They are long; I will try and give your Honours the highlights.  There was a series of alien cases – your Honour called them alien cases which are described and Mr Patterson was one of them.  He was saying, “Even though” – it is Mr Taylor; Ms Patterson was the Minister.

GAGELER J:   What are you trying to get out of them?

MR NEWLINDS:   I am trying to show your Honour some constitutional facts, the history of the development of the relationship between Great Britain and Australia constitutionally, and the concept of “Australian national” being an accepted and understood term in Australian law, and the development of the Australian citizenship laws as you work through the 1970s, 80s and 90s.

KIEFEL CJ:   To what end?

MR NEWLINDS:   To show that at no time during those decades could it be considered an appropriate finding of fact to construe Mr Roberts not doing anything overtly to reject his British citizenship if the level of knowledge he had about it is sufficient ‑ ‑ ‑

KIEFEL CJ:   Does this assume that he has knowledge of all of the things that you are referring to?

MR NEWLINDS:   No, it assumes he does not.  What this case tells us ‑ ‑ ‑

KIEFEL CJ:   But what does all of this history tell us- that out in the wider public or at a level of governance some view is held or some understanding is being reached about citizenship?

MR NEWLINDS:   Yes.

KIEFEL CJ:   The community is imbued with this?

MR NEWLINDS:   Yes, and the judgments speak exactly in those terms.

KIEFEL CJ:   Therefore, we are heading towards some test of reasonableness about what he could be expected to do.  Is that where we are going?

MR NEWLINDS:   Yes, because at the end of the argument we are going to get to a reasonable steps test on Sykes v Cleary in my case.

KIEFEL CJ:   But this is whether he could reasonably know.

MR NEWLINDS:   Well, if that is part of the case that is put against me.

KIEFEL CJ:   But from the point of view of whom, the Australian citizen?

MR NEWLINDS:   Yes.  This case makes findings as to what the body politic, what the citizenry of Australians understood ‑ ‑ ‑

KIEFEL CJ: How does this help us construe section 44(i)?

MR NEWLINDS:   It does not help you construe section 44(i). It helps you apply the proper construction of section 44(i) to Senator Roberts’ particular case. That is what it does. He was entitled to put out of his mind the fact that he was also a British citizen.

KIEFEL CJ: So the proper construction of section 44(i) that you wish to advance is that advanced by the Attorney.

MR NEWLINDS:   With the qualification that Mr Walker adds to it, which is that there is no level of notice.  There is either knowledge ‑ ‑ ‑

KIEFEL CJ:   No constructive knowledge, just actual knowledge.

MR NEWLINDS:   Correct.

KIEFEL CJ:   So this is all headed towards saying that Senator Roberts could not reasonably be required to have taken any step because he could not have been expected to have thought in a particular way.  We have findings about what he thought.

MR NEWLINDS:   We do, and the finding is ‑ ‑ ‑

KIEFEL CJ:   Is this not a gloss on those findings?

MR NEWLINDS:   No, not at all.  This is – what we do not have findings about is whether what he did was reasonable or not.  We have findings as to what he did, we have findings as to what his state of mind was, and I am not seeking to cavil with any of that.  This Court, the Full Bench, is ‑ ‑ ‑

KIEFEL CJ:   You are saying you are not cavilling with the findings relating to his state of mind.

MR NEWLINDS:   No.

KIEFEL CJ:   So this is directed to what expectations could be held about what his state of mind could be - we are about four steps backwards.

MR NEWLINDS:   Firstly, that it was not actual knowledge, and secondly that what he did in all the circumstances, to pick up the phrases in the judgments from Sykes v Cleary ‑ ‑ ‑

KIEFEL CJ:   Or the fact that he did not do anything because we are a long way from the date of nomination still, are we not - you are still talking about the period leading up to nomination?

BELL J:   If we are looking at what the body politic might be taken to have understood about citizenship, was that understanding affected at all by the decision of this Court in 1999 in Sue v Hill, in which case what is the significance of pre‑1999?

MR NEWLINDS:   The judges in Taylor and some of the judges in Shaw both say these matters were not understood until even after Sue v Hill came out by the general body politic.  But anyway, we have a - Senator Roberts did not know about Sue v Hill, it was not suggested to him that he did, of course, but his state of mind, as found by Justice Keane, was embedded and set in 1974 and it does not change - that is the finding.  His state of mind remains the same all the way through to 2016.

KIEFEL CJ:   I just do not understand the relevance of this historical state of mind.  The relevant date for the state of mind is the date of nomination.

MR NEWLINDS:   I embrace that, and if that is accepted, then I have dealt with one of ‑ ‑ ‑

KIEFEL CJ:   I cannot speak for the others.

MR NEWLINDS:   ‑ ‑ ‑ the primary propositions that is put against me.  I am trying to destroy that proposition.

KIEFEL CJ:   Please recap what the proposition is.

MR NEWLINDS:   The Attorney‑General says, firstly, that knowing there is a real and substantial prospect is actual knowledge – I think.  He has not actually spelt that out but I will deal with that in a moment.  But then he says ‑ ‑ ‑

KIEFEL CJ:   Perhaps you could take us to that part of the written submissions or the transcript where this is said.  Sorry, can you summarise what you are saying first.

MR NEWLINDS: This is my understanding and if I have – then it is said, because the Attorney‑General fixes on voluntariness as the touchstone for construing and applying section 44(i), and he says against Senator Roberts that his voluntary act or acts is the continued period all the way from 1974 to 2016 in doing nothing about his British citizenship. That is his voluntary act because the only overt acts that there otherwise are are the emails he writes which make it 100 per cent clear that he does not want to be a British citizen.

BELL J:   It is difficult to see how the voluntary act, on that analysis, is assisted by it being a very long state of voluntary act, as distinct from the voluntary act at least from the time Sue v Hill is decided.

MR NEWLINDS:   I understand that but then at that point I rely on the finding which is Senator Roberts’ state of mind does not change and it is not unreasonable for that to be so.  Paragraph 87 of the Attorney’s submissions:

Mr Roberts knew that he did not become an Australian citizen until 1974; he also knew that there was at least a real and substantial prospect that he had been, and remained, a British citizen.  Indeed, it appears that he knew that he had been a British citizen prior to 1974.  He had attempted to make inquiries . . . For numerous reasons, those steps were ineffective.  There were additional reasonable steps he could have taken –

and so on.

KIEFEL CJ:   These are all footnoted to the findings made by Justice Keane.

MR NEWLINDS:   Which I am not disputing, but they have to be put in context.  Justice Keane has not made any finding as to whether what he did or did not do was reasonable or unreasonable.  I am trying to persuade your Honours to look at what Senator Roberts did through the prism of his state of mind aided by this historical analysis which shows that contrary to the way Senator Roberts was cross‑examined his understanding at the time as to the constitutional arrangements and his status as an Australian was correct, so that your Honour can judge his conduct in a proper context.

KIEFEL CJ:   Whenever counsel say that they want to put findings of fact made in context, there is usually a concern that we are being asked to add a gloss to those findings or that we are being asked to view them in a different light.

MR NEWLINDS:   You are.  You are being asked to put a gloss on it because Justice Keane – and his Honour will no doubt interrupt me if I get this wrong – it was a very difficult fact‑finding exercise for everyone because it was a fact‑finding exercise ‑ ‑ ‑

KIEFEL CJ:   It has been completed, however.

MR NEWLINDS:   I know.

KIEFEL CJ:   That was the purpose of it.

MR NEWLINDS:   But it is ‑ ‑ ‑

KIEFEL CJ:   Mr Newlinds, can you shorten this aspect of your argument and bring us up to date fairly quickly?

MR NEWLINDS:   Yes.

KIEFEL CJ:   Perhaps you can do it by reference – by giving us the page references to the long judgments, as you have described them.

MR NEWLINDS:   I have about 10 references.

KIEFEL CJ:   We can read them at our leisure.

MR NEWLINDS:   Yes.  But, before I do that, Justice Keane was only asked to find facts.  Justice Keane was not asked to apply any legal test to those facts.  Everyone who was in the fact‑finding exercise understood that.  So, all he can do is find primary facts.  It is for this Court to put a gloss on those facts.  So, unlike an appeal from a trial judge who has found primary facts and then made a qualitative assessment based against the legal test that what a person did was reasonable or unreasonable, Justice Keane has not done that. 

So, this Court then has to work out what is the proper legal test to apply to those facts and on Mr Gleeson’s and Mr Kennett’s argument, they are all irrelevant. But, if they are relevant, this Court then has to make a judgment and it is a mixed‑up judgment of fact and law. Applying a legal test to the facts as found, does Mr Roberts get caught by section 44(i) or not?

That has not been – this is a first‑instance hearing, not an appeal from Justice Keane and Justice Keane’s facts are simply the facts to be factored in by this Court at first instance to come to the ultimate conclusion.  That is my submission.

KIEFEL CJ:   Perhaps we could deal with it in this way that the cases that you wish to take us to to explain the view of the Australian citizen in the intervening period you could do by page references and just give us an overview of what you seek to draw out of those cases so that we can move this process along.

MR NEWLINDS:   I will.

KIEFEL CJ:   We are in our third day, Mr Newlinds.

MR NEWLINDS:   I know.

GAGELER J:   Mr Newlinds, just so I understand your position on the facts, you referred us to paragraph 87 of the Attorney‑General’s submissions which contains a sentence:

Indeed, it appears that he knew that he had been a British citizen prior to 1974.

You do not challenge that?

MR NEWLINDS:   No.

GAGELER J:   His Honour’s findings about the knowledge of a real and substantial prospect of remaining a British citizen ‑ ‑ ‑

MR NEWLINDS:   Do not challenge.

GAGELER J:   You do not?

MR NEWLINDS:   No.

GAGELER J:   At what point in time do we take those findings as having been spoken to – from 1974?

MR NEWLINDS:   I actually read them as at least from 1974.

GAGELER J:   All right.

MR NEWLINDS:   In 1962 he is a child, but at some point before 1974 he knows he is a British citizen and then – no, he knows he is Australian.  He knows there is a real and substantial prospect he might also be British.

GAGELER J:   All right.

MR NEWLINDS:   But after 1974, which must be what counts because Sue v Hill tells us this only becomes a problem in 1986 – the position before that really does not matter.  Certainly from 1986 he thinks he is an Australian and only an Australian but he appreciates there is a real and substantial risk that he might be - can I, to make it clear I am listening to the Chief Justice, refer your Honours, firstly, to paragraph – so, we are in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 412, paragraphs 50 and 51 - we are in the judgment of Justice Gaudron:

Mere change in constitutional and legal thinking with respect to the Crown cannot, of itself, effect a change in the relationship between persons in the position of Mr Taylor and the body politic constituting the Australian community.

In Justice McHugh’s judgment, at page 428, paragraph 112, his Honour refers to what Justice Callinan said in Sue v Hill:

there is a danger in applying changing denotations of constitutional terms in accordance with an evolutionary theory of Australian independence.  That is because the “destination marker of the evolution” is not clear.

The great concern is that there is the evolutionary theory – the evolutionary process happens, people’s rights and statuses are changing, but they do not know it.

Page 432, 124, Justice McHugh describes the evolutionary process as “mystical”.  And at page 435, still in Justice McHugh’s judgment, at about line 4 or 5, his Honour makes the point that “No bell rang or could have been rung” to tell British‑born subjects of the Queen resident in an Australian State in 1986 that the constitutional arrangements had moved on.  At paragraph 132, on the same page:

That Act and the cognate legislation of the Commonwealth countries “envisaged two national statuses – citizenship of a Commonwealth country as well as the common status of a British subject or Commonwealth citizen”.

That is the point I have made about this interlocking legislation throughout what had become the Commonwealth of Nations.  At paragraph 143 in the judgment of Justices Gummow and Hayne, they point out that, as recently as 1984, Australian citizens were carrying British passports or passports issued by Australia but they were denoted as British passports.

