Morrison Government seeks to reopen Love v Commonwealth of Australia in High Court seeking reversal of a February 2020 judgment which found Aboriginal Australians, even when born outside Commonwealth borders, are not aliens under the Constitution and cannot be deported

 

The Guardian, 14 October 2021: 

The federal government is seeking to overturn a landmark high court decision that deemed Aboriginal Australians cannot be aliens and cannot be deported. 

The Love and Thoms ruling in February 2020 ranks as the high court’s most significant constitutional decision in recent years, with the narrow four-to-three judgment prompting Coalition conservatives to publicly lobby for black-letter judges to be appointed. 

 Just a year and a half later, the commonwealth has revealed it wants the precedent to be overturned after a New Zealand man tried to fight deportation using the Love and Thoms precedent..... 

 In June 2020 Amanda Stoker, now the assistant attorney general, noted in a research paper that given the two retirements “there is a significant possibility that a reconstituted bench would reconsider the decision in the event of challenge”. In its submissions, the commonwealth revealed that the immigration minister, Alex Hawke, and home affairs minister, Karen Andrews, will seek leave “to the extent necessary, to argue that Love was wrongly decided”..... 

 [High Court Justice] Keane said it would be difficult for the high court to hear the case in 2021, given the number of cases already delayed by Covid. Keane agreed to remove the constitutional aspects of the case to the high court, giving interveners until 22 November to join the case, likely to be heard in the new year.

Read the full article here.

Something to think about

Credit: Wilcox

Sometime Australian Prime Minister & MP for Cook, Scott Morrison, is the protector of religious freedom? Don't make me laugh

This was Australia’s most recent Liberal prime minister quoted in The Sydney Morning Herald on 17 September 2018:

Prime Minister Scott Morrison will enact "preventative regulation and legislation" to shield freedom of religion from future enemies, giving his strongest hints to date about the government's intentions regarding "religious freedom" laws.

What a load of codswallop, manure, dung, heifers dust, cowpats, meadow cocktails – what ABSOLUTE BULLSH*T!

The Liberal Member for Cook Scott Morrison already knows that the Australian Constitution without qualification guarantees religious freedom in this country at federal level:

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 116

Commonwealth not to legislate in respect of religion

                   The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. [my yellow highlighting]

As the Australian Constitution is the highest source in the land on this issue, one can only suspect that:

a) Scott Morrison has never read the Commonwealth of Australia Constitution Act (as amended up to 1977); or

b) Scott Morrison is shamelessly pandering to his far-right, ideologically blind & bigoted supporter base, in the hope of being re-elected in 2019.

He appears to forget that Australia has also ratified a number of UN resolutions which directly or indirectly protect religious freedom and these have been upheld by the courts.

While he ignores the fact that Tasmania has had a religious freedom provision written into its state constitution since 1934 and Victoria, Queensland, Western Australia, the Northern Territory as well as the ACT have passed legislation prohibiting direct and indirect discrimination on the ground of religion. Only South Australia appears to have no legislation specifically covering religious freedom to date.

Morrison also forgets that whatever legislation he forces through this parliament, or whatever regulations he imposes, can all be undone in the first instance by subsequent federal parliaments and in the second instance by the minister of the day.

If he really wants to genuinely strengthen existing religious freedoms he would call a referendum to change the Australian Constitution.

Even a callow first-year-in-parliament politician knows that when state law is in conflict with federal law it is federal law which usually prevails and, if either is in conflict with the Constitution it will be the Constitution which prevails.

Having well and truly politicised his own faith Morrison may in fact be creating his own "future enemies" - he has all but guaranteed that someone will take his legislation and regulations to the High Court of Australia - where every word, phrase and punctuation mark will be studied closely.

Will Dutton face the High Court?

On 23 August 2018 sixty-nine members of the Turnbull Coalition Government voted down a Labor motion to refer the Minister for Home Affairs and MP for Dickson, Peter Dutton, to the Court of Disputed Returns.

Included in this sixty-nine was Peter Dutton himself and most of the forty-five MPs who a day later refused to support Dutton's second leadership bid, as well as some reported to now be keeping their options open concerning referral to the Court. 

