Can Malcolm Roberts and Barnaby Joyce survive High Court referral? Probably!

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Malcolm Roberts (Image via @Mitehouse)

Based on legal precedents, it is likely Malcolm Roberts and Barnaby Joyce will survive the dual citizenship challenge, writes Krish Na.

WITH Pauline Hanson's One Nation referring Senator Malcolm Roberts’ dual citizenship issue to the High Court, there is a general anticipation that he will be disqualified from the Senate.

Based on the timeline revealed by Roberts himself, it appears that he was a British citizen on the date of his nomination and, on the face of it, this should be sufficient to expel him from Senate.

However, Roberts continues to express confidence that his British citizenship is not an issue and his seat is secure. Does he still have a reason to be confident? Two concepts — "connection" and "reasonable steps", as established by Australian and international legal precedents, offer him a fighting chance.

1. Connection to Britain

A current or past connection to a foreign power beyond citizenship is important to establish allegiance.

The guiding principle for "connection" was laid out by Lord Cross in Oppenheimer v Cattermole (1976):

‘If a foreign country purported to confer the benefit of its protection on and to exact a duty of allegiance from persons who had no connexion or only a very slender connexion with it, our courts would be entitled to pay no regard to such legislation …’

In an extreme example, North Korea can decide to confer citizenship to all Australian MPs unilaterally, making them ineligible and throwing our democracy in chaos. This makes "connection", such as birth and/or residence, an important principle, as examined in 'Sykes v Cleary (1992)'.

In the cases of former Senators Larissa Waters and Scott Ludlam, the foreign connection is easily established. Both were born and as children lived in the countries that conferred citizenship on them.

Roberts was neither born in the UK nor took up long-term residence there at any time. He was born in India in 1955 when it was no longer a colony, inferring only a slender connection through ancestry to the UK. Senator Matt Canavan and Deputy Prime Minister Barnaby Joyce are also likely to pursue a similar line of argument.

In addition to birth and residence, passports can also be used to establish connections, as the High Court did in 'Sue v Hill (1999)'.

A claim that Roberts travelled on a UK passport in 1956 has been doing rounds on Twitter, later reported by Buzzfeed. If true, the "slender connection" argument falls apart. However, this passenger log appears to be erroneous. It shows that Roberts’ British father travelled to the UK on an Australian passport in 1956, despite becoming an Australian citizen only in 1974, as reported by Buzzfeed. The logical conclusion is the passenger log simply mixed up the passport details of Roberts’ mother and father. Another shipping log of the same year where correct passport details appear, confirms this.

On August 8, Roberts revealed to Senator Derryn Hinch that he travelled on his mother’s Australian passport during those trips.

2. Reasonable steps

Unlike Canavan and Joyce, who became aware of their dual citizenship only recently, Roberts always knew he was a UK citizen until he turned 19. He would still need to prove that he took steps to renounce his British citizenship.

In the Cleary case, the High Court said that anyone who has taken "all reasonable steps" in that direction is not disqualified under Section 44 (i) of the Constitution Act, even if the actual renunciation hasn’t taken place. There is an argument that since Roberts did not file an "Application to give up (renounce) British citizenship: form RN", as required by the British law, he has not taken "all reasonable steps". This strict interpretation of precedent could make him ineligible for the Senate.

However, the High Court also said that what amounts to reasonable steps depends upon the circumstances of the particular case. The Form RN requires Roberts to acknowledge explicitly that he was a UK citizen and produce proof to that effect, neither of which he was ready to do. His statement that he was "choosing to believe" he was never British reveals his thinking in this regard. Roberts will argue that his email renunciation is "reasonable" in such circumstances, given that he stated his intentions clearly and, more importantly, it achieved the desired effect. By accepting his unconventional application and registering his renunciation in December 2016, the British Government lent legitimacy to his steps.

Support to this comes from the High Court itself in the Cleary case, where it says s44(i)

‘... could scarcely have been intended to disqualify an Australian citizen for election to Parliament on account of his or her continuing to possess a foreign nationality, notwithstanding that he or she had taken reasonable steps to renounce that nationality.’

It is also possible that the Court takes a strict view and declares Roberts ineligible because he did not follow "due process". However, past judgements offer Roberts a fighting chance to survive. In many ways, this case highlights the frustrations felt by experts for decades about the effect of Section 44 (i) technicalities on democracy.

My own theory that a legal scenario exists in which Malcolm Roberts continues to be a "presumed citizen" of India is an example of how complicated international citizenship laws can be. To support that theory, Roberts’ immigration documents show that he was still a "child" under Australian law when he became a citizen and did not "voluntarily" become an Australian citizen.

In the Cleary case, the dissenting judges felt that oath of citizenship or office can be considered a renunciation. Roberts did not need to take a citizenship oath in 1974 because he became a citizen under the Section 11C of the Citizenship Act (repealed). If we apply the "connection" and "reasonable steps" principles above, Roberts had a strong connection to India too — he was born there, lived there for seven years, and maintained the connection through business travels and Vipassana Meditation practice. He is yet to produce evidence that he took any steps to renounce his citizenship and, interestingly, the Indian High Commission in Canberra has also been mum on the issue.

If you look at it this way, there are more chances of him being in trouble for his Indian citizenship than his British citizenship. To avoid legal and technical quagmires like this, Section 44 needs urgent reform, particularly if it puts democratically elected governments in jeopardy.

You can follow Krish Na on Twitter at @indigokking.

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