At paragraph 146, again, talks about the relationship in the colonial times and the way that there was a concept of natural‑born British subjects in the way I have explained.  Moving forward to Justice Kirby’s judgment, at page 480, at paragraph 268:

As will be shown, this supranational concept of British nationality survived well into the latter part of the twentieth century.  It did so both in popular ideology and, more relevantly for present purposes, in the express status recognised by Australian law.

That is my point:  being a British subject was something you got from Australian domestic law:

It was certainly the position obtaining when the prosecutor arrived in Australia in 1966.  It remained the case thereafter until the changes brought about in the 1980s.

I will just give your Honours, paragraph 276, still in Justice Kirby’s judgment:

It would be a distortion of history to rewrite these legal and political realities as they existed in 1900 and as they found reflection in the text of the Australian Constitution.  Within that document, at least at 1900, the repeated references to “subject of the Queen” represented the precise opposite to “alien”.

He then goes on to talk about the statutes post‑1901 dealing with “non‑white” people, and at paragraph 283 talks about section 7 of the Citizenship Act that we have looked at, and 284 is important. The point that his Honour is making is that there was no difference in the way a person was treated as an Australian national or as an Australian citizen. So the upshot is there is a point in time evolutionary, like Britain becoming a foreign power, when people who had not taken up citizenship of Australia became aliens. The debate in this case is about when that happened.

The point is when Senator Roberts got his certificate of Australian citizenship it did not change his status one jot.  His state of mind that was fixed at that time was a reasonable one, and he was entitled to continue that state of mind all the way through to 2016 because, as far as I am aware, there is no other aspect of Australian society that one is precluded from participating in.

GAGELER J:   There is a proposition of law embedded in that submission, I think, that when he became a citizen nothing changed.

MR NEWLINDS:   That is right.  It was a tag.

GAGELER J:   He was not a citizen before; he was a British subject.

MR NEWLINDS:   But he was an Australian national.  He was an Australian national, and he was that because he was a British subject and he lived in Australia.  By dint of that, he had all of the rights ‑ ‑ ‑

GAGELER J:   This expression “Australian national”, where are you getting that from?

MR NEWLINDS:   Justice Kirby in Shaw v MIMA, which I am about to come to- and I am sorry, I have probably flicked over a few; the judgments are replete with this concept.  Can I take your Honours to Justice Kirby.  It is Shaw v NIMA (2003) 218 CLR 28. These were in the good old days, so Patterson was 4:3 as to a certain date when people who were not citizens became aliens.  A short time later, two years later, it went 4:3 the other way, but only on changing the date as to when the event happened – the mystical date. 

But neither of these cases interferes with Sue v Hill on the date that Great Britain becomes a foreign power.  That is dealt with in Sue v Hill.  This is for a different topic.  It is when did people who previously were not aliens become aliens for the purpose of the alien power?

GAGELER J:   What is the relevance of that to section 44(i)? What is the relevance of the alien power?

MR NEWLINDS:   Nothing, but these facts and this description of the history of Australian nationality, Australian citizenship, is very relevant and this is the last reference, if your Honour will forgive me, and perhaps this one ties it together.

EDELMAN J:  All of this, as I understand it, is devoted to the submission that the events in 1974 are effectively irrelevant for the purpose of consideration of section 44(i) in relation to your client.

MR NEWLINDS:   That his perception that he was an Australian and only Australian from the whole time he was in Australia is firstly, perfectly reasonable; secondly, his perception that even though there might be a prospect he is also a British citizen that that just does not matter was perfectly reasonable and in fact constitutionally and legally right.

I accept that when we get to 2016 times have changed and the red line has either moved or the world has moved around Senator Roberts in a way that it is not reasonable to expect him to have understood.  What we are dealing with here is a special category ‑ ‑ ‑

GORDON J: Mr Newlinds, can I just ask two questions about that? In 1974 I think you accept that Mr Roberts desired to acquire Australian citizenship and obtained it by notification under section 11B of the Citizenship Act you took us to, because that is what the section says, Mr Roberts desired to acquire Australian citizenship.  So that was his desire at the time and he acquired it.

The second thing in 1974 is that he took no step then, of course, consistent with the way you put to us, to sever any connection with Britain.  In a sense it was irrelevant to him, but he continued.  Do not those two facts continue up until 2016 but for the introduction of Sue v Hill, and all it does is attribute a different status, that is, a different priority to his connection to the foreign power?

MR NEWLINDS:   Yes, that is the point I make.

GORDON J:   But why do we not deal with that in 2016?

MR NEWLINDS:   Well, because come 2016, if we apply [Sue] v Hill in the way I will contend it should be applied, the Court is entitled to as one of the factors to take into account, to take into account the subjective circumstances relevant to Senator Roberts, his state of mind, his belief in determining an overarching qualitative question as to whether what he did or did not do was reasonable.  That is where I am going.

KIEFEL CJ:   The references are in this case?

MR NEWLINDS:   Page 62, perhaps starting at 61, paragraph 95.  Justice Kirby is talking about how fundamental this question is because you are deciding whether someone is an alien or not, and he says in paragraph 95:

Applied today and for future application, I would accept that such community and such loyalties are marked off by citizenship of birth and descent, and citizenship by naturalisation.  Indeed, so much is accepted by all members of the Court.  Yet there was a time in the past, and not such a distant past, when a very large number of persons came to Australia and were fully accepted as partaking in the Australian community and sharing the loyalties referred to.  They were fully accepted as enjoying Australian nationality.

This was so, notwithstanding that after 1948, when separate Australian citizenship was introduced by legislation, such persons did not procure such citizenship.  In the case of the residual class of subjects of the Queen – most of them from the United Kingdom – such a formality was not at the time required or expected.  Without it, members of their class were treated, and regarded, as full members of the Australian community.  They enjoyed the nationality of this country.  They were liable to jury service.  They were entitled as such to be employed in the public services –

They were not aliens, and so on.

KIEFEL CJ:   Are there any other references in that case?

MR NEWLINDS:   No, your Honour.

KIEFEL CJ:   Where are we then in relation to your outline of argument?

MR NEWLINDS:   We are up to paragraph 5.  The particular circumstances of Senator Roberts assessed within the relevant legal and cultural context compel the conclusion that as of May 1974 Senator Roberts was entitled to put aside any question of his dual citizenship until he decided to nominate for the Senate.  Our point is he just had no reason to think about it or to do anything about it or to adopt it or reject it during those decades.  Until then it just did not matter.  That time is the earliest.  This is the time when he nominates for the Senate, when a reasonable steps inquiry must be considered to have commenced.

Can I now come to Sykes v Cleary – I know your Honour has been looking forward to this bit.  My submission is this, and I am not going to go over old ground.  The statements in the joint judgment and the other judgments that have been looked at ad nauseam only make sense if the Justices were talking about something more than an overreaching or unreasonable foreign citizenship law. 

It is well understood and had been well understood by all of those Justices that the ordinary application of Australian private international law or law of recognition was nothing more and nothing less than – generally it is the law of the foreign power, unless, and the examples for the “unless” are always the unreasonable or overreaching citizenship of the foreign power. 

There is no need, at the end of the process of determining whether you are going to apply the law of citizenship of the foreign country or not to then add to it some reasonable steps test.  That is our submission.  A sensible reading of what their Honours were talking about must lead to a conclusion that they were thinking in terms of something more than that usual conflict of law test.  How much more is a little bit difficult to identify but what we do know is that they were telling us that the subjective circumstances of the particular person was most definitely relevant to this question.

Now, that leads to the question that Mr Kennett had to deal with: does that mean that when a different person comes before the Court in relation to whether for a particular purpose an Australian court is going to recognise the foreign law - whether the result can be different depending on the circumstances of the person who is before the Court? We think that is a very unusual situation. We think that if, for example, section 44(i) the answer should be the same, will the Court accept the law of the foreign power as to citizenship or not, not will the Court accept for the purposes of this applicant.

KIEFEL CJ:   What your submission seems to suggest is that Sykes v Cleary itself opened up a large factual inquiry into the circumstances of the person.

MR NEWLINDS:   I do accept that, yes.

KIEFEL CJ:   That might be a convenient time, Mr Newlinds.

MR NEWLINDS:   Thank you, your Honour.

AT 12.42 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Mr Newlinds, I think unless you have made other arrangements with the other parties, you have about 15 minutes.

MR NEWLINDS:   Thank you, your Honour.  So, picking up where we were, we accept that there is of course a factual inquiry on our construction of the Sykes v Cleary judgment.  I am not trying to shy away from that and it is a factual inquiry that involves inquiring into people’s subjective beliefs, and I am not hiding from that.  But we do ask, rhetorically if you like, what else could phrases such as “the belief that someone had effectively renounced” mean other than their Honours intended there to be a factual inquiry.

We would accept this, though.  We would accept, insofar as subjective belief is concerned, the Court would be very anxious to ensure that such a subjective belief was reasonably held.  It is one of the reasons I have taken you through the historical matters, to explain why it was perfectly reasonable for Mr Roberts to have the subjective belief he had at the time he nominated.  And insofar as he knew from way back in the 1970s that he might be a British citizen it was perfectly reasonable for him to have put that matter out of his mind until such time as he came to nominate.  There is no basis to impute to him some positive acceptance of that British status by him doing nothing.

The next point is this:  without in any way challenging Justice Keane’s finding of fact at paragraph 116, we say that knowledge of a real and substantial prospect of something is not knowledge.  There is no room in this area of the law for anything other than knowledge.  We accept that wilful blindness applies, but wilful blindness, when properly analysed, equals knowledge.  The person who is wilfully blind does not look because they know what the answer will be.

That is the antithesis to how Senator Roberts behaved, of course.  The one thing he was not was wilfully blind.  When the time came for him to try and work out what his position was, he honestly, albeit it misfired, asked an appropriate question of the appropriate person.  The email did not get there.  But that is not what someone who is wilfully blind does.  They deliberately do not ask the question because they do not want to know the answer.

What we have got is some lesser level of notice, if you like, and we adopt Mr Walker’s submission that there is no room in this area of the law for constructive notice.  One either knows or does not know.  That is what I want to say.

KEANE J:   What about a genuinely held but irrational belief?

MR NEWLINDS:   I would accept that that is not a subjective belief, which is why I said that you would have to be satisfied the belief was reasonably held, and it is one of the reasons why I was explaining the circumstances under which Senator Roberts came to form his state of mind when he was a young man.  In light of those circumstances, it was not unreasonable for him to think, “I am Australian and only Australian,” albeit acknowledging, “There is a prospect I might also be British,” because for so much of his life that distinction just did not matter.  But, yes, if there was a finding that a person had an honest but irrational ‑ or even an honest but unreasonably held belief, that would not pass muster.

The next point is this.  If Sykes v Cleary has room for a reasonable steps test, it is important to identify that what Sykes v Cleary is talking about is a reasonable steps to renounce test.  If you are against me and knowledge of a substantial prospect that you might be British is enough for some form of knowledge, then it must follow as a matter of logic that before you get to a reasonable steps to renounce test, there must be some anterior reasonable steps to find out the true position test.

The way we characterise what Senator Roberts was doing when he wrote the emails in May and again in June was trying to resolve the doubts he had as to whether he was a British citizen or not.  We have the finding by Justice Keane at paragraph 52 on page 1285 of court book 3 that it is only on 5 October that he and his wife get the letter from the Home Office which says, it appears you may be British.  If you want to renounce, this is the appropriate form.  This is what you have to do.

Now, at that point I accept that he had knowledge but what I do say is it is from that point that you judge the reasonable steps and by 2 November, the RN15, with the appropriate cheque, properly filled in, had been sent to the Home Office and it was accepted by the British on 5 December.  We would say that, in sending the form properly filled in, he has, at that point, done all things he reasonably can to renounce and we would respectfully suggest that is about the same time it took Senator Nash and Mr Joyce and no one could suggest that that is unreasonable.