It seems that another motion is being prepared and there is no guarantee that the vote would go Dutton's way in a Morrison Coalition Government. 

News.com.au, 15 September 2018:

Home Affairs Minister Peter Dutton has been dealt another legal blow as constitutional law expert Anne Twomey says her advice for his referral to the High Court is "stronger" than ever.

Professor Twomey told The Australian the Solicitor-General's opinion brings up information about funding for the child care centres owned by Mr Dutton's family trust which "raised considerably the risk of disqualification" under section 44 of the constitution.

This new assessment comes after Julie Bishop called for "clarity" over Mr Dutton's eligibility and backed former prime minister Malcolm Turnbull's calls for his referral.

Shadow Treasurer Chris Bowen told reporters in Sydney on Saturday that it was "very important" that Mr Dutton be referred.

"I see one of Australia's most eminent constitutional lawyers, Anne Twomey, suggesting today that the case for the reference to the High Court has been increased, is now stronger," he said.

Mr Bowen wouldn't say if and when Labor would make a second attempt to move a motion to refer Mr Dutton to the High Court, only that "we'll keep our options open."

A Labor motion for a referral was defeated by just one vote on August 23.

Ms Bishop hasn't ruled out crossing the floor to support the motion, saying if a vote was called: "I will make up my mind at that time".

Crossbenchers Cathy McGowan and Rebekha Sharkie told The Conversation on Wednesday that they would vote for a referral.

Ms McGowan said, "it should be done quickly and efficiently and effectively and sorted out."

"I think it's taking up a huge amount of space in parliament at the moment," she said."

According to The Saturday Paper, Mr Dutton only absented from one cabinet discussion on child care, despite having regularly declared his family investments.

A spokesperson for Mr Dutton said: "The minister has complied with the Statement of Ministerial Standards and the Cabinet Handbook. Suggestions to the contrary are false".

News.com.au, 15 September 2018:

The Greens are preparing a vote in parliament to check Home Affairs minister's eligibility over questions about his family financial interest in two childcare centres.

A similar motion failed by just one vote on Malcolm Turnbull's second last day as prime minister.

"I have taken advice in relation to my position, which put the question beyond doubt," Mr Dutton told parliament on Thursday.

Section 44 of the constitution disqualifies anyone who has a "direct or indirect pecuniary interest" in any agreement with the Commonwealth.

Childcare centres now get direct funding from the Commonwealth, which is then passed through to parents.

"Every day he continues on in this place there's going to be a huge cloud over him and over the government," Greens leader Richard Di Natale told reporters on Friday.

Greens MP Adam Bandt has been speaking to Liberal MPs about voting to refer Mr Dutton to the High Court, and the Greens believe support is rising.....

At the height of the Liberal leadership crisis, Solicitor General Stephen Donaghue advised he could not categorically determine Mr Dutton's status and only the High Court could.

However Mr Donaghue found on balance Mr Dutton was "not incapable" of sitting as an MP.....

A News Corp report on Friday claimed two government MPs are considering voting with Labor in forcing Mr Dutton to the High Court.

The report understands the rogue MPs are planning to use the threat of crossing the floor to force Mr Morrison to refer Mr Dutton to the High Court.

Prime Minister Scott Morrison says he won't act on Mr Turnbull's advice.

He's also checking whether Mr Dutton stepped out of cabinet when the childcare funding changes were discussed.

Is the war about which political party showed the most disrespect towards the Australian Constitution and Parliament about to spill more blood?

Newcastle Herald, 18 May 2018:

The citizenship crisis could claim more government MPs after Attorney-General Christian Porter said they had to prove their possible dual citizenships were renounced.

Labor says this puts Treasurer Scott Morrison, Deputy Prime Minister Michael McCormack, and 12 other coalition MPs in danger.

Mr Morrison's maternal grandfather was born in New Zealand, while Mr McCormack's was born in Greece in 1896.

The citizenship test in the constitution has already forced more than a dozen MPs to quit because they were citizens of foreign countries at the election.

"The requirement is that you have to show that you've completed the renunciation process," Mr Porter told reporters in Perth on Friday.

"You need to evidence not merely the start of the renunciation process but its completion.

"So when people haven't done that, no matter who they are, they need to do so."

