The high court has ruled One Nation’s Malcolm Roberts was a dual British and Australian citizen for six months after he was elected.
Justice Patrick Keane on Friday afternoon ruled Roberts, who believed he had renounced his British citizenship before last year’s election, was a citizen of the UK at the time of his nomination.
He found that “arguably” the only step the Queensland senator took to renounce dual citizenship was sending a 6 June email that experts agreed “could not be effective as a renunciation” because it was not sent to the UK Home Office.
Born to an Australian mother and Welsh father in India in 1955, the Queensland senator is one of seven parliamentarians to have their future considered by the high court, because the constitution bans dual citizens from sitting in parliament.
Keane in his judgment on “issues of fact”, published on Friday, found that Roberts was a UK citizen until 5 December and that Roberts “knew that there was at least a real and substantial prospect” that he remained a UK citizen when nominating for the Senate.
Regarding Roberts’ belief that he was an Australian citizen only,
Keane said: “[Roberts], as tenaciously as he contended for this highly
subjective (and objectively untenable) view of things, was unable to
maintain this position.”
“Senator Roberts knew that he did not become an Australian citizen until May 1974” when he was naturalised, Keane wrote. Roberts could have sought “professional advice” or called the UK High Commission in Canberra to clarify his status before nominating but “did neither of these things”.
The judge further found his 6 June email inquiry was not effective because it did not contain a “declaration of truth” or was accompanied by the required fee.
He said the senator’s claim to be Australian because he felt he was one by identification “confuses notions of how a person sees oneself with an understanding of how one’s national community sees an individual who claims to be legally entitled to be accepted as a member of that community”.
“Senator Roberts could have made effective inquiries of the British High Commission by which he would have been informed of the steps necessary to renounce his foreign citizenship. He could have obtained and completed a form of renunciation declaration, such as Form RN, and returned it with the required fee to the Home Office, as he belatedly did.”
Roberts’ fate as a senator may now hinge on whether he took “reasonable steps” to renounce dual citizenship, despite failing to do so. His eligibility in federal parliament is to be decided in a hearing before the full bench of the court in Canberra from 10 October.
Roberts’ barrister, Robert Newlinds, accepted that Roberts remained a British citizen when he lodged his Senate nomination form on 8 June last year.
Newlinds argued Roberts could have done more to confirm and act on his status, but that he made an effort and acted in good faith. However, Roberts said he was blindsided by his lawyer’s concession, and insisted he still had not “seen the evidence” this was true. That was despite receiving confirmation of his renunciation from the UK Home Office months after his election, after completing official paperwork that his wife had chased up.
The court heard expert evidence that Roberts, before becoming an Australian citizen in 1974, had Indian citizenship by birth and British citizenship by descent.
Roberts said he filled out his sworn application to become a One Nation candidate on 29 April with “absolute conviction” he was Australian – that he had always identified as one.
He declared he was eligible to run, in line with the constitution, which prohibits dual citizens.
Roberts told the court that days later, reflecting on his Indian birthplace and Welsh father, he decided to “double-check”.
On 1 May, he tried to email the UK consulate in Brisbane with a heading, “Am I still a British citizen?”, sent to two addresses – bcabris2@britaus.net and bcabris1@britaus.net. Roberts said he found these on the internet but the court heard they were defunct.
He wrote: “If I am still a UK citizen I need to renounce it for compliance with electoral legislation in Australia.”
“Please advise whether or not I am still a British citizen? If I am a British citizen, how do I renounce it?”
On 3 June, Roberts filled out his Senate nomination form, declaring he was eligible, despite admitting in court he thought it a possibility he remained a British or Indian citizen.
Keane said it was “convenient to note” that the nomination form copy in Roberts’ affidavit had left out the page which spelt out in full the requirements of section 44 of the constitution and advice for people in doubt about their eligibility.
After no response to his first email, Roberts emailed those addresses again on 6 June, and another apparently flawed one, australia.enquiries@fco.gov.ukSydney.
This said: “As there was no reply to my email last month (see below) and although I am confident I am not a British citizen, with this email I renounce any British citizenship should it exist.”
Roberts said this was “effective immediately”.
One Nation, whom Roberts said did no vetting of him that he was aware of, lodged his nomination form with the Australian Electoral Commission in Brisbane two days later.
Roberts said his wife became concerned about his citizenship status around August 2016, and one of them wrote again to the Home Office on 10 September again seeking to “to clarify my citizenship/subject/national status”.
After a response, Roberts or his wife replied on 27 September: “I will now complete administrative processes linked in your email and thereby more formally renounce any and all claims to British nationality and allegiance.”
He completed the renunciation form and his wife mailed it with the required £272 fee on 2 November.
Keane found that the Home Office reply stated 5 December was the date Roberts ceased to be a UK citizen.
One Nation leader Pauline Hanson had referred to the media’s pursuit of Roberts’s citizenship status as a “witch hunt” and posted on her Facebook page how the controversy was helping to lift Roberts’ public profile.
In a post on July 26, Hanson said she could “hand on heart assure everyone that Malcolm is not a dual citizen. I saw his renouncement of UK citizenship before he became a candidate for the Senate.”
That post was not visible on Hanson’s page following the Friday court decision. A post decrying Matt Canavan’s citizenship status headed “can you believe it, another senator down” can be found on 26 July, as well as another previewing Roberts’s 27 July 27 appearance on Paul Murray’s Sky program to “prove he does not have dual citizenship” and “put to bed all concerns”, but the ‘hand on heart’ post could not be seen.