Now, if I have to go back to May, it is of course a difficult submission for me to make because the emails went to the wrong addresses, but we do not concede that what he did was unreasonable because what you are doing there is in that anterior step and he is yet to be making his steps to renounce.  This is why really it must be actual knowledge or nothing because, if you only have constructive knowledge, reasonable steps to renounce does not make sense because you do not actually know, so you are never going to take reasonable steps.  So, for a reasonable steps to renounce test to bite, it can only bite on actual knowledge, and that is why we submit that there is no room for constructive knowledge.

So, if I can conclude by recapping, we respectfully submit that Senator Roberts in 1974 did not perceive he had a split allegiance between his Australian obligations and his British obligations because, as a matter of fact, he did not.  He was entitled to put that question then out of his mind and get on with his life as the years went by.  Come 2016, his state of mind is still the same, “I am Australian, but there is a substantial prospect I might be British”.  We would ask for a finding that that state of mind was reasonably held.

He then does the sensible thing.  He tries to make inquiries to work out whether he is British or not.  It is only when he gets the letter from the Home Office that he has the relevant state of mind, and the steps he took from that moment ought to be found to be reasonable, or, to put it another way, as I think Justice Nettle said, if you accept that analysis, he is in exactly the same position as Mr Joyce and Senator Nash.  There is no distinguishing feature.

The distinguishing features that were said to exist were the fact that he was naturally born in India – I have explained why we say that should be put to one side – and the other distinguishing feature is that there is this finding of real and substantial prospect.  In our respectful submission, that is irrelevant.  That be accepted, then you would find that he was not

disqualified when he was chosen and he has not become disqualified during his term of sitting because he moved quickly enough.

The final point - if the Attorney’s submission which we accept is right that if you do not know and you find out during the period you are sitting that you are a citizen of a foreign power and from that point the Constitution accepts that you can still be sitting as a qualified person whilst you are taking the reasonable steps, there is no reason, as a matter of logic, why that same approach should not apply for the purpose of the time chosen. In other words, at the time you put your nomination in, you are still in the process of taking the reasonable steps. That time can continue to run.
I will conclude on that note.  Thank you very much, your Honours.

KIEFEL CJ:   Thank you, Mr Newlinds.  Mr Solicitor‑General, on behalf of the Attorney, any reply?

MR DONAGHUE: Thank you, your Honour. Your Honour, I propose to commence my reply with some submissions about knowledge, but before coming to those we are aware that there are some alternative constructions of section 44(i) that have been raised by a number of members of the Court and I do propose to address what we say about them towards the end of my reply, so what I am about to say is subject to that caveat.

It is, as we understand the central submission put on behalf of Mr Windsor and the amicus, the case that as they would construe section 44(i), a person’s status as a matter of foreign law is determinative subject to some ill‑defined but, on both sets of submissions, very narrow exceptions. On that approach to the section, knowledge of a foreign citizenship is expressly said by both of them to be irrelevant.

Our submission is that if that approach were to be accepted, the consequence is that a person who is an Australian citizen by birth will be disqualified from being chosen as a Member of Parliament and will, if elected, lose his or her seat if the person is a citizen under foreign law, even if they do not know that they are a foreign citizen and if they could not reasonably have known that they were a foreign citizen. 

Constructive knowledge is no part of our case, but it is no part of their case either.  So as the contradictors would have it, a person who could not reasonably have found out about their status under foreign law will nevertheless be disqualified from sitting in the Parliament unless they can bring themselves within one of these narrowly defined exceptions.

EDELMAN J:   It is hard to think of an example of someone who could not reasonably find out that they were a foreign citizen where the foreign law is not either exorbitant or within the exception that is formulated by reference to the constitutional imperative.

MR DONAGHUE:   What exactly is bound up in that second category may be a matter of debate, your Honour, but, in our submission, it is not difficult to find examples because the application of the examples depends very much on an assumed, relatively complete knowledge of the facts.  So if one takes a case – say, Senator Nash’s affidavit was an example – where you do not know anything about your grandparents, if you do not know anything about your grandparents you cannot rule out the possibility that you have foreign citizenship by a non‑exorbitant law.  A first‑generation or second‑generation descent law, on our submission, is unlikely to be characterised by the Court as exorbitant, and it may have the effect of conferring citizenship on you because of that lack of knowledge of status.

EDELMAN J:   How does that situation arise in the real world ‑ you do not have any knowledge of your grandparents but other people do?

MR DONAGHUE:   In this way, your Honour.  Mr Gleeson painted a rather grim picture of political opponents and media having an incentive to seek out information about a person by engaging investigative journalists or matters of that kind, he said for the purpose of seeking to put people within the state of knowledge that would then generate the problem. 

But, in our submission, the problem is far worse on his construction because if that information is sought out and able to be found by the political opponent or the media investigation, on our construction, as long as the person, having been put on knowledge of their foreign citizenship, immediately renounces it they do not lose their seat.  On Mr Windsor’s construction, they are gone.  There is nothing that they can do in response to the information having been sought out and put to them.

KEANE J:   No, I think what is being put to you by Justice Edelman is that there is something slightly unrealistic in the real world about the submission that they could not reasonably have known, given that we are here because the facts are knowable and have been established.

MR DONAGHUE:   Ultimately, with the benefit of hindsight, for these people that is true, your Honour, but ‑ ‑ ‑

KEANE J: But it is not about the benefit of hindsight, is it? It is about whether it is a sound rule, in interpreting the Constitution, to treat section 44(i) as making a peremptory requirement that the person tendering himself or herself for election must qualify and, if that person does not qualify, that is no one else’s fault. It is not even that person’s fault.

MR DONAGHUE:   It is not that person’s fault.

KEANE J:   It is just that they do not qualify.

MR DONAGHUE:   Your Honour, that is what has been put to you as the appropriate way to construe the provision.  In our submission, that has two major defects:  one, that as a matter of fact it is not difficult to identify situations where a person who reasonably seeks to put themselves forward for election is not able to identify their foreign citizenship.  I have given one example of not knowing the grandparents.  If you are the child of a single mother and you do not know who your father is and your father then comes forward at some point and that relationship is established, then that might fix you suddenly with a descent status that would disqualify you from sitting in Parliament.

The case of Senator Xenophon demonstrates that you might know where your parents come from, you might make good‑faith inquiries into whether or not you have the nationality of the countries from which both of your parents come but because you do not understand their colonisation processes and the transitional regime that was put in place in relation to those countries, there is another country that it never even occurred to you you had a connection with, that nevertheless has pursuant to its domestic laws conferred status upon you.

All of those scenarios, in our submission, are far removed from the purpose that all of the Judges in Sykes v Cleary accepted 44(i) to serve.  It is concerned with split allegiance and there is no split allegiance in any of those situations where a person does not have actual knowledge of their connection with a foreign State.

So while it would be possible to have a very hard line approach of the kind that is being urged, that hard line approach goes well beyond any identified constitutional purpose for the operation of 44(i) and has the consequence that a potentially very significant number of Australian citizens are disqualified or at least contingently disqualified from a capacity to sit in the Commonwealth Parliament.

Indeed, in our submission there is, on the contradictor’s case, a somewhat perverse incentive for people who have knowledge about a candidate’s citizenship to withhold that knowledge until after they have been elected because at that point they cannot do anything about it. So it does not encourage a swift resolution of these matters. It rather lends itself to section 44 being used as a political weapon in a way that is quite far removed from the constitutional purpose of the provision.

Further, in our submission the idea that the limit is an exorbitantcy limit by reference to international law notions of that concept in our submission is both quite unclear as to content, does not appear to derive its content from the Constitution itself and did not, in our submission, survive scrutiny from the Bench.

It was, for example, suggested by both the amicus and Mr Windsor that one possible example of an indelible – sorry, of an exorbitant law would be one pursuant to which citizenship could not be renounced.  If that is an exorbitant law, it is an exorbitant law that formed part of British law for several hundred years up to the period just before Federation, so that is a very familiar kind of citizenship law.  But perhaps the better example was the indefinite descent law, which got quite some attention.

Now, the examples that were given were normally by reference to someone at the seventh or eighth generation.  It was not clear, in our submission, whether it was being said that the indefinite descent law is exorbitant as a law in any of its operations, in which case it would be exorbitant for generations one and two and three, not just for people a long way down the chain.  It is difficult – well, it is impossible to assess the exorbitancy of that law divorced from its factual application and to confine it just to the sixth or seventh generations.

Furthermore, in relation to the latter generations, six or seven, your Honour Justice Gageler put to Mr Gleeson the example of what if a person wants the status they get pursuant to this exorbitant law, and ultimately the submission that was put was that that person would – the operation of the law in respect of that person would not be exorbitant, even though it might be exorbitant in respect of the operation of a different person in an identical position, save that that person did not want the rights. 

That, in our submission, ultimately looks a lot like a voluntariness test.  It is a test that turns upon the choices being made by the person in relation to the status that they are given by foreign law, and so the attempt to separate out knowledge or voluntariness from the operation of the section, in our submission, ultimately collapsed.

Moving then to the question of obligations under foreign law, as we understood the amicus and Mr Windsor’s case, they sought to deal with the problem that without knowledge of foreign citizenship one could not have split allegiance by saying, well, maybe you cannot have split loyalty if you do not have knowledge, but you can still be subject to obligations under the law of another country, those obligations being reciprocal upon your status as a foreign citizen.

There are three points we make about that.  First, the submission involves what is, in our submission, a disproportionate focus on the reasons of Justice Brennan in Sykes v Cleary.  Justice Brennan’s reasons cannot properly be treated as the ratio of Sykes on the section 44(i) point and tellingly, in our submission, when your Honour Justice Gageler asked Mr Gleeson that exact question, he said no. Your Honour asked him if Justice Brennan was the ratio. He said no. Rather than try to take your Honours to the other judgments in Sykes to show where one could see the same kind of reasoning that Justice Brennan deployed, instead your Honours were taken to Sue v Hill in an attempt to buttress the authority of Justice Brennan’s reasoning.

The passage in question – I will not go back to - your Honours will recall it was correctly described by Mr Gleeson as a very compressed paragraph.  It contained no reasoning whatsoever in relation to the relevant point.  It contained a footnote that “cf” – introduced by the “cf” reference to several passages over a number of pages in Sykes.  One of the page reference passages was to Justice Brennan’s judgment, but the passage refers to pages 112 to 114. 

Your Honour was questioning Mr Gleeson about paragraphs 109 to 110, which is the section in the judgment where his Honour is talking about obligations reciprocal upon status.  So there is no reason to treat Sue v Hill as having anything to say about the essential part of the reasoning in Justice Brennan’s judgment that our friends seek to attribute to the whole Court.

In our submission – and I certainly will not take your Honours back to Sykes – one does not find in the plurality’s reasons, in Justice Dawson’s reasons or in Justice Deane’s reasons any reference to the kind of concepts that underpin Justice Brennan’s judgments. In all of their Honours’ reasons, the limiting principle in respect of section 44(i) is identified by reference to the purpose of 44(i), not by reference to international law concepts of exorbitance.

The second point we make about obligations is that if it were to be the case that the concern that underpins 44(i) is a concern that a prospective parliamentarian may be subject to obligations under foreign law, then it makes no sense to condition that section by a qualification such as the “reasonable steps” qualification because a person might take all reasonable steps to renounce their foreign citizenship but not succeed in relieving themselves of their status as a foreign citizen.  And a person in that situation will still be subject to the obligations under foreign law.

This is not, in any sense, an extreme or ridiculous hypothetical.  Your Honours were given the example of military service in Greece.  We know from Sykes that there was a discretion in the Greek Minister as to whether or not to accept the attempt to renounce Greek citizenship.  If that discretion were to be exercised against an attempt to relinquish Greek citizenship, one would have a situation where, in all likelihood, this Court would accept following Sykes that the person had taken all the reasonable steps that they could take.  They would remain, under Greek law, a Greek citizen.

If they went back to Greece, perhaps for example as a member of a parliamentary delegation and they were the right age, they could find themselves press‑ganged or conscripted into military service in that country and it would not matter that they had taken all reasonable steps to renounce, the obligation under Greek law would remain.  So there is no alignment between the reasonable steps reasoning and the obligation.