Shadow attorney-general Mark Dreyfus says it sets a new benchmark that goes too far.

"Mr Porter has created a test that many of his own MPs fail. This is a very dangerous path for the government to go down," Mr Dreyfus said.

He says 14 coalition MPs have not shown evidence of completed renunciations, despite having parents or grandparents born overseas.

Mr Porter had earlier attacked Labor MP Emma Husar because she had not provided documented proof she had renounced Polish citizenship, which she was entitled to through her paternal grandparents.

Ms Husar says she wrote to the Polish consulate to renounce any entitlement 16 days before her nomination for federal parliament in 2016.

But Mr Porter says Ms Husar had not put on the citizenship register any documented evidence her renouncement was accepted.

Ms Husar told The Australian on Friday she had nothing more to add.

"You have to have something to renounce. You have to have something in order to give it back. I am not a dual citizen," she said.

Under new rules set to be introduced before upcoming by-elections, candidates have to give their citizenship information to the Australian Electoral Commission.

It will then be made public, but the AEC won't be given the power to adjudicate the eligibility of candidates.

News.com.au, 18 May 2018:

NEW TEST FOR MP CITIZENSHIP?

* If renunciations are required, as the Attorney-General suggests, then there are eligibility doubts over more federal MPs.

COALITION

* Scott Morrison: Maternal grandfather born in NZ, no renunciation confirmation provided.

* Michael McCormack: Maternal grandfather born in Greece. Greek Embassy does not have him registered on Greek municipal records, a requirement of being a citizen.

* Zed Seselja: Both parents, all grandparents born overseas, no renunciation confirmation provided. Croatian embassy says he is not a citizen.

* Julia Banks: Greek father and four Greek grandparents. Greek Embassy does not have her registered on Greek municipal records, a requirement of being a citizen.

* Alex Hawke: Mother and maternal grandparents were born in Greece. Greek embassy does not have him registered on Greek municipal records, a requirement of being a citizen.

* Craig Kelly: South African maternal grandfather, no renunciation confirmation provided.

* Nola Marino: No documents proving she does not get Italian citizenship from her husband. Father born in the USA, maternal grandfather born in Sweden, paternal grandparents born in Italy.

* Llew O'Brien: Paternal grandfather born in Canada, no renunciation confirmation provided.

* Ken O'Dowd: Paternal grandmother born in the Netherlands, no renunciation confirmation provided.

* Tony Pasin: Italian mother and father, grandparents on both sides, document says he is not eligible to apply for Italian citizenship, but not whether he is a citizen.

* Angus Taylor: Maternal grandparents born in NZ, no renunciation confirmation provided.

* Alan Tudge - Maternal grandfather born in Canada, no renunciation confirmation provided.

* Tim Wilson: Maternal grandfather born in India, no renunciation confirmation provided.

LABOR

* Emma Husar: Polish grandparents, checked that she did not have citizenship but renounced it anyway, no renunciation confirmation provided.

* Mark Dreyfus: Jewish father and paternal grandparents fled Nazi Germany and stripped of their citizenship. No renunciation confirmation provided.

* Michael Danby: Jewish father and paternal grandparents were born in Germany. Father was stripped of citizenship when he arrived in Australia. No renunciation confirmation provided.

The problem of dual citizenship for Australian federal politicians is not a new one so why has this current batch made such a hash of the solution?

Australian Electoral Commission nomination form advice re Sec 44 of the Australian Constitution

This is former Liberal MP Alex Somlyay - elected 1990 and retired 2013 - as reported in the Sunshine Coast Daily on 19 July 2017:

Alex Somlyay, who represented Fairfax for 23 years from 1990 to 2013, is the son of Hungarian refugees who arrived in Australia after World War Two as stateless persons.

Mr Somlyay says Ms Waters' predicament in an unintended consequence that needed to be fixed…..

Mr Somlyay is particularly attuned to Mr Waters' forced resignation because of events that played out which could have threatened his own parliamentary career.

His parents became Australian citizens and Mr Somlyay was born in Australia.

But the fall of the Iron Curtin saw Hungary again become an independent country which immediately gave citizenship to the diaspora that fled as refugees and their children.