When contacted, Hanson’s staffer said the post had not been removed and its absence was either a quirk of the system or “user error”.
Justice Patrick Keane on Friday afternoon ruled Roberts, who believed he had renounced his British citizenship before last year’s election, was a citizen of the UK at the time of his nomination.
He found that “arguably” the only step the Queensland senator took to renounce dual citizenship was sending a 6 June email that experts agreed “could not be effective as a renunciation” because it was not sent to the UK Home Office.
Born to an Australian mother and Welsh father in India in 1955, the Queensland senator is one of seven parliamentarians to have their future considered by the high court, because the constitution bans dual citizens from sitting in parliament.
Keane in his judgment on “issues of fact”, published on Friday, found that Roberts was a UK citizen until 5 December and that Roberts “knew that there was at least a real and substantial prospect” that he remained a UK citizen when nominating for the Senate.
“Senator Roberts knew that he did not become an Australian citizen until May 1974” when he was naturalised, Keane wrote. Roberts could have sought “professional advice” or called the UK High Commission in Canberra to clarify his status before nominating but “did neither of these things”.
The judge further found his 6 June email inquiry was not effective because it did not contain a “declaration of truth” or was accompanied by the required fee.
He said the senator’s claim to be Australian because he felt he was one by identification “confuses notions of how a person sees oneself with an understanding of how one’s national community sees an individual who claims to be legally entitled to be accepted as a member of that community”.
“Senator Roberts could have made effective inquiries of the British High Commission by which he would have been informed of the steps necessary to renounce his foreign citizenship. He could have obtained and completed a form of renunciation declaration, such as Form RN, and returned it with the required fee to the Home Office, as he belatedly did.”
Roberts’ fate as a senator may now hinge on whether he took “reasonable steps” to renounce dual citizenship, despite failing to do so. His eligibility in federal parliament is to be decided in a hearing before the full bench of the court in Canberra from 10 October.
Roberts’ barrister, Robert Newlinds, accepted that Roberts remained a British citizen when he lodged his Senate nomination form on 8 June last year.
Newlinds argued Roberts could have done more to confirm and act on his status, but that he made an effort and acted in good faith. However, Roberts said he was blindsided by his lawyer’s concession, and insisted he still had not “seen the evidence” this was true. That was despite receiving confirmation of his renunciation from the UK Home Office months after his election, after completing official paperwork that his wife had chased up.
The court heard expert evidence that Roberts, before becoming an Australian citizen in 1974, had Indian citizenship by birth and British citizenship by descent.
Roberts said he filled out his sworn application to become a One Nation candidate on 29 April with “absolute conviction” he was Australian – that he had always identified as one.
He declared he was eligible to run, in line with the constitution, which prohibits dual citizens.
Roberts told the court that days later, reflecting on his Indian birthplace and Welsh father, he decided to “double-check”.
On 1 May, he tried to email the UK consulate in Brisbane with a heading, “Am I still a British citizen?”, sent to two addresses – bcabris2@britaus.net and bcabris1@britaus.net. Roberts said he found these on the internet but the court heard they were defunct.
He wrote: “If I am still a UK citizen I need to renounce it for compliance with electoral legislation in Australia.”
“Please advise whether or not I am still a British citizen? If I am a British citizen, how do I renounce it?”
On 3 June, Roberts filled out his Senate nomination form, declaring he was eligible, despite admitting in court he thought it a possibility he remained a British or Indian citizen.
Keane said it was “convenient to note” that the nomination form copy in Roberts’ affidavit had left out the page which spelt out in full the requirements of section 44 of the constitution and advice for people in doubt about their eligibility.
After no response to his first email, Roberts emailed those addresses again on 6 June, and another apparently flawed one, australia.enquiries@fco.gov.ukSydney.
This said: “As there was no reply to my email last month (see below) and although I am confident I am not a British citizen, with this email I renounce any British citizenship should it exist.”
Roberts said this was “effective immediately”.
One Nation, whom Roberts said did no vetting of him that he was aware of, lodged his nomination form with the Australian Electoral Commission in Brisbane two days later.
Roberts said his wife became concerned about his citizenship status around August 2016, and one of them wrote again to the Home Office on 10 September again seeking to “to clarify my citizenship/subject/national status”.
After a response, Roberts or his wife replied on 27 September: “I will now complete administrative processes linked in your email and thereby more formally renounce any and all claims to British nationality and allegiance.”
He completed the renunciation form and his wife mailed it with the required £272 fee on 2 November.
Keane found that the Home Office reply stated 5 December was the date Roberts ceased to be a UK citizen.
One Nation leader Pauline Hanson had referred to the media’s pursuit of Roberts’s citizenship status as a “witch hunt” and posted on her Facebook page how the controversy was helping to lift Roberts’ public profile.
In a post on July 26, Hanson said she could “hand on heart assure everyone that Malcolm is not a dual citizen. I saw his renouncement of UK citizenship before he became a candidate for the Senate.”
That post was not visible on Hanson’s page following the Friday court decision. A post decrying Matt Canavan’s citizenship status headed “can you believe it, another senator down” can be found on 26 July, as well as another previewing Roberts’s 27 July 27 appearance on Paul Murray’s Sky program to “prove he does not have dual citizenship” and “put to bed all concerns”, but the ‘hand on heart’ post could not be seen.
When contacted, Hanson’s staffer said the post had not been removed and its absence was either a quirk of the system or “user error”.
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