EDELMAN J:   I am not sure that was the submission that was put on behalf of Mr Windsor.  As I understood that submission, the submission was that actually all steps had to be taken, but the question of reasonableness was judged by an assessment of the foreign law, whether the foreign law required unreasonable steps to be taken.

MR DONAGHUE:   Your Honour, I recall the exchange that you had with Mr Gleeson about that.  In our submission, at that point in the argument there was a transition between what we would say is the test in Sykes, which is an all reasonable steps test, having regard to all the circumstances test, to a quite different question which involves only an assessment of the reasonableness of the foreign law.  And I think your Honour put backwards:  it is an all steps reasonably required test rather than an all reasonable steps test.

The difference between them is, we submit, quite profound because if one is just analysing the foreign law, then one might say, “Well, this is a reasonable foreign law and it would not matter whether it was reasonably applied or whether the person had done everything that they could reasonably do pursuant to it”.  That does not seem to be the way that the Court, in our analysis, conceived of the reasonable steps test because if one looks at the passage in the plurality, at the top of 108 and the passage in Justice Dawson’s reason at the bottom of 131, both of them contemplate a wider range of relevant matters than would go to just an assessment of the reasonableness of the law.

The third matter in relation to obligations, your Honours, is that we submit that the historical record is quite inconsistent with obligations under foreign law being the focus of the section and that is so for two reasons.  The first is that, as your Honours have seen, in all of the drafting up to the final change on 1 March 1898, it is not contested by anyone at the Bar table on either side that the provisions did not prevent dual citizen by descent or a person born overseas who naturalised in Australia, either of those, from serving in the Parliament, even though they were still dual citizens.

So the provision as drafted, leaving aside the late amendment, clearly was not concerned to stop someone with the status of a dual citizen, including the obligation reciprocal upon that status, from serving the Parliament.  That was not the target; the target was the voluntary acquisition of foreign citizenship and, in those circumstances, unless there were a profound change made in 1898, it is not probable that the focus shifted from the voluntary choice to the existence of the unchosen obligation. 

I will come back to the change in 1898 in a moment but, secondly ‑ and it may assist here if your Honours do go briefly back to the 1870 Act in our historical bundle, which is behind tab 19 ‑ your Honours may recall that in both sections – one sees it in sections 6(i), 7 and 8 but for present purposes it might be sufficient for your Honours simply to look at section 7 on page 169.  If you look at about point 3 or point 4 on the page, this section provided ‑ and this is dealing with the case of the foreign‑born citizen who naturalises within the British Empire:

An alien to whom a certificate of naturalization is granted shall in the United Kingdom be entitled to all . . . rights . . . privileges, and be subject to all obligations . . . with this qualification, that he shall not, when within the limits of the foreign state of which he was a subject previously to obtaining his certificate of naturalization, be deemed to be a British subject unless he has ceased to be a subject . . . in pursuance of the laws ‑

You see the same qualification in sections 6 and 8.  So the way it worked was that, to the extent that dual citizenship was permitted under this Act, you could have it but within the foreign State, unless you renounced under their law you would remain subject to their law, to all of the obligations reciprocal on your status as a citizen.

And yet, as Mr Merkel accepted and indeed relied upon, following the commencement of this Act there was no problem with a foreign national who had obtained a certificate of naturalisation serving the British Parliament.  It impliedly repealed the Act of Settlement provision that would have stopped that from occurring.  So there can be no doubt that a foreign citizen naturalised in the United Kingdom could serve in the United Kingdom Parliament irrespective of the obligations imposed on them under foreign law.  That rather points away from Justice Brennan’s analysis of the significance of the obligations reciprocal on status and takes one back to the question of has there been a voluntary choice to acquire foreign citizenship. 

Staying with the historical materials if I might for a short time longer, Mr Merkel’s submission was to the effect that on the commencement of that 1870 Act that I just took your Honours back to, the colonial provisions upon which we rely were, to quote him, “no longer able to do their work”.  The reasoning underpinning that submission was it was said, well, those provisions are concerned with doing of voluntary acts to become a foreign citizen, but once the 1870 Act commenced if you did a voluntary act to become a foreign citizen you would cease to be a British subject and then you would cease to be eligible, and because you had ceased to be eligible by that path the colonial provisions would not have bitten any longer.

Now, that submission is fine so far as it goes, but it rather overlooks, in our submission, the fact that 20 years after the 1870 Act was enacted, Sir Samuel Griffith evidently thought it worthwhile to include in the draft Constitution the provision that has become section 44(i), and not only to include the provision modelled in identical terms on the language found in the colonial provisions, but to extend it from what has been called a vacancy provision in argument to apply at an earlier temporal period of time so it also operated as a qualification provision.

Why it might be said did he do that, if Mr Merkel was right to say that it was not doing any work because of the 1870 Act? Well, the answer to that is, in our submission, clearly that the purpose served by section 44(i) is to set the irreducible minimum standard of disqualification, and the irreducible minimum that Sir Samuel Griffith chose in that first draft was the familiar irreducible minimum from all of the colonial constitutions modelled on voluntary acquisition of foreign citizenship, such that that would be a baseline not susceptible to modification by anyone other than through the 128 referenda process.

The proposition that the section could do no work depends upon an assumed complementary operation between section 34 of the Constitution on the one hand, containing as it did the “subject of the Queen” requirement, and section 6 of the 1870 Act continuing to exist in the same form that it did, and as long as section 34 was not overtaken, and section 34, of course, was a provision expressly made “until the Parliament otherwise provides” – Parliament did otherwise provide in 1902, this was a provision basically about the first election. That was the role that section 34 played. But so long as 34 remained unchanged and section 6 of the 1870 Act remained unchanged, Mr Merkel’s submission might be fine.

But, of course, the UK Parliament could change section 6 and the Australian Parliament could change section 34 and if either of them did that then without the irreducible minimum set by 44(i) you would have had the prospect that people who voluntarily acquired foreign citizenship might have served. So the provision serves that baseline setting role, and it does so in a way that the Convention delegates obviously felt quite strongly about because when an attempt was made, as your Honours may recall in the Sydney Convention in 1897, to make section 44 subject to the words “until Parliament otherwise provides”, it is fair to say that amendment was howled down because it was said, well, we have to maintain a basic minimum.

The point is reinforced by the fact that Justice Gaudron in Sue v Hill at paragraph 164 – your Honours do not need to go to it – endorsed by Chief Justice Gleeson and Justices Gummow and Hayne in Shaw, at paragraph 26, recognised that there would be no barrier to the Parliament changing section 34 of the Constitution to remove the citizenship requirement. Parliament could have provided that it no longer was a qualification for election to the Australian Parliament that you be an Australian citizen at all, and had it done that, quite obviously, absent the irreducible minimum of section 44(i), there would have been no equivalent path to achieving the purpose.

As to the 1898 change, Mr Merkel’s submission was that the drafting committee must have realised that section 44(i) would not achieve its purpose and to have changed the language so as to ensure that it would. That submission, we submit, cannot be accepted for two reasons. First, it assumes without any support whatsoever in the historical record that it was a purpose of section 44(i) to disqualify all of the people who are listed in the oral outline - if your Honours still have the Windsor oral outline. Paragraph 23 of that oral outline lists a number of categories of dual citizen:

(a)natural‑born subjects, who were also foreign citizens by descent from birth;

(b)foreign‑born citizens by birth in the foreign territory, who then became naturalised in Britain or Australia;

(c)foreign‑born citizens by birth in the foreign territory who were also deemed by statute to be natural‑born subjects by descent.

All three of those well‑established categories of dual citizen, all three of them not disqualified from sitting in Parliament anywhere in the British Empire, and you are invited by Mr Windsor to assume that it was a purpose of section 44(i) to disqualify all, notwithstanding that they have pointed to nothing in the historical record that would give any foundation for that assumption.

Second, if it be the case that the members of the drafting committee realised that the section would not achieve the purpose of disqualifying all of those people, and then changed it to extend it so that it would disqualify all of those people, the submission involves asking your Honours to conclude that Mr Barton, at a minimum, deliberately misled the Convention on 4 March when he denied doing any such thing – when he said that they were drafting changes only that had the same effect as the earlier provisions.  It is also inconsistent with what Mr O’Connor said a couple of days later to the same effect.  Your Honour Justice Nettle mentioned that passage earlier.

Contrary to the amicus’ submissions, reliance on that material is not impermissible as an attempt to have your Honours act on the subjective belief of particular members.  That injunction in Cole v Whitfield is directed to attempts to suggest that the Constitution should operate in a particular way because particular framers or members of the Conventions thought that it should or would operate in a particular way. But these remarks that we rely on are about process. They are about what the role of the drafting committee was. They are not about how the clause was thought to be applied and they show as a matter of process that what the drafting committee was doing was recasting rather than redesigning or extending.

Now, that submission draws support, we submit, from the debate that your Honours have seen behind tab 13 in the historical bundle. This debate is, as has been observed – it is about 16 March ‑ it is not about the amendment that changed section 44(i) into its current form and, because it is not about that, that is why we did not rely on it in our submissions in‑chief.

But what it does show, if your Honours look at the top of page 2440 in the left‑hand column at about point 2 down the page, is it shows that of the many amendments that had been made by the drafting committee at that time, Mr Barton thought that they were almost all minor drafting amendments, but he said there was one of substance and, as it happens, it was to section 44, and Mr Barton drew the Convention’s attention to the fact that the drafting committee had substituted the word “one year” for “three years” in the provision that had previously been about felons.

Now, if that was a change of substance of the kind that Mr Barton felt that it was necessary to explain as perhaps going outside the remit of the drafting committee, it is quite a remarkable proposition that the disqualification clause could have been extended to the three categories of persons that I have just taken your Honours to without it being mentioned by Mr Barton.  As Mr Kennett pointed out for the amicus, the delegates all had a chance to have a look at this over a couple of days before the clause was debated on 7 March, and again no suggestion there of any change of substance.

Your Honours, with respect to all of this historical material, I need to slightly correct a submission that I made in opening.  I submitted to the Court that the Court in Sykes had not been taken to all of the historical material that I took your Honours through.  I based that submission on the CLR report of the argument and on the fact that there is no discussion at all in any of the judgments of any of that historical material.  But my instructors have been able to extract the original file in relation to Sykes v Cleary, and so I do need to modify that submission a little, if I may.

Sykes, your Honours may know, was argued in the last 20 minutes of one day and over the course of the next day.  So the total argument in the case was 20 minutes over a day’s argument.  The case concerned the office of profit under the crown point which was the main issue in the case, how the vacancy should be filled in the event that there was a vacancy and then the 44(i) point.  So all of those issues were being dealt with in just over one day’s argument.  And, unsurprisingly, in those circumstances the detail with which the Court was taken to anything was significantly less than in the three‑day argument your Honours have heard directed just to 44(i).

The Court did not have and was not taken to most of the extracts from the Convention Debates to which I have taken the Court, including critically the 4 March extract.  It did not have the Colonial Office memorandum and it was not taken through any of the pre‑Federation material in relation to dual citizenship that I took your Honours to, up to and including the 1870 Act.  So there was no submission made to the Court as to the ways in which dual citizenship could arise and the fact that the colonial disqualification provisions only operated on a subset of those forms of dual citizenship, so none of that was covered.

The Court did have the Adelaide draft of the Constitution and the Melbourne variation, and it was alert to the fact that there had been a change in the language between the 1897 and the 1898 draft and, indeed, without the benefit of all of that. The other material, that change was relied on, as one might expect it would be, to support an inference that the framers must have deliberately extended the clause because they had changed the language.

So that argument was put in Sykes and the Court was also taken to a number of the colonial precursor provisions that I have taken your Honour to, but for the purpose of saying, “Look at these narrower provisions.  The final text was wider, therefore it must be that the intent was to bring about a wider disqualification”.  So the Court did not hear an argument of the kind that we have put to your Honours, but they did have that material to which I have referred.