"I was already in Parliament,” he said. "I went to see the Hungarian ambassador and wrote a letter relinquishing any Hungarian rights.”

With the holding of dual citizenship being a specific bar to nominating as a candidate at a federal general election or by-election the answer for such dual citizens has always been straightforward even in complex situations.

Before nominating check your citizenship status and if by virtue of having a parent, grandparent or great-grandparent who was born overseas you find you either hold foreign citizenship by descent or may be entitled to such citizenship then take the appropriate steps to formally renounce this citizenship.

Even in the late 1800s Australia was a multicultural society with people holding foreign citizenship permanently migrating here from Europe, Asia, Africa, the Americas and Oceania.

The framers of the Australian Constitution were well aware of this fact and set out one simple rule disqualifying any person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power from sitting as a representative of the people in the federal parliament. 

The only exception when the Consitution was enacted was for persons born in the United Kingdom (or in certain cases its colonies) as it was not then considered a foreign power.

The right to nominate as a candidate in an election is now reserved for persons of good character who hold only Australian citizenship - whether by birth, descent or naturalisation - and hold no office of profit under the Crown.

The High Court of Australia so ruled in Sykes v Cleary in 1992, in Free v Kelly & Australian Electoral Commission in 1996 and again in Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash;Re Xenophon in October 2017. 

Only an overweening sense of self-importance and an unswerving belief in their own entitlement can explain why in 2017 there are so many politicians with questions against their names when it comes to a right to be sitting in the Australian Parliament.

And only a steely determination not to be fully held to account sees the Turnbull Government suggesting that a declaration to the Australian Parliament by already elected politicians somehow trumps any false or misleading written declaration they may have made as part of their nomination as candidates.

RECOMMENDED READING

                

8 November 2017, YaThink? Let’s stop pretending. We want this Government to burn at the stake!

STATE OF PLAY

Growing list of federal parliamentarians found to be ineligle to stand:

1. Greens Senator for Western Australia Scott Ludlum – first elected 2007, resigned from parliament admitting dual citizenship 14.7.2017, High Court ruled ineligible due to dual citizenship 27.10.17

2. Greens Senator for Queensland Larissa Joy Waters – first elected 2010, resigned from parliament admitting dual citizenship 18.7.17, High Court ruled ineligible due to dual citizenship 27.10.17

3. Liberal MP for New England Barnaby Thomas Gerard Joyce – first elected 2004, refused to resign from parliament, High Court ruled ineligible due to dual citizenship 27.10.27

4. Liberal Senator for NSW Fiona Joy Nash – first elected 2004, refused to resign from parliament, High Court ruled ineligible due to dual citizenship 27.10.27

5. One Nation Senator Malcolm Ieuen Roberts – first elected 2016, refused to resign from parliament, High Court ruled ineligible due to dual citizenship 27.10.17

6. Liberal Senator for Tasmania Stephen Shane Parry – first elected 2004, resigned from parliament admitting dual citizenship on or about 2.11.17

7. Liberal MP for Bennelong John Gilbert Alexander – first elected 2010, resigned from parliament (refused to publicly confirm dual citizenship) on or about 11.11.2017

8. Jacqui Lambie Network Senator for Tasmania Jacqui Lambie – first elected 2013, resigned from parliament admitting dual citizenship 14.11.17

9. Liberal senator-elect Hollie Hughes – found to be eligibility by the High Court on 15 November 2017 due to the fact that she holda an office of profit under the Crown

The growing list of federal parliamentarians found to have been ineligible to stand due to breaches of Sec 44 of the Australian Constitution

1. Greens Senator for Western Australia Scott Ludlum – first elected 2007, resigned from parliament admitting dual citizenship 14.7.2017, High Court ruled ineligible due to dual citizenship 27.10.17

2. Greens Senator for Queensland Larissa Joy Waters – first elected 2010, resigned from parliament admitting dual citizenship 18.7.17, High Court ruled ineligible due to dual citizenship 27.10.17

3. Liberal MP for New England Barnaby Thomas Gerard Joyce – first elected 2004, refused to resign from parliament, High Court ruled ineligible due to dual citizenship 27.10.27

