Re Roberts

The High Court of Australia, sitting as the Court of Disputed Returns, considered questions referred to it concerning Senator Malcolm Roberts. The proceedings involved Mr S.B. Lloyd, SC, appearing as amicus curiae, Mr C.R.C. Newlinds, SC, appearing for Senator Roberts, and Mr M.P. Costello, appearing for the Commonwealth Attorney-General.

The central legal issues before the Court revolved around the admissibility and relevance of various pieces of evidence. Specifically, the Court had to determine whether an affidavit from an Indian law expert regarding Senator Roberts' potential Indian citizenship by birth was relevant, given Senator Roberts' assertion of never having held citizenship other than Australian. Further, the Court considered the relevance of an affidavit detailing inquiries made about the validity and activity of email addresses used by Senator Roberts in his attempts to renounce British citizenship, and whether this evidence was reliable for establishing primary facts.

The Court's reasoning focused on the nature of its role as a finder of primary facts, rather than making mixed findings of fact and law. The amicus curiae argued for the reception of the Indian law expert's report, contending it was relevant to assessing the accuracy of Senator Roberts' statements about his citizenship status. While initially finding its relevance elusive, the Court ultimately received the report. Regarding the evidence concerning the email addresses, the amicus argued its reliability in demonstrating that Senator Roberts did not send his renunciation inquiries to active or correct British government addresses, which was presented as relevant to the reasonableness of his steps. The Court indicated it would receive this evidence to make findings of primary fact.

The Court indicated its intention to make findings of primary fact regarding the matters asserted, rather than entering into considerations of reasonableness which involve mixed questions of fact and law. The amicus curiae agreed with this approach, stating their submissions would seek to identify facts for the Court to find, allowing the Full Court to then determine reasonableness.