Very briefly, your Honours, in relation to Senator Roberts.  Your Honours heard a submission that nothing changed, as a matter of substance, when Senator Roberts was naturalised in 1974 under the Australian Citizenship Act.  It was said it was just a change of label, not a change of any legal significance.  That submission, with respect, is not right.  It is not right because in Shaw, to which your Honours were taken – you do not need to go back but it is 218 CLR 28 – at paragraph 32, the majority in this Court held that a person who entered Australia after 26 January 1949, which was the date of the commencement of the Australian Citizenship Act, as an alien ‑ who was not an Australian citizen and did not have parents who were Australian citizens was an alien, notwithstanding the fact that the person was a British subject and, of course, Shaw concerned someone who was a British subject.

So Shaw is authority for the fact that, even if you were a British subject, when the Roberts’ arrived in Australia, they were aliens. They were British subjects, but they were aliens within the meaning of the Commonwealth Constitution. When they were naturalised, they were not. The effect of the naturalisation was to take them out of that constitutional status and amongst other consequences that prevented or alleviated them from the possibility that they would be deported on character grounds, as Shaw and Paterson, those sorts of cases demonstrate.

So there was at least that change as a matter of constitutional significance, even if there were no change in the day‑to‑day rights and obligations within Australia, which does appear to be the case.  Secondly, your Honours, to the extent that knowledge is relevant, in our submission the critical time is the time of nominations, the 2016 date, and we do not understand any submission that we put to turn on a day‑by‑day assessment of what happened from 1974 through to the date of nomination.

Finally, your Honours, can I, really by way of conclusion, attempt to draw together what we see as a number of different strands of the argument that have emerged over the last three days and there have in particular, as we understand it, been two variations that have been raised in exchanges between members of the Court and some of our learned friends and, indeed, myself on the first day that involved different ways of approaching both the construction of 44(i) and the understanding of Sykes.  I will take the four variations in turn.

The first variation, which we submit is an available approach, is to interpret section 44(i) as applying only to a person who has – there are two parts to this – one, by voluntary act acquired foreign citizenship or, two, exercised any right, grant, pursuant to foreign citizenship, that latter formulation being a way of describing an overt act of retention.

So that if you have done anything to exercise any right that foreign citizenship gives to you, including, for example, applying for or travelling on a foreign passport, then that is a voluntary act of acquisition or retention. That analysis would, we submit, fit very neatly with the history of section 44(i) that I have taken your Honours through which was concerned with acts by which foreign citizenship were obtained but also, your Honours might recall, the colonial formulation included the words “concur in” - concur in foreign status as a subject or citizen of a foreign power and those words, we submit, comfortably accommodate the exercise of rights that are recorded by foreign law.

KIEFEL CJ:   Except that “concur in” takes away from the more objective approach from an overt act.  It involves knowledge, does it not?

MR DONAGHUE:   Well, it could be understood as involving knowledge, or it could be understood as meaning if you do something overtly by which you manifest the exercise of this right.  So it is not just knowing about it, you have to do something.

KIEFEL CJ:   Concur in the actions of others, take some step.

MR DONAGHUE:   Your Honour, obviously there is – we are content with – I mentioned the “concur in” not as part of the test but drawing a parallel with the historical precursor.  The way we formulate it is “by voluntary act acquire or exercise any right granted pursuant to”.  We submit that would fit conformably with the history; indeed, it would fit better with the history than the primary submission that we advanced, for reasons that I have already taken your Honours to.

It would also sit, in our submission, consistently with Sykes because both Mr Delacretaz and Mr Kardamitsis by definition had exercised rights as foreign citizens in coming to Australia in the first place.  Mr Kardamitsis, for example, had travelled on a Greek passport.  The facts do not tell us whether Mr Delacretaz did, but he must have, given he came here as a 28‑year old, so that there had been that exercise of rights as a foreign citizen and so the case can be explained in that way.  That is our pathway 1.

GORDON J:   Is that consistent with Sue v Hill as well?

MR DONAGHUE:   Also completely consistent with Sue v Hill.  As your Honours might recall, Mrs Hill applied for a British passport in January 1998 and sought election in October 1998, so she had exercised a right pursuant to foreign law to acquire that passport in very close proximity to the relevant date of ‑ ‑ ‑

GORDON J:   So if you were applying that test to the references here, would you get to the same result as your primary submission?

MR DONAGHUE:   You would, your Honour, certainly with the possible exception of Senator Roberts and Senator Ludlam.  In respect of Senator Roberts, he came to Australia as a child, I think the facts are, travelling on his mother’s passport.  I am not aware of any finding of fact that would indicate that he has exercised any right granted pursuant to British subject status.  So, on that formulation, Senator Roberts would not be disqualified on that approach.

With respect to Mr Ludlam, the position is more difficult because, unlike all of the other referred persons, there is no affidavit from Mr Ludlam, so we do not know very much.  The only information about Mr Ludlam is the information that was referred by the Senate.  It reveals that he left New Zealand as a three‑year‑old and travelled in Asia, I think, for about five years with his family.  He was travelling around, but it does not reveal whether he was travelling on his mother’s passport or whether he had a passport issued in his own right. 

So, in the event that your Honours were to adopt an analysis of section 44(i) along those lines, it may be that the final answer to the question in Mr Ludlam’s case would need to be resolved by a single judge in accordance with the reasons of the Court, on the basis of some further material.

GAGELER J:   Would it matter that he was 12 or 13 years old at the time he may have ‑ ‑ ‑

MR DONAGHUE:   Even younger than that, your Honour. 

GAGELER J:   Well, even younger than that?

MR DONAGHUE:   I think he was only eight.  It may not.  It may well be ‑ ‑ ‑

GAGELER J:   I am really asking for clarification of your submission - the act that you referred to can be the act of a child, can it?

MR DONAGHUE:   Well, your Honour that raises a difficult issue and an answer that might not fit for all children.  For example, in Mr Kardamitsis’ case, he came as a 17‑year‑old, an unaccompanied 17‑year‑old, I think.

GAGELER J:   So we get into questions of Gillick competence.

MR DONAGHUE:   Your Honour, in our submission, on any of the constructions that are raised in relation to 44(i) there are potential factual questions that will arise at some point.  Even on the very hard line approach put by Mr Windsor it was accepted that choice as to the exercise of the right under the exorbitant law might give rise to inquiries of that kind.

In our submission, that approach that I have just been outlining will, in the vast majority of cases produce a very bright line and certain operation to section 44(i) because certainly in the case of a person who does not know about their foreign citizenship there would be no need for any inquiry into knowledge on that approach. The only question would be: have you exercised any rights under foreign law? That would usually be an objective question that could be readily answered or have you exercised rights to acquire foreign citizenship. So that the knowledge complications would all be avoided.

EDELMAN J:   How would one read section 44(i) in this way? How would one notionally insert texts so that it were to reach this result?

MR DONAGHUE: Well, your Honour, in our submission, one does not need to insert texts to achieve the result. The task is to interpret what kind of status as a subject or citizen was section 44(i) concerned with, and in the same way as we submitted in relation to the primary submission that I developed orally, that one can confine the widest possible meaning of those words by reference to contextual considerations, including the history of the provision and the purpose that was identified.

One would do the same thing by reference to material of very much the same kind in identifying as the driving constitutional concern split allegiance manifest by a voluntary action to associate oneself with the foreign – to acquire the foreign citizenship or to exercise rights conferred by foreign law, so that it is accommodated as a subset of the widest literal meaning of the clause identified by reference to considerations of constitutional purpose and history. 

We submit that that is the much more conventional way to approach the task than to read it as subject to extra constitutional limits to be found in international law or other places.  The second pathway we identify which is in many ways similar to the first, and which we understand to have been raised by some members of the Court, is that Sykes should be understood as an authority directed only to the situation that it threw up, being the position of section 44(i) with respect to a naturalised person and that because both Mr Delacretaz and Mr Kardamitsis were, of course, both in that category and that it says nothing, with the sole exception of Justice Deane, who directed his attention to the natural‑born citizen, but the case otherwise says nothing as to the position of a natural‑born Australian citizen.

If that be an appropriate way to read Sykes then it would follow that the Court is free, in the context of section 44(i), to interpret the provision in a way focusing on its purpose with respect to split allegiance and focusing on the very clear historical antecedents that were directed to voluntariness and voluntary acts, such that one could again, by a similar process of reasoning, reach the conclusion that, at least with respect to natural‑born Australian citizens, one needs an act of the kind that I have identified. Again, as your Honour Justice Gordon put to me, I think, on the first morning of the hearing, in raising that kind of construction, there would be no role for knowledge in the application of the section.

GAGELER J:   Who is a natural‑born Australian citizen for the purposes of that submission?  What are the categories of person?

MR DONAGHUE:   A person who is an Australian citizen by reason of the circumstances of their birth.

NETTLE J:   You mean born in Australia only, as in Ms Waters ‑ ‑ ‑

MR DONAGHUE:   No, by the circumstances of their birth, so that can be territorially within Australia, but it can also be by reason of descent.  What matters is that you are born an Australian citizen.

GAGELER J: I may be wrong, but the Citizenship Act now, for people born outside Australia, requires registration, does it not?

MR DONAGHUE: Yes, it does, and it did in the case of Ms Waters as well. The Citizenship Act now makes it clear that this status as an Australian citizen arises only from the point of registration. So a person in those circumstances – there will be a question not thrown up for decision by this case – would not be an Australian citizen immediately by their birth, but they would have an entitlement to citizenship by reason of registration.

In the case of Ms Waters we do not have that problem because the citizenship in its earlier form said nothing to suggest that this citizenship status started only from the moment of registration, and it appears to us the better construction of the section is that – and we would support this if necessary by reference to the extrinsic material – but the second reading speech talked about in that context being a citizen at birth, and it does appear from the language used in section 11 of the Act as in force at the relevant time that, the condition subsequent of registration being satisfied, the person would always have been Australian.

GORDON J: But just so I am clear, does that mean that in relation to the current Citizenship Act and the way in which it deals with a person in the position of Ms Waters, that she would be a natural‑born Australian citizen, or not?

EDELMAN J:   If the condition subsequent is not enlivened, then the condition is never enlivened.

MR DONAGHUE:   Under the current Act – the current Act throws up a question in that regard which – and I do not want to duck your Honours’ questions, but it does not fall for determination in this case.  The reason that it is slightly difficult is that the natural‑born category is a category that, as your Honour Justice Bell put to Mr Newlinds this morning, goes back a long way.  It goes back to Calvin’s Case and when one looks at the cases that define the boundaries of the concept – and they are summarised by Dicey in his conflicts work in 1896 – one category is persons who are born within the territory, one category is persons who are descended from parents, but it does not as a historical category address the new phenomenon of descent but, plus registration.

GAGELER J:   That is really the problem with it, is it not, because you only see that language in section 34 and, as you point out, section 34 only applied until the Parliament otherwise provided – Parliament has otherwise provided, and citizenship law has moved a very long way from Calvin’s Case and what Dicey was talking about.

MR DONAGHUE: I obviously accept all of that, but section 34 shows, as is not surprising, that the framers of the Constitution were familiar with the very well‑established category. But it does not show us – it does not now govern what is – well, it does not create a constitutionally immutable status and it is not now a status that is important for any constitutional purpose beyond the possibility – and I put it no higher than that – that when one looks at the 44(i) question, one could approach it from the point of view that says if someone is born an Australian citizen, so that they never have any other status, that that is a significant thing in the operation of section 44(i) because they are not on notice of the fact that they have ever had a connection with any other foreign power of a kind that might engage the operation of the section whereas, if your Australian citizenship comes later, then you are in a factually markedly distinct position from the Australian‑born citizen, and that is why the concept might have some utility. But there is a heavy overlap between the first two pathways that I have identified and one ‑ ‑ ‑

GAGELER J:   While I am bothering you about the second pathway ‑ ‑ ‑

MR DONAGHUE:   Yes.

GAGELER J:   ‑ ‑ ‑ so you have set up this dichotomy between a naturalised person and a natural‑born Australian citizen, within the category of naturalised person do you fit Mr Roberts?

