KEY POINTS:
- If Deputy PM Barnaby Joyce is found ineligible under Section 44 it would trigger a by-election.
- That by-election in New England would place the Turnbull Government's one-seat majority at risk.
- The government is arguing the politicians who did not know they were dual citizens, including Mr Joyce, should be excused.
The High Court's deliberations continued on Wednesday to determine whether seven politicians who were dual citizens around the time they entered parliament should be forced to resign under Section 44 of the Constitution.
The 'Citizenship Seven' come from across the political spectrum: The Nationals' Barnaby Joyce, Fiona Nash and former minister Matt Canavan; former Greens senators Scott Ludlam and Larissa Waters; One Nation's Malcolm Roberts and the NXT's Nick Xenophon. They all claim they were unaware of their dual citizenship until recently.
- A full explanation of the background can be found .
- And a summary of day one in the High Court is .
Here's how day two played out ...
4.15pm - Court adjourned, here’s the DAY TWO WRAP
Should section 44 of the Constitution be taken literally? Or is it more about the vibe, or meaning of the law?
That is the question that’s dominating this hearing in the High Court, which now only has one day left to run.
Yesterday the government was arguing the majority of the ‘Citizenship Seven’ should be pardoned, because they didn't know they were dual citizens.
And if you don’t know you’re a dual citizen, how can you possibly feel any loyalty to a foreign power?
But today, we heard from the other side.
Justin Gleeson - the former Solicitor-General now representing Barnaby Joyce’s rival Tony Windsor - is arguing for a much more literal, black-letter interpretation of Section 44.
If the judges substantially agree with his rendition it would see Barnaby Joyce, and several of his colleagues, kicked out of parliament.
He says it doesn’t matter what you “feel” about your foreign citizenship, or even if you know it exists, because the Constitution doesn’t say anything about that.
He argues a foreign citizenship creates a risk that your allegiance will be split between two nations, whether you know about it or not.
For example, you could be asked to serve in a foreign military, or charged with a crime in a foreign jurisdiction and asked to appear in a foreign court.
And he argued you don’t want to create a system where you reward politicians for ignorance, where you’re safe from Section 44 as long as you don’t make any effort to investigate, but you could be punished if you do.
We’ll have to wait and see which argument the judges find more compelling. The Court will meet again for the final day of this hearing tomorrow, beginning at 9.45am.
4.00pm - Winding down
The judges are questioning Geoffrey Kennett, who is acting as the amicus curiae or "friend of the court". He's not representing any of the politicians. He's just here to chat law.
Stay tuned for a summary of the arguments we've heard on day two.
3.30pm - Windsor's lawyers say the law was designed to catch dual citizens
Ron Merkel has taken over on behalf of Tony Windsor.
He is arguing against the government's submission yesterday that Section 44 should only strike down parliamentarians who deliberately, or knowingly, obtained or retained a foreign citizenship.
He says if those who wrote Section 44 intended it to be narrowed that way, they would have written it like that. He says there's no reason to "read in" concepts that aren't apparent in the law.
3.00pm - Rewarding ignorance and the 'tripwire of knowledge'
Mr Gleeson says the problem with the government's case is it rewards people for deliberately not finding out about their possible foreign citizenships.
It would establish a precedent that "a person is perfectly entitled not to seek advice" about a possible dual citizenship, he says.
In contrast, those who do make the effort to find out would "hit the tripwire of knowledge" and then be forced to renounce it.
He says this would create a system where the media and the public run around trying to catch out dual citizens (much like we've seen over the past few months in parliament).
That's why he argues Section 44 should be interpreted strictly and literally. If you have a foreign citizenship, you're out.
2.40pm - Everyone knows you can get NZ citizenship from your parents, says Gleeson
Justin Gleeson is trying to establish that Barnaby Joyce should have suspected he might be a Kiwi through his father's NZ citizenship.
He says it's been common knowledge "since federation" that Australians can get foreign citizenship by descent.
It is a "well-established method by which foreign citizenship was acquired", he says.
Furthermore, NZ makes it quite easy to get rid of it.
"There was a ready means, under the law of New Zealand, to renounce his [Barnaby Joyce's] citizenship without onerous conditions."
12.40pm - It doesn't matter what you 'feel'
Justin Gleeson continues his argument. This is emerging as a more literal reading of Section 44.
He says it doesn't matter whether you know you're a foreign citizen or feel like you're a foreign citizen - just that you are one.
"The fact of the allegiance is what creates the risk that you will not have the loyalty you need to the parliament of Australia," he says.
Mr Gleeson uses the example of a foreign country demanding its citizens do compulsory military service.
"The duty of allegiance, which can then take effect in specific legal obligations [like military service], is in effect and does its work irrespective of your knowledge."
The court breaks for lunch. We will resume at 2.15pm.