4. Liberal Senator for NSW Fiona Joy Nash – first elected 2004, refused to resign from parliament, High Court ruled ineligible due to dual citizenship 27.10.27

5. One Nation Senator Malcolm Ieuen Roberts – first elected 2016, refused to resign from parliament, High Court ruled ineligible due to dual citizenship 27.10.17

6. Liberal Senator for Tasmania Stephen Shane Parry – first elected 2004, resigned from parliament admitting dual citizenship on or about 2.11.17

7. Liberal MP for Bennelong John Gilbert Alexander – first elected 2010, resigned from parliament (refused to publicly confirm dual citizenship) on or about 11.11.2017

* Liberal senator-elect Hollie Hughes – eligibility being assessed by High Court in November 2017 due to question concerning holding an office of profit under the Crown

Australian Attorney-General, Liberal Senator for Queensland and faux Queen's Counsel fails to convince there is a need to change Sec 44 of the Australian Constitution

Commonwealth of Australia Coat of Arms 1912

Now that the High Court of Australia has removed the Leader and Deputy Leader of Coalition partner, the National Party of Australia, it seems the next move by the Liberal Party is to change the rules governing federal elections.

This was Australian Attorney-General, Liberal Senator for Queensland and faux Queen’s Counsel, George Brandis, on 29 October 2017 according to Sky News:

Mr Brandis said while the government accepted the High Court ruling, Section 44 in its current form on citizenship 'is not suitable for a multicultural democracy'.

'Australia is one of the most successful multicultural society in the world…..It is an unusual situation that there should be a provision of our constitution... where there are doubts about the capacity or eligibility of potential millions of Australians to stand for parliament.'

In 1891 the first published headcount of the Australian population occurred. There were 3.17 million people resident in the country and of these 31.99 per cent were born overseas in the United Kingdom, Europe, Asia, Africa, North and South America, Polynesia and New Zealand.

In 1901 the Commonwealth of Australia Constitution which includes Section 44 (disqualification from nominating as a candidate in a federal election/by-election) was adopted and, and the censuses of Australian states were undertaken that same year.

On 31 March 1901 the total combined population of all Australian states was recorded as 3.77 million people with 22.24 per cent of this population identified as being born overseas in the United Kingdom, Europe, Asia, Other Countries and New Zealand.

So right at the beginning of Federation this nation could rightly be considered a “multicultural democracy”.

However, one of the first pieces of legislation passed by the new federal parliament 1901 was the Immigration Restriction Act which was the basis of what became known as the “White Australia Policy”.

Ten years later in 1911 when another national census occurred 4.45 million people were recorded as resident within Australia. Despite immigration restrictions Australia was still maintaining a strong multicultural presence with 17.68 per cent of the population having been born overseas in the United Kingdom, Europe, Asia, Africa, North and South America, Polynesia and New Zealand.

In 1958 the "White Australia Policy" was finally dismantled for good and seventeen years after that the Racial Discrimination Act was pased.

At the 2016 national census there were 23.40 million people recorded as resident within Australia and 28.5 per cent of this population were born overseas in - you guessed it – Europe, Asia, Africa, North and South America, Polynesia (now recorded as Oceania) and New Zealand.

It seems that – with a few hiccups along the way such as restricted immigration, two world wars and the Great Depression – cultural and ethnic diversity by way of immigration has always been a significant part of post-colonial Australian society.

If Senator Brandis wants to convince voters that the Constitution should be changed or additional legislation created, which would allow wannabe politicians free rein to decide to ignore holding dual citizenship and determine for themselves what they can declare or conceal from the electorate on their nomination forms, he will have to think of a better argument than the one he put forward to Sky News.

Another Liberal federal politician bites the dust - months after he knew he was in the wrong

By mid-July 2017 Green senators Scott Ludlam and Larissa Waters resigned because they discovered they held dual citizenship and were therefore elected unlawfully to the Australian Parliament. More politicians followed, admitted their standing was in doubt because of dual citizenship.

On 27 October 2017 the High Court of Australia upheld the wording and intent of Sec 44 of the Australian Constitution concerning the ineligibility of dual citizens to nominate for election to the federal parliament.