MR DONAGHUE:   Yes.

GAGELER J:   I mean, it was not called “naturalisation” in his case but will you expand that category to include citizenship by notification as it was then described?

MR DONAGHUE:   In my submission, it should be so expanded.  It was a statutory conferral of status as an Australian citizen, I accept by a particular pathway that was enacted to deal with the position of British subjects, but once it is accepted that British subjects could be aliens and were aliens from the commencement of the Australian Citizenship Act in 1949, it would, in my submission, be surprising if a procedure whereby those people move from being aliens to non‑aliens did not come within the concept of naturalisation as it is used in the Constitution conferring power with respect to naturalisation and aliens, but naturalisation should not be construed as applying only to people who are not British subjects.

BELL J: Mr Solicitor, just going back to Ms Waters, as I understood it at the time of her birth, section 11(i) of the Citizenship Act governed her circumstances and provided that:

A person born outside Australia on or after 26 January, 1949 is an Australian citizen by descent if –

(a)in the case of a person born in wedlock‑at the time of the birth of his father or mother was an Australian citizen –

relevantly, and that provision contemplated registration at an Australian consulate within five years after its occurrence.

MR DONAGHUE:  Yes, that is right.

BELL J:   Or within such further time as the Minister allowed.

MR DONAGHUE:   That is so.

BELL J:   So your notion of natural‑born Australian involves something of a gloss not only on the concept as it was understood at the time of Calvin’s Case but it does not pick up anything in the Citizenship Act which sees Ms Waters as acquiring citizenship by descent but upon registration.

MR DONAGHUE:   Your Honour, I can answer that in a couple of parts.  The concept of citizenship by descent is itself an old one.  In certain forms it goes back to the 14th century and in a more modern form to the 18th century, and under those laws there was no registration requirement but the person born to a British father outside Britain became a natural‑born subject.

BELL J:   Yes.

MR DONAGHUE:   So that concept was understood for a long time as not requiring birth within the territory and citizenship by descent was not itself incompatible with being a natural‑born citizen.  So the question then is:  does the addition of the registration requirement change the position that prevailed for a long time pre‑Federation?

In our submission, if one took the position of Ms Waters but assumed for a moment that Canadian law, as it did from a week after Ms Waters’ birth, did not confer citizenship jus soli, so that it required there to be someone with at least a right of permanent residence in Canada.

If she were not an Australian citizen by birth and if her parents had not got around to registering her for a number of years, she was stateless for that period of time.  So the question of construction in relation to section 11, in our submission, points against the conclusion that someone born to Australian parents was stateless for a period and would have been stateless for ever if they did not get around to registration.

BELL J:   But the fact is she was a Canadian citizen from the moment of birth.

MR DONAGHUE:   But that was a quirk – I should stop using that word, your Honour.  That was a feature of Canadian law that was removed very shortly after and that had already been removed – I withdraw that, your Honour.  Citizenship by birth within the territory was common throughout the British Empire – Britain, Australia, Canada.  All of those jurisdictions have removed that rule.  They did it at various different times.  Canada did it, inconveniently for Ms Waters.  But one cannot assume, looking at a provision of this kind, that there will be some other citizenship that is available to the child of two Australian‑born parents who happen to be in another country because so many countries do not have a jus soli rule any more. 

So one is confronting, looking at that section, in my submission, a reasonably stark choice between an interpretation that says the person is stateless until registered, or an interpretation that accepts that they, so long as the registration occurs, are properly to be regarded as having always been Australian, an unsurprising conclusion, we submit, given the close connection with Australia that the section, on its face, requires.

GORDON J:   Does that mean, Mr Solicitor, the distinction is really between Australian citizenship from birth as distinct from Australian citizenship obtained either by naturalisation or conferral?

MR DONAGHUE:   Yes.  Your Honours, I do not know that I really need to develop it in any length, but in addition to those two pathways there are two others.  The third really reflects the essential submission that the Attorney‑General developed in writing and orally, which was an attempt to accommodate as best we could the historical record on the one hand and a reading of Sykes v Cleary that treats it as governing more widely than just the naturalised persons with whom the case was directly concerned.

On that approach, it may be useful to clarify exactly how we put it because we submit that, on that approach, there are two relevant questions which to some extent in argument have been run together.  The first question is a question of knowledge of the status of a citizen under foreign law.  And by “know” we mean actually, subjectively know that the person has been a foreign citizen or wilful blindness as to that status.  If we have said anything orally or in writing that suggests that we were embracing a notion of constructive knowledge, that was not intended and that is not part of our case.

GAGELER J:   You say “has been” as distinct from “is”?

MR DONAGHUE:   I do say “has been”.  The first step of the inquiry is knowledge that “are now” or “have been” a foreign citizen.

GAGELER J:   I am sorry; just say that again.

MR DONAGHUE:   That the person “has ever been” a foreign citizen, is how we put it – “has ever been”.

GAGELER J:   “Has ever been”?

MR DONAGHUE:   Yes.  Now, Sykes, in our submission, was not concerned with that first step question because it is obvious that the two people who are in issue in Sykes did have that knowledge.  So there was nothing to be decided in Sykes about the knowledge part of the inquiry.  Sykes was about the second part of the inquiry, which is: what does a person who actually has that subjective knowledge that they have ever been a foreign citizen have to do in order to escape the operation of section 44(i)? And the answer is they have to take all reasonable steps in order to renounce that citizenship.

And, on our case, that second question is an objective question, albeit informed by all of the considerations identified at the top of page 108 in the plurality judgment and at the bottom of page 131 in Justice Dawson’s judgment.  So it is at the second stage totally irrelevant that a person believes that they have taken reasonable steps because having had the knowledge that they were ever a foreign citizen, the question is then one about what you need to do to relieve yourself of that status.

In our submission, that analysis would deal, for example, with your Honour Justice Edelman’s question about changing of mind because, if one is in the second limb of the inquiry about - the objective limb, if you change your mind and stop doing the things that needed to be done, you would be disqualified.  You would not have taken all reasonable steps in order to ‑ ‑ ‑

EDELMAN J:   My inquiry was more about where you did all the things that needed to be done, but in the three or four month administrative period changed your mind and wrote to the relevant embassy and said, “I now withdraw my application to renounce”.

MR DONAGHUE:   But in my submission that problem, to the extent that it is a problem, is a problem that exists within the framework set by Sykes v Cleary already.  As we analyse the section, the important thing is that the person has done everything that they could reasonably do in order to renounce the status and the operation of the section does not then turn on the bureaucratic efficiency of the foreign country in processing the renunciation application.  So, if you have done everything that you could do, you would not be disqualified.  But if, having done everything you could do but before the process finished, you terminated the process then at that point in time you would be disqualified.  That is how the section would work.

KIEFEL CJ:   Well, you would not have done everything that you could do to achieve the result.

MR DONAGHUE:   Exactly.  Well, you would no longer have done everything you could do, and so you would be disqualified.

KIEFEL CJ:   Or there is an overt act in relation to the foreign citizenship.

MR DONAGHUE:  Exactly, your Honour, but the final pathway – and I will not develop this – is really what we put in the alternative in writing, which is that Sykes is properly understood as operating to disqualify only a person who has failed to take all reasonable steps to renounce and that that test accommodates within it the knowledge of foreign citizenship of the

person concerned, such that it is reasonable to do nothing in circumstances where the person does not know that there is anything they need to do in order to renounce foreign citizenship because they are not aware that it exists.  That submission, as we understand it, heavily overlaps which what Mr Joyce has put and in light of the time I will not develop further.  Unless there is anything further, your Honours, those are our submissions.

KIEFEL CJ:   Yes, Mr Bennett.

MR BENNETT:   Your Honours, I have a number of specific short submissions about matters that have been put against us.  The first is that Mr Walters submitted that if one knows a fact indicating foreign citizenship one has the duty to make reasonable inquiries.  Your Honours, whenever the law asks whether a person has notice or knowledge, one must look to the whole of the notice or knowledge, not merely to notice or knowledge of part.

The clearest example of that, I suppose, is the case your Honours are no doubt familiar with of Carl Zeiss Stiftung v Herbert Smith & Co [1969] 2 Ch 276 - I will not take your Honours to it. What happened there was that a plaintiff claimed that all the assets of a defendant were held on trust for it. The defendant used some of those assets in defending the case to pay its solicitors a sum of money on account of costs. The plaintiff then sued the solicitors to intercept those funds and said, “Those funds are held on trust for me and you received them with notice because you have seen the statement of claim.”

The court said no, you do not just look at part of what the defendant knows, you look at the whole of it, and the defendant’s solicitors knew what was claimed by the plaintiff and knew that it was denied by the defendant.  Taking the whole of their knowledge into account, they did not have notice of the relevant trust, and, your Honour, it is the same here. 

If a person has partial knowledge about some connection with a foreign country and then some reasonable belief that nevertheless one is not a citizen, then that is the end of the matter.  In my case, of course, Senator Canavan, on the evidence, believed that he was entitled to obtain the Italian citizenship if he filled out and lodged a form.  He chose not to fill out and lodge the form and his overall view therefore was that he was not an Italian citizen.  It is not fair to take a little bit of that and say he knew there was a connection with Italy, therefore, that is enough to take us there.

The second letter my learned friend, Mr Walters, submitted was that one purpose of section 44 was to prevent a foreign power influencing parliamentarians. We do not accept that that was a purpose, but if it is, it is pretty unrealistic in the case of Senator Canavan to imagine that with a connection as remote as the connection that he had with Italy that Italy could contemplate being able to influence his vote in Parliament, or that he would take any notice if they did.

My friend, Mr Walters, then submitted that another purpose was to satisfy public perception.  Now, your Honours, again we submit that is not shown to be a purpose, but if it is, surely one must hypothesise an informed member of the public who knows all the facts, not a member of the public who knows one fact and no others.

For example, if you said to a member of the public, “Senator Canavan has Italian citizenship.  What do you conclude from that?”  That is one thing.  But if the member of the public is told, “This is the way he is alleged to be an Italian citizen.  Look how remote it is and look how dubious it is and look at what he knew”, the member of the public might have a very different perception and one must, in my respectful submission, look at the whole of the perception, not just the perception assuming knowledge of one fact only.

Turning to the submissions made by my learned friend, Mr Merkel, he asked the rhetorical question what if there was an exorbitant claim but the individual wants to accept it?  Now, your Honours, the answer to that is very simple.  Mere affection for a country, absent a relevant connection, is irrelevant.  A communist in the 1950s would not have been disqualified because he or she had an affection for the Soviet Union.

There is an unreported decision of this Court, which I will not take your Honours to, Crittenden v Anderson in 1950, where it was argued that all Roman Catholics were excluded by section 44 because they had an allegiance to the Vatican. Justice Fullagar struck out that petition as frivolous and vexatious. The unreported judgment is available but we have not troubled to give it to your Honours. One might get the same sort of situation between a Zionist and Israel.

The point is that mere affection for a foreign country does not disqualify, therefore why should one add that affection to an exorbitant claim to say that it disqualifies?  If the person wants to take a step to accept the exorbitant claim, that would be a different matter, but merely wanting to accept it is not sufficient.

Then my friend, Mr Merkel, submitted that one can have a duty of allegiance without knowledge because there can be an actual duty of what the foreign country claims.  The first and shortest answer to that is to quote my learned friend, Mr Walker, who submitted eloquently that one cannot heed what one does not hear and that is the short answer to it.  Allegiance without knowledge is pretty ineffective and what can the foreign country do in relation to the Australian citizen resident in Australia who it claims as a citizen.

Turning to the submissions of my learned friend, Mr Gleeson, he submitted that in Sue v Hill the two candidates in question, the two respondents, believed that they had renounced and therefore, he says, the ratio of the cases that belief is irrelevant.