12.30pm - Gleeson begins the anti-Barnaby case
Former Solicitor-General Justin Gleeson, representing Tony Windsor, is making the case for Barnaby Joyce to be thrown out of parliament.
He says Mr Joyce should have reasonable steps to renounce his New Zealand citizenship before the last election.
Like the Greens' lawyer, he argues candidates for parliament should investigate their own circumstances.
Interestingly, Mr Gleeson also reckons even a 7th generation Italian citizenship by descent could pose a risk to a parliamentarian's undivided loyalty to Australia - if they know about it and accept it.
This is going against the arguments from Matt Canavan's lawyer below.
“That foreign citizenship is very capable, perfectly capable of creating a sense of duty and enforcing duty and obedience," Mr Gleeson says.
"Their allegiance to Italy is a matter that creates the risk of conflict with the primary undivided loyalty to the people of Australia."
12.00pm - Renunciation is a 'simple task', says Greens lawyer
Greens lawyer Brian Walters QC is taking more fire from the panel of judges.
They are asking him whether the requirement to take "reasonable steps" to get rid of your foreign citizenship, established in Sykes v Cleary 1992, should apply to natural-born Australians.
The 1992 case was all about foreign-born, naturalised Australians. But Mr Walters says it should apply to everyone, including those born in Australia who were given foreign citizenship by descent (like Joyce, Nash and Canavan).
Mr Walters is arguing there is no difference. Candidates who aspire to a seat in parliament "have a duty at the general level to comply with the Constitution", he says.
It's a box you have to tick on the nomination form.
"Their mind is directed to it," Mr Walters says.
"It's a simple task and not one that should be lightly overlooked."
11.10am - Greens lawyer argues his clients did the wrong thing
Brian Walters QC is on his feet, making the case for the two resigned Greens senators: Larissa Waters and Scott Ludlam.
It's an unusual case as he is actually arguing his clients made mistakes by not checking their citizenship status before they entered parliament and were right to resign. He argues the others should do the same.
The High Court judges are asking a lot of questions here. "Are you asking us to find as a fact that your clients were negligent?" one asks.
Mr Walters says his team wants to help the Court with its analysis of Section 44. He also wants to explain why his two clients acted in the proper way.
Chief justice Susan Kiefel seems unimpressed at first.
“Is it a proper use of the court’s time to argue for a vindication of their [Ludlam and Water's] view?”
Mr Walters accepts that "this court can't vindicate our clients" and is now continuing his case.
He is arguing that politicians who are aware they have foreign heritage should know there's a risk of citizenship by descent and should check.
"Negligence should never produce a more favourable result than diligence," he says.
10.50am - Nick Xenophon and his strange links to Britain
Nick Xenophon's lawyer Andrew Tokley is making the case for the South Australian senator - anyway to run in the SA state election.
Mr Xenophon's case is a little different to the others. His parents are from Greece and Cyprus. As his lawyer says, he "always believed he was a descendant of a Greek tradition," so he contacted those two embassies to renounce any citizenship.
But he allegedly didn't realise his father left Cyprus before it gained independence from Britain.
This gave Nick Xenophon a sub-class of British citizenship: a 'British overseas citizen'.
Mr Tokley is arguing this is not the same as a full British citizen.
He's explaining Mr Xenophon doesn't have any of the "rights and privileges" you'd expect a citizen to have. He can't reside in Britain and can't get a passport.
He says British law distinguishes between the two categories - British citizen and British overseas citizen - so he is asking the High Court to do the same.
10.30am - Avoiding 'genealogical witch hunts'
Matt Canavan's lawyer David Bennett wraps up.
Italian citizenship, as we explained , is very sticky and continues through the generations indefinitely unless someone breaks the chain by renouncing their Italian status.
Mr Bennett says it would be ridiculous to expect would-be politicians to trace indefinite Italian citizenship through the generations.
It would lead to "genealogical witch hunts that will occupy this court every time there is an election", he says.
“Such offensive inquiries are totally inappropriate in a nation of immigrants, which was a nation of immigrants as well in 1901”.
He rests his case. On to Nick Xenophon's lawyers now.
10.15am - Day Two of the citizenship hearing begins
Yesterday was dominated by the government's lawyers.
Solicitor-General Stephen Donoghue maintains that all of the Citizenship Seven - except Malcolm Roberts and Scott Ludlum - should be allowed to remain in parliament, because they didn't know they were dual citizens.
He argued they were victims to foreign citizenship law outside their control.
Today, we should hear more from Matt Canavan's lawyer, and the beginning of the case against that government, including from the legal team representing Tony Windsor.
Mr Windsor is a long-standing electoral rival of Barnaby Joyce and would likely face him in a by-election in New England if the deputy prime minister is ruled ineligible by the High Court.