Former police officer and Liberal Senator for Tasmania Stephen Shane Parry knew he was in trouble from the beginning of this saga in July - after all he was aware his father William Parry migrated from the U.K. in 1951 and lived in Australia for the next sixty-four years until his death.

Yet Parry chose to wait until 31 October 2017 to own up to having sat in parliament unlawfully for the last twelve years and then resign.

ABC News, 1 November 2017:

Liberal senator Stephen Parry has confirmed he is a British citizen and will now resign from the Parliament.

Yesterday, Senator Parry revealed he had doubts about his citizenship status because his father was born in the UK, and emigrated to Australia in the 1950s.

He has now released a statement saying the British Home Office confirmed he is a citizen by virtue of his father's birthplace.

In a letter to his Senate colleagues, he wrote it was "with a heavy heart" he had to inform them he would be submitting his resignation as Senate President and as a Tasmanian senator to the Governor-General tomorrow.

Once again the Liberal Party is not covering itself in glory.

UPDATE

The Age, 2 November 2017:

Communications Minister Mitch Fifield knew for weeks that Stephen Parry could be a dual UK-Australian citizen, but said nothing after the then Senate president confessed to him.

Mr Parry also confided in an unnamed member of the outer ministry about his citizenship concerns. He revealed the concerns after former cabinet minister Fiona Nash referred herself to the High Court.

Fairfax Media has been told Mr Parry was advised not to go public ……

High Court of Australia sitting as the Court of Disputed Returns ends federal parliamentarians eligibility to stand hearings and considers its judgment

“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.”  [Chief Justice of Australia Susan Mary Kiefel AC, 12 October 2017]

On 10-12 October 2017 the full High Court of Australia sitting as the Court of Disputed Returns heard arguments as to why five members and two former members of the Parliament of Australia should or shouldn’t be found to have been ineligible to stand for election prior to the 2016 general election and sit as an elected members thereafter.

While the country waits on the resolution of this matter, here are links to relevant documents and transcripts.

High Court of Australia Justices

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

Notices

Reference by the Senate to the Court of Disputed Returns - Senator Nick Xenophon

Reference by the Senate to the Court of Disputed Returns - Senator Fiona Nash
Reference by the Senate to the Court of Disputed Returns - Senator Matthew Canavan

Reference by the Senate to the Court of Disputed Returns - Mr Scott Ludlam

Reference by the Senate to the Court of Disputed Returns - Ms Larissa Waters

Reference by the Senate to the Court of Disputed Returns - Senator Malcolm Roberts

Reference by the House of Representatives to the Court of Disputed Returns - The Hon Barnaby Joyce MP

High Court of Australia Transcripts

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce [2017] HCATrans 170 (24 August 2017)

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce [2017] HCATrans 171 (24 August 2017

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon [2017] HCATrans 199 (10 October 2017)

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon [2017] HCATrans 200 (11 October 2017)

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon [2017] HCATrans 201 (12 October 2017)

Self-styled “bounty hunter” issues penalty writs

David Barrow at http://andrewboltparty.com:

On 27 September 2017, I sued 6 current and former Senators and Mr Barnaby Joyce MP under the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth).

This provides a bounty for citizens ‘hunting down’ any Parliamentarian who has sat when disqualified.

$200 is paid for proving the Parliamentarian is caught out during the 12 months before being served with a lawsuit; and $200 is paid for every subsequent day on which he or she sat.

Any penalties I receive and personal tax benefit, I will donate to the The Fred Hollows Foundation…..

Fate of politicians referred to the High Court over the citizenship saga will not be known until at least mid-October.

It appears that on Day One before the High Court of Australia there is to be no united defence by those sitting politicians defending their election as members of parliament and stories appear to be changing.

ABC News, 24 August 2017:

The fate of politicians referred to the High Court over the citizenship saga will not be known until at least mid-October.

The court held its first hearings on the cases in Brisbane today, and Chief Justice Susan Kiefel has ordered the matter be heard in Canberra on October 10-12.

It is not clear yet how long it could take the court to decide on the case and announce its decision on the five cases currently before it — those of Deputy Prime Minister Barnaby Joyce, former Nationals Minister Matt Canavan, One Nation's Malcolm Roberts and former Greens senators Larissa Waters and Scott Ludlam.