Your Honours, that is simply not the way one works out a ratio.  One does not get a ratio by looking at the facts and looking at the order and putting them together.  In addition to that, if one goes to page 108 – I am sorry, I said Sue v Hill and I meant Sykes v Cleary.  I am sorry, your Honours, it was a slip of my tongue.  At page 108 of Sykes v Cleary your Honours see that the plurality at the top of the page, in about the fifth line, say:

What is reasonable will turn on the situation of the individual, the requirements of the foreign law and the extent of the connexion between the individual and the foreign State of which he or she is alleged to be a subject or citizen.  And it is relevant to bear in mind that a person who has participated in an Australian naturalization ceremony in which he or she has expressly renounced his or her foreign allegiance may well believe that, by becoming an Australian citizen, he or she has effectively renounced ‑

So that is put up as a circumstance which may prevent section 44 operating. They go on in the next two paragraphs to say what the omissions of the two respondents were and come to a conclusion against them. Now, the paragraph I have just read makes it clear that it cannot be part of the ratio that a person who believes that he or she has effectively renounced is nevertheless necessarily caught.

There is no discussion anywhere in Sykes v Cleary of the effect of their belief that they had effectively renounced.  All one has to support my learned friend’s proposition that it is ratio is that the facts show that they believed they had effectively renounced but the Court found against them.  Your Honour, that is simply not enough in the absence of discussion and in the presence of the passage I have read to say that that is ratio.

GAGELER J:   It is really ratio of dicta, is it not?

MR BENNETT:   Yes.

GAGELER J:   You are calling it ratio but all of this was unnecessary for the decision.

MR BENNETT:   That is so too, your Honour, yes.  Now, your Honours, my learned friend, Mr Gleeson, talked about the need to make inquiries.  We just comment that making inquiries would not have assisted Senator Canavan.  Even this Court may not be able to determine conclusively if he is an Italian citizen for all the reasons I have given and making inquiries would not have done him much good.

In fact, when he made inquiries eventually of the consulate he got what we know from the expert report was quite misleading information.  The consulate just performed a bureaucratic task of looking up a register and wrote him a letter, saying, “You are on the register”.  And, as the experts say, that does not mean anything in relation to whether he has become a citizen.  So, your Honours, taking steps to make inquiries would not have made much difference in his case.

Your Honour, my learned friend, Mr Kennett, then referred to the passage in Sue v Hill, which I will not take your Honours to, at page 113, concerning enforcing allegiance.  And I simply repeat:  how could Italy enforce anything if one imagines a hypothetical Italian Attorney‑General going to the hypothetical Italian Solicitor‑General and saying, “Please give me an advice on whether we can impose military service on Senator Canavan”.  The answer would have been a monosyllabic “no”.

My learned friend, Mr Kennett, then referred to the “taking all steps passage” at page 131, point 7, of Sykes v Cleary, in the judgment of Justice Dawson.  We simply remind your Honours that, at the bottom of the same page, his Honour Justice Dawson said this, eight lines from the bottom:

What is reasonable will depend upon the circumstances of the case.  It will depend upon such matters as the requirements of the foreign law for the renunciation of the foreign nationality, the person’s knowledge of his foreign nationality and the circumstances –

et cetera.  So, there too there is a reference to that aspect.  Now, turning to – yes, my learned friend, Mr Kennett, then this morning asked can a foreign law be exorbitant in relation to one person and not another?  Our answer to that is that in relation to Senator Canavan, it fails at both levels.  Indefinite succession in general is exorbitant and, although in our case we are only talking about grandparents, the other circumstances involving loss by the grandparents by naturalisation, the date of loss by naturalisation in relation to the date of birth of the next generation, and the retrospectivity, all those matters demonstrate exorbitance in relation to Senator Canavan, even if the general principle is not always exorbitant.  So, we say both to both limbs of that question.

Mr Kennett then referred to the matters concerning the amendment of the draft in 1898.  We simply remind your Honours of our submissions at paragraphs 45 to 46 of our original submissions where we analyse the significance of that amendment, and we adopt what has been said by the learned Solicitor‑General and my learned friend, Mr Walker.

The other thing Mr Kennett then submitted that this was not inter partes litigation, therefore there was no onus in relation to proving whether my client was an Italian citizen.  I am not sure that he is entitled to argue that because that is really a matter of fact rather than law.  It is dealt with in our submissions at paragraph 73, although he suggested that we had not raised it.  But the Court needs to be comfortably satisfied of the fact of Italian citizenship.  I ask your Honours to bear in mind we do not submit that any Italian law is unconstitutional; rather, that the Italian Constitution dictates a particular interpretation of the law of 1812, which is what the experts say is the better view.

He then submitted that exorbitancy is not reached in relation to grandparents.  Our answer is that it is here because of the other factors.  Your Honour Justice Edelman asked him, “Can one recognise foreign law for a limited purpose?”  I repeat the same submission, that it does not arise here because the recognition that is to be accorded can be a total rejection or it can be a partial rejection, and either way we succeed.

My learned friend, Mr Kennett, then submitted that the effect of the Italian constitutional decision was not that it was retrospective.  Your Honours, that is a verbal quibble.  Whether one describes it as retrospective or retroactive or declaratory of what has always been the situation does not matter.  The fact is that, prior to the decision, everyone thought one thing and, after the decision, everyone thought the other, and that is apparently applied retrospectively.  As I say, which words one uses is a mere verbal quibble.

Your Honours, there is nothing which has been submitted by any of the parties which seriously detracts from the case I put in‑chief and I really do not need to say more about that.  I conclude by saying this.  I referred yesterday to the coincidence – and it is a coincidence – between the better view of Italian law and what Senator Canavan was told by his mother and believed in each case that he was entitled to Italian citizenship if and only if he lodged a form with the Italian Consulate. 

That demonstrates three things:  first, that this Court cannot find that he was ever an Italian citizen; secondly, that he never believed that he was an Italian citizen; and, thirdly, that he did all he could not to become one because on his belief, and perhaps correctly if we are right about the Italian legal opinion, what he did was not to complete the documents his mother

gave him and not to lodge them.  That was all he could do not to become an Italian citizen and that is exactly what he did or did not do. 

For those reasons, it is my submission that the position in relation to Senator Canavan is a very clear position overall and that your Honours should answer the question accordingly.  We do, as I am sure the other parties do, remind your Honours of the importance of an urgent decision.  Of course, it is a matter for your Honours how long you take. 

We ask your Honours to consider the possibility, if your Honours are firmly of the view that Senator Canavan is not disqualified but it is going to take some time to prepare reasons in relation to him and the other members, that your Honours consider the possibility of making orders in relation to him before the pronouncement of reasons.  May it please the Court.

MR TOKLEY:   May it please your Honours, I can be very short.  There are no submissions in reply on behalf of Senator Xenophon.  May it please the Court.

KIEFEL CJ:   Mr Walker.

MR WALKER:   May it please the Court. My one submission in reply is intended compendiously to address matters that have been argued against or about our client’s position with respect to section 34, the purpose of section 44 in its context, the relevance, if any, of knowledge and the virtue, or lack thereof, of some competing arguments from the point of view of a desirable degree of certainty, not just certainty of understanding – that will be supplied by this Court’s decision – but certainty of application in practice.

I start by noting that there is created originally by the combination of sections 34 and 16 and section 44 the scheme which is the Australian prescription of the qualification to stand for election as an Australian parliamentary representative. Not too much should be made of the fact that the opening words of section 34 contemplates legislative alteration, because not all of section 34 can in substance be altered by a law made as there envisaged.

I have this in mind. Section 44(i) forbids what I will call foreign attachment. Section 34(ii) might be altered but could not, of course, be altered so as to permit foreign attachment, because that would be to infringe 44(i) and there is no power in the Constitution for that to be done except under section 128.

Laws have been made iteratively as envisaged by section 34, which of course is then picked up by section 16’s reference to the House of Representatives, qualifications for senators. At present the Commonwealth Electoral Act by section 163 has the dual requirement of citizenship plus either enrolment or entitlement to be enrolled as a voter. That takes one to section 93 whereas it happens, apropos some of the matters drawn to attention by my learned friend, Mr Newlinds, with respect to his client’s history, where you will see grandfather clauses concerning certain British subjects and their rights to vote. That is in section 93(1)(b)(ii) and subsection 93(8A).

So, the scheme of sections – if I could abbreviate to sections 34 and 44 – is one which has from the beginning a clear reference to what I am going to call a national attachment to Australia and negatively, without the possibility except pursuant to constitutional amendment of change, there is a clear, therefore one might call it paramount, requirement of non‑attachment, to use a summary paraphrase of 44(i).

It is not completely true that no discrimination can be seen, on the face of the Constitution as enacted, between what is there called, in 34(ii), a natural‑born subject of the Queen and, on the other hand, a naturalised subject of the Queen. It is true that the evident intent is, subject to the one discrimination, to which I am about to come, that there be equal candidacy available for persons of those statuses. That, with respect, is the more important observation: whether you be natural born or naturalised, it is intended, as part of the polity’s constitution, that you can be a candidate to sit in Parliament.

The one discrimination, of course, is that, while both categories have to have been three‑year residents, the naturalised subject of the Queen has to have been naturalised for at least five years. That discrimination, for whatever policy reason appeared appropriate at the time, has of course been expunged by subsequent legislation. So that being, of course, a self‑evident potential at the time the Constitution was made, that that discrimination would be expunged, so it would be appropriate for this Court to approach the matter on the basis that the express terms of section 34 – true, subject to the possibility of parliamentary alteration – indifferently indicated that natural born and naturalised subjects of the Queen could be candidates.

In our submission, the following circumstances are then informative of the contested meaning of 44(i).  Citizenship by birth and by naturalisation differ, as it has already been put in arguments to your Honours, by a lack of volition in relation to the former and by an act of volition in relation to the latter.  That is, as has been put to your Honours, a naturalised citizen will always have known of his or her earlier foreign citizenship.  Sometimes, as with India as you have heard that will be removed by the naturalisation itself.  Sometimes, as you have heard, as with the United Kingdom, it will not be removed by the naturalisation itself.

Now, foreign citizenship can be imposed – that is, it can be obtained without being sought by the person in question.  By descent is the major example, of which your Honours have heard in that regard.  In the nature of things, that imposition can happen without it being known to that person.  And that lack of knowledge, again in the nature of things, can come about without any element of carelessness on his or her part.  Now, I hasten to say of course it might also be ignorance that does indicate either a startling lack of curiosity or carelessness.  But it can in the nature of things come about without any element of carelessness.

The next thing your Honours know – it was, after all, the British tradition until the Royal Commission thought it inconsistent with an appropriate degree of free will ‑ that citizenship, including foreign citizenship, can be indelible.  You also know that it may be such that it is unable to be relinquished except on unreasonable terms such as military service.  It can also, as you have heard, be subject to foreign governmental discretion whether or not to grant the relinquishment.

It is our submission, contrary, we submit, to those most squarely arrayed against us, that the Australian stipulation for those people who may be Australian parliamentary representatives, that made by section 34 and subsequent legislation in relation to it and section 44, must sensibly and purposively accommodate all those circumstances I have just noted.

In particular, the positive opening up of the, in practicable terms, widest pool of candidates by section 34, cannot be permitted to be arbitrarily, variously and uncontrollably narrowed by what would be the sectional disqualification of some natural‑born citizens by way of a foreign ancestor’s country of origin, being the criterion by which a foreign country imposes, or grants without it being sought, foreign citizenship on persons with such an ancestor. Of course, descent, as your Honours know, is a means of obtaining citizenship not limited to only one generation as would elicit the usual understanding of knowing where you parents had been born.

Now, such foreign laws may be understood for the purposes of the argument in this case by the labels that have been used ‑ “exorbitant” or “overreaching” – but in our submission such laws, when so understood for the purposes of such an argument, do not need to fit what, for example, Justice Brennan noted as being, to use the language there quoted, the international law sense of the foreign country’s laws of citizenship exceeding the jurisdiction to make such laws, quaint language that does not need further exposition now but which obviously is entirely an international law concept.  That is, of course, principally because it is an Australian interpretation of an Australian constitutional provision which is in question in this case.

