Re Roberts [2017] HCA 39

Re Roberts [2017] HCA 39

Senator Roberts was a British citizen by descent at the time of his nomination and had not validly renounced that citizenship according to British law as of that time. His subjective belief or understanding did not equate to objective renunciation, as the legal requirements under British law for a valid renunciation, including a written declaration made to the appropriate authority and accompanied by the prescribed fee, were not satisfied by his actions prior to nomination.

Parties
Party to the Reference (subject of Reference): Senator Malcolm Roberts; Party (attorney General): Attorney-General of the Commonwealth; Amicus Curiae: S B Lloyd SC with J A Arnott
Jurisdiction
Australia
Judgment Date
22 September 2017
Procedural Posture
Reference to the Court of Disputed Returns / Interlocutory Factual Hearing Before a Single Justice
Outcome
Findings of fact and law made; matter reserved for full hearing of the reference by the Full Court.
Legal Topics
Parliamentary Eligibility, Section 44(i) of the Constitution, Dual Citizenship and Disqualification, Renunciation of Foreign Citizenship, Citizenship Law
Constitutional Law Election Law Parliamentary Eligibility Section 44(i) of the Constitution Dual Citizenship and Disqualification Renunciation of Foreign Citizenship Citizenship Law

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Parties

Senator Malcolm Roberts

Party to the Reference (subject of Reference)

Attorney-General of the Commonwealth

Party (attorney General)

S B Lloyd SC with J A Arnott

Amicus Curiae

Procedural Posture

Reference to the Court of Disputed Returns / Interlocutory Factual Hearing Before a Single Justice

Legal Issues

  1. 1 Whether Senator Malcolm Roberts was incapable of being chosen or of sitting as a Senator under s 44(i) of the Constitution by reason of British citizenship at the relevant time
  2. 2 What steps Senator Roberts took and could have taken to ascertain and, if necessary, renounce foreign citizenship prior to nomination

Ratio Decidendi

Senator Roberts was a British citizen by descent at the time of his nomination and had not validly renounced that citizenship according to British law as of that time. His subjective belief or understanding did not equate to objective renunciation, as the legal requirements under British law for a valid renunciation, including a written declaration made to the appropriate authority and accompanied by the prescribed fee, were not satisfied by his actions prior to nomination.

Court Disposition

Findings of fact and law made; matter reserved for full hearing of the reference by the Full Court.

Orders

  • Leave to read affidavit of Ms Deane refused for this hearing but tendered for identification;
  • Parties directed to notify by 5 October 2017 any factual matters in Ms Deane’s affidavit with which Senator Roberts takes issue;