Solicitor-general Stephen Donaghue QC, acting for the Commonwealth, had urged the hearings be scheduled in mid-September to ease any concerns about the validity of decisions made by the 45th Parliament.

In another twist, Mr Joyce's political nemesis, Tony Windsor, has been given permission to join the citizenship challenge in the High Court.

Mr Windsor will argue Mr Joyce has breached the constitution, as he was a dual citizen of New Zealand.

Mr Windsor's lawyers, appearing by videolink from Melbourne, also argued for the right to cross-examine Mr Joyce if they needed it for their case.

Solicitor-general Stephen Donaghue QC, acting for the Commonwealth, urged the court to hear the matters by mid-September.

Chief Justice Kiefel said she understood the "unusual circumstances" of the challenges, and the "high level of urgency", given it would have an impact on the current make-up of the Parliament.

However, she raised concerns whether the matters could be dealt with that quickly, particularly when Deputy Nationals leader Fiona Nash and South Australian senator Nick Xenophon's cases were awaiting formal referral to the court.

Chief Justice Kiefel asked the solicitor-general whether there was a "real practical difficulty in terms of governance" if the court waited until October to hear the cases, to which Mr Donaghue replied there was not.

Lawyers for Senator Canavan also said the Commonwealth had "underestimated the complexity of their case", given the nature of his Italian citizenship.

They also suggested the highly publicised story he had presented about his mother signing him up for Italian citizenship was "irrelevant", rather arguing that there had been retrospective changes to Italian laws that had led to the strife.

Mr Donaghue said the cases of Senator Canavan, Mr Joyce and Ms Waters were different to those of Senator Roberts and Mr Ludlam.

He argued Senator Canavan, Mr Joyce and Ms Waters had no knowledge they could be considered dual citizens under foreign law.

The solicitor-general but suggested Senator Roberts and Mr Ludlam knew or should have known.

Lawyers for Senator Roberts criticised the initial timing of the full hearings, suggested by the Commonwealth.

They also took issue with the Attorney-General's offer to get the same British QC enlisted to give expert evidence on other citizenship cases to also draft a report about Senator Roberts' status.

The argument was that they should have the chance to brief the legal expert themselves, and have the opportunity to find their own experts if they did not agree. [my highlighting]

The Australian, 24 August 2017:

Barrister Robert Newlinds SC, for India-born Senator Roberts, said his client did not concede to being a citizen of any country other than Australia.

However, Mr Newlinds said Senator Roberts made contact with the British Home Office before the election, but received no response. He then sent another email before the election and “renounced” any foreign citizenship.

However, Senator Roberts did not receive any acknowledgement from the Home Office until after the election, the court has heard, when they sent him a renunciation form to fill out.

He later was told by the Home Office that his renunciation of British citizenship had been accepted – but Mr Newlinds said it was not clear whether that acceptance was in relation to the pre-election email or the post-election form……

Attorney-General George Brandis says the government is “grateful” the High Court agreed to hear all eligibility cases in the one hearing.

Senator Brandis said the hearing, to be held in the first fortnight of October, was scheduled as early as possible, despite the government asking for an earlier date on the 13th and 14th of September.

“We are very grateful that the High Court has listed the matter at the next practicable opportunity, we were pressing the court to hear it even earlier in September but it just wasn’t practicably possible particularly since the matter was going to be set down for three days,” Senator Brandis said.

“By the standard of listing matters in the High Court it is a very swift hearing, it gives all the parties a full opportunity to be ready, to present both written submissions and of course oral argument….. [my highlighting]

Matters for judgment by the High Court sitting as the Court of Disputed Returns:

NOTICE - Reference by the Senate to the Court of Disputed Returns - Senator Matthew Canavan

NOTICE - Reference by the Senate to the Court of Disputed Returns - Mr Scott Ludlam

NOTICE - Reference by the Senate to the Court of Disputed Returns - Ms Larissa Waters

NOTICE - Reference by the Senate to the Court of Disputed Returns - Senator Malcolm Roberts 

NOTICE - Reference by the House of Representatives to the Court of Disputed Returns - The Hon Barnaby Joyce MP