Promulgating citizenship by reference to descent is not in itself excessive, is not in itself overreaching, but even if it is only for one generation, let alone for a biblical seven, it has the capacity of course to impose upon people who have no connection, and I mean no connection with another country, citizenship of that other country.  That is unless, of course, it is thought that ancestral connection, which may be numerous as to the number of countries involved after just a few generations for many Australians is itself considered to be the kind of connection which would prevent such a law from being overreaching.

In our submission, the concept of a law that so operates ought not to involve this Court in an invidious policy criticism of a foreign government’s policy decision about, for example, the status it should accord to members of what might be called its diaspora. Rather, the concept is one that is simply thrown up by a reading and application of our Constitution in 44(i).

The resolution, we submit, of the problem posed by cases where we represent Mr Joyce and Senator Nash will lie, however, in more than simply applying what has been called in this argument a rule of recognition, that is, in relation to the source of an understanding of foreign citizenship, et cetera.  It lies in more than simply applying such a rule for the purposes of identifying what foreign citizenship means when the concept is used in 44(i). 

A foreign regime which purported, according to one at least of the literal or hard‑line readings of 44(i) about which your Honours have heard – a foreign law which purported to deprive a natural‑born Australian of the right to stand, and therefore also to deprive all other Australians of the possible parliamentary services of that fellow citizen, should be held by this Court as not so operating by what is, we accept, a kind of rule of recognition. It is a negative one, but such laws cannot be permitted to gut the evident intention of section 34 in such an impolitic and invidious way because it would be selecting people according to, for example, ancestry, and therefore do not fit within the description of a regime which creates the kind of foreign citizenship to which section 44(i) attaches a disqualification.

GAGELER J:   Mr Walker, I am just not sure whether you are or are not, for the purpose of this submission, drawing a distinction between a natural‑born citizen and a naturalised citizen.

MR WALKER:   It is not of the essence of this argument to draw any such distinction and in that last reference I was referring to the cases of my clients, but my argument does not turn on any such distinction, although of course, equal treatment of a kind which we urge the Court would give to natural born and naturalised requires the differences to be observed and I have already submitted enough in‑chief and now in reply about the obvious difference between naturalised and natural born.

NETTLE J:   That latter part would be contrary to Sykes v Cleary.

MR WALKER:   I am so sorry, your Honour.

NETTLE J:   The latter part of that proposition would be contrary to Sykes v Cleary.

MR WALKER:   No, with respect, Sykes v Cleary does not, if I may put it this way, condescend to spell out all the consequences of the observations they made about the two naturalised gentlemen in question in that case.

NETTLE J:   I understand your submission to be that at least in the case in a natural‑born Australian, the right to stand should not be compromised or gutted by citizenship by descent.  That is your submission.

MR WALKER:   That is exactly so, yes, subject to qualifications or explanation to which I am about to come.

NETTLE J:   Justice Gageler asks you in that respect, do you draw a distinction between a natural‑born Australian and one who is foreign to begin with but becomes naturalised.

MR WALKER:   No, I do not; no, I do not.  My answer is no, that same proposition could be uttered for persons other than my clients; that is, persons who are naturalised.

NETTLE J:   With the same degree of force?

MR WALKER: Yes, it is critical that for 44(i) purposes foreign regimes which would purport to prevent naturalised Australians from ever standing would fall foul of the same negative rule of recognition. They cannot be permitted to gut section 34 or the laws made thereunder.

NETTLE J:   Do you mean any more than that then if they are unrenounceable that they cannot be allowed to?

MR WALKER:   That is the paradigm, yes.  That is the paradigm case.  It is not the only one.  I do mean more than unrenounceable.  I also mean that concept as expanded by reference to reasonable requirement or reasonable steps.  Of course, I am yet to come to the question of knowledge, your Honours appreciate.

Now, the evident purpose of section 34 and, more importantly in this case, the allied specific purpose of section 44(i), the latter, that is, against the split allegiances, are both best served, we submit, by the Court holding that the foreign status of a natural‑born Australian citizen – and I am only arguing for two of them, it will follow for naturalised as well – in such a case cannot be considered to operate as a section 44(i) stipulation of foreign citizenship.

But in those steps in our argument – and this is apropos a matter that arose yesterday – in those steps of our argument it is presupposing, as I tried to explain in answer to Justice Gageler’s and Justice Nettle’s questions just now, what might be called a willy‑nilly operation of the foreign law, that is, one by which the foreign citizenship exists regardless or even opposed to the express desire of the Australian citizen in question.

Now, if there are such persons, as our clients are, then in our submission, that foreign status, unsought as it is, would defeat the 44(i) purpose and it would certainly not advance section 34’s purpose if the notion of this negative rule of recognition would permit persons like my clients simply to ignore the operation of the foreign law as being, to use the label, exorbitant.

If the negative rule of recognition says well, a law of that kind cannot operate to interfere with our choice of our political representatives and therefore it does not have the 44(i) operation – if that was the end of the story then, in our submission, some very odd consequences would follow and it would involve more than a justified departure from the literal meaning of 44(i).

Now, in many cases, as it happens, exemplified by my clients’ cases, it is straightforward and efficacious for steps to be taken by such purpose to remove that foreign status, the unsought one, as here occurred by our clients’ effectual prompt renunciation of their New Zealand and United Kingdom citizenship respectively. 

We submit that 44(i), read appropriately, accommodating the matters that we have referred to, should be construed to require us to engage in that conduct in order to avoid disqualification.  Now, the reasonable steps jurisprudence, if that is not too grandiose an expression for what one finds in Sykes v Cleary, recognises the possibility that such a person’s best efforts may not avail and, in particular, it accommodates the cases of there being a foreign governmental discretion that might usually be expected to be exercised favourably but might not be so – a case therefore that, as we put in‑chief, calls for you at least to try.

Now, if it were not construed this way, if it was just a negative rule of recognition operation, what would follow surely would be this.  Such a law is identified ‑ and that is that imposes on somebody citizenship that they did not seek by, say, the four generation descent rule – what might be called the outright rule of recognition approach would, it can be seen, fairly rapidly produce a very plausible spectacle of parliamentarians being chosen and sitting, all of whom are well known, not only to themselves but to everyone else, to have foreign citizenship that they are ignoring and which is not operating as a disqualification because of the outright rule of recognition approach to 44(i).

Furthermore, those people would not be required, in order to remain qualified, to do anything at all to remove such citizenships, even if that could easily be done.  That is odd because, with a slightly different case of which Australia’s own law is an example, citizenship by descent upon application and only upon application would of course disqualify such people.

If the availability of foreign citizenship by descent could be taken advantage of – that is, turning from an unsought status to a sought status – no one could doubt that the purpose and meaning and text of 44(i) would thereupon disqualify such a person.  But if we do not add the requirement to take reasonable steps, which, of course, as your Honours appreciate, we argue obviously involves knowledge in order for the steps to be reasonable at all, unless you add the reasonable steps, then we will be left with people not disqualified who have foreign citizenship that they do not have to spurn except perhaps on the hustings and then, of course, not needing to have anything other than protestations of undivided loyalties rather than the rather harder black letter operation of 44(i). 

It would do nothing – that reading of 44(i) - to serve the accepted purpose of 44(i) because there would be split allegiances.  When you know of a foreign citizenship, whether you like it or not, for all the reasons that have been put both for and against us, you owe duties, even if you do not intend to take any of the benefits.  As has been observed, people can change their mind and if they do not have to take steps to renounce a foreign citizenship under what might be called an exorbitant regime, then at any time, including during their parliamentary service, they can take the benefit of their foreign citizenship, in our submission, thereby working the political debauchery of 44(i).  It would be completely rendered an empty vessel.

Now, there is no undesirable uncertainty in what we have put including the prerequisite knowledge in order that reasonable steps may be taken.  Knowledge, after all, is a very common fact to be proved in courts of law in order to bring about, one way or the other, drastic legal outcomes.

EDELMAN J:   Just before you move on to knowledge, everything you have said up to this point about split allegiances would mean, would it not, that the 1897 draft and earlier, would have that undesirable effect?

MR WALKER:   We put that in‑chief, I think.  I think my answer still is yes, however awkwardly that casts light upon what has been said about the history.  Your Honours may recall I described as a speculation that that effect – and it is an effect worked by the textual change – might explain, but I cannot say that that is anything other than a speculation.  There is absolutely no material to supply that rationalisation; there is a lot of material to the contrary that has been drawn to your attention.

In our submission, therefore, a requirement to take reasonable steps as soon as one knows of an imposed foreign citizenship prevents a most undesirable and anti‑textual and anti‑purposive distinction emerging in fact between natural born and naturalised Australians.  Under the interpretation we urge, all of us, equally, have to take reasonable steps to remove the foreign citizenship.  There is not some Alsatia whereby natural‑born Australians, having unsought foreign citizenship by descent under a regime considered exorbitant, may simply ignore that and retain it, however easy it may be to get rid of it. 

We respectfully submit that, under what I will call the outright rule of recognition approach, the naturalised citizen would obviously still have to ensure that his or her earlier citizenship, obviously known to them, is removed, on pain of disqualification unless, of course, it can never be removed.

But the natural born, under the interpretation we urge against, what I call the outright rule of recognition approach, the natural born would be able to enjoy dual citizenship while sitting in Parliament and that brings about, as I say, an absurd reversal of the evident intention of 44(i).

BELL J:   When you speak of enjoying dual citizenship in those circumstances and you posit a natural‑born Australian who acquires, let us say, Italian citizenship by virtue of their great great grandmother having been born in Calabria.

MR WALKER:   Yes.

BELL J:   In that circumstance, the danger that you identify is that because our rule of recognition would treat that Italian law as exorbitant, nonetheless, the person does have the benefit under Italian law of being a citizen, but the moment the person took any step to enjoy the benefit, they would encounter the difficulty under the first limb, surely.

MR WALKER:   Your Honour, my answer is in two parts.  The first is, probably yes.  I say probably yes because ‑ and I think this is a happy state of history ‑ we do not have a thick volume of precedents of people who have been held to be under any acknowledgment of allegiance, obedience or adherence to a foreign power, sitting in or standing for our Parliament, and it may be that something as ‑ what shall I say – vulgar as choosing the shorter queue at an immigration barrier, thereby taking a benefit of Italian citizenship at Rome airport.  It may be that that would produce an understandable resentment of the preference, parliamentary questions and eventually Court of Disputed Returns.  I do not know, but probably yes, and it would be, if I may say so, salutary.

The longer part of the answer is it would be, for all the reasons that lead me to describe that hypothetical episode as salutary, it would be most undesirable that it is not until something like that occurs and becomes sufficiently known in order to be justiciable in the Court of Disputed Returns that such a person – it is not until then that such a person would be disqualified, far better because the mischief is split allegiance and that is what might be called either a feeling of obligation, that is, you may resent it, or a feeling of duty - you may embrace it - that is not just something that fructifies when you seek a benefit.  It is there all the time and it is the being there that 44(i) is concerned with, is under, is a subject, et cetera. 

It is for those reasons, in our submission, that by far the more purposive interpretation is that, even if it is an unsought citizenship under an exorbitant law, once you know of it you have to get rid of it.  If you cannot get rid of it then you may have to run the gauntlet of whether it was impossible or whether what you did was reasonable in which matters that Justice Keane raised with my learned friends concerning the relevance, for example, of irrational belief would no doubt come to the fore, depending upon the degree to which the harsh light of day casts an adverse light on one’s efforts to get rid of that citizenship.  May it please the Court.

KIEFEL CJ:   Thank you, Mr Walker.  The Court reserves its decisions in these matters. 

It is hardly necessary to say that the Court is aware of the need to give its answers to these references with or without reasons as soon as possible.  As counsel and instructing solicitors would appreciate, it is not always possible for the Court to do so immediately.  No doubt, they will explain this to their clients. 

The Court adjourns to 10.15 am on Tuesday, 17 October.

AT 4.18 PM THE MATTER WAS ADJOURNED