Re Roberts [2017] HCATrans 192 (21 September 2017)

Last Updated: 22 September 2017

[2017] HCATrans 192

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Canberra No C14 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR MALCOLM ROBERTS

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 21 SEPTEMBER 2017, AT 10.14 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC: Your Honour, I appear as amicus curiae in this matter, assisted by my learned friend, MR J.A. ARNOTT. (instructed by Australian Government Solicitor)

MR C.R.C. NEWLINDS, SC: If it please the Court, I appear with MR R.J. SCHEELINGS, for Senator Roberts. (instructed by Holman Webb Lawyers)

MR M.P. COSTELLO: May it please the Court, I appear on behalf of the Commonwealth Attorney-General. (instructed by Australian Government Solicitor)

HIS HONOUR: Mr Lloyd, this morning is your party, I think.

MR LLOYD: I will try and get through it as well as I can. Can I first indicate the material that is before the Court. There is an affidavit that has been filed by the Commonwealth of Mr Andrew Kevin Gateley. It primarily attaches material pertaining to the result of the elections. There is only one document in there that I will go to, but it should be before your Honour. I have been asked by the Commonwealth to read the affidavits that follow, so I would read that affidavit.

MR NEWLINDS: There is no objection, your Honour.

MR LLOYD: Now, the Commonwealth has also filed an affidavit from an Indian law expert and from an English law expert. As I understand it, there has been no request for cross-examination of the Indian law expert so I would read that affidavit now. That is the affidavit of Associate Professor Arun K. Thiruvengadam. If I could just indicate – and I do not know that there is any huge controversy about this, but what that report indicates, we say, is that when Senator Roberts acquired Australian citizenship when he was 19 he lost Indian citizenship that he would have had by reason of being born in India. I do not propose really to say anything further about that report.

MR NEWLINDS: Our position on that report is that it is irrelevant. No one has ever suggested that Senator Roberts was Indian at the relevant time. It is not part of the referral from the Parliament.

HIS HONOUR: So you object to my reception of it.

MR NEWLINDS: I do.

HIS HONOUR: Mr Lloyd?

MR LLOYD: Well, I press it. It has some relevance because some of the material before the Court involves Senator Roberts saying that he has never had any citizenship other than Australian. To the extent that that is relevant, in the sense that it has been advanced and is before the Court, the Court should be in a position to know if that is correct or not, but this report indicates that Senator - - -

HIS HONOUR: Senator Roberts was born in India.

MR LLOYD: He was born in India and this report indicates that by reason of his birth at the time of his birth he would have been an Indian citizen by birth, but that he would have lost it when he took Australian citizenship.

HIS HONOUR: Mr Newlinds?

MR NEWLINDS: The problem is the expert is asked to assume that Senator Roberts’ birth was registered in India and then draw certain assumptions – make certain opinions based on that. That primary fact is not proved. It is common ground that he was born in India, but my point is this. It is just not relevant. It has never been suggested that he is Indian. I do not say he was Indian – at the relevant time. He might have been Indian in the past, who knows, but it is not relevant.

HIS HONOUR: Well, Mr Lloyd, its relevance is elusive at best.

MR LLOYD: Can I indicate, your Honour, that if your Honour has a copy of that report – I think I can provide a working copy if that is of assistance. What my friend says is correct, that the expert was asked to assume that Senator Roberts was Indian by reason of his birth, but in paragraph 4.3 the expert then confirms that assumption. Can I say one thing further about the question of relevance?

HIS HONOUR: So he became a citizen by force of law in India.

MR LLOYD: That is so.

HIS HONOUR: He became an Indian citizen by force of law by reason of his birth.

MR LLOYD: That is so.

HIS HONOUR: Independently of any question of registration.

MR LLOYD: That is so, and he lost it by reason of taking another nationality – Australian.

HIS HONOUR: Well, Mr Newlinds, there does seem to be some relevance to the Court.

MR NEWLINDS: Well, yes, if your Honour is minded to make a finding of fact that at the relevant time he was not Indian - if my learned friend is going to invite you to make that finding, well, this would be the basis for it and I would support it, but I do not propose to mention it again and if my learned friend does not, then - - -

HIS HONOUR: Well, I will receive the – is it a report or is it an affidavit?

MR LLOYD: It is a report, I think, your Honour.

HIS HONOUR: It is a report. Well, I will receive the report.

MR LLOYD: Your Honour, this morning we filed a set of opening submissions. Has your Honour had a chance to look at that at all?

HIS HONOUR: I have, thank you.

MR LLOYD: In the opening paragraphs I indicate the approach that I have taken because of the kind of unique position of being an amicus on the facts but not on the law. The view that I have taken is that it seems at least that I would say both Senator Roberts and the Commonwealth Attorney-General more generally in the cases that are to be heard in the Court in October are eschewing arguments that may be as an expansion of existing law.

Now, I am not saying that is right or wrong because that is outside my remit but in terms of that and in terms of the fact that the material that has been advanced to the Court by Senator Roberts and for that matter the Commonwealth, it is advanced on the basis that it might be relevant to the matters they want to argue in October. I have not taken any relevance objection.

I would say that on the existing law, as I read it in Sykes v Cleary, a vast bulk of Senator Roberts’ material is irrelevant, but I will not take that objection. The Court can make findings in relation to the matters asserted. They have advanced it on the basis that it is relevant and I have just sought to test aspects of it. So that is the modus operandi that I am pursuing.

HIS HONOUR: Well, certainly I would take a lot of persuading that I should enter upon any consideration of questions of reasonableness as steps taken to renounce citizenship, given that it would be likely in the scheme of things that arguments will be advanced about things that were said in Sykes v Cleary about reasonable steps and what that means. At the most, I would make findings about what happened in terms of steps - - -

MR LLOYD: I understand - - -

HIS HONOUR: - - - and perhaps what might have happened earlier, if the timing is relevant, but certainly I do not understand my remit today as going beyond finding primary facts, not findings that involve mixed questions of fact and law.

MR LLOYD: That is exactly - - -

HIS HONOUR: And reasonableness of steps, as that expression was used in the various judgments in Sykes v Cleary clearly, it seems to me, involve mixed questions of fact and law.

MR LLOYD: I accept that entirely, your Honour. I will not be making any submissions that the steps taken by Senator Roberts were reasonable or were unreasonable. Our submissions, as the opening submissions show, seek to identify facts that your Honour could find as a finder of fact and then – the primary facts in essence, and then the Full Court can decide whether or not the matters that your Honour finds occurred or did not occur, omissions or things, is reasonable. That is entirely consistent with the approach I have taken.

Now, I would read – there is a report by Mr Fransman, QC, and sort of a joint note. Unless your Honour wants me to formally read that now, I will do that later when there is going to be cross-examination of those people.

HIS HONOUR: Sure.

MR LLOYD: There is material that was transmitted by the Parliament to the Court. I am not sure if that needs to be formally recognised or identified in any way, but I will refer to it just as the President’s - - -

HIS HONOUR: This is the actual reference.

MR LLOYD: Reference.

HIS HONOUR: For my part, I do not require you to read it. I do not know if Mr Newlinds does.

MR NEWLINDS: I think the Chief Justice said on the first return date that that material was before the Court, so if that means it has been tendered in – and we can refer to it and your Honour has it.

HIS HONOUR: Thanks, Mr Newlinds.

MR LLOYD: I am content with that. Your Honour, I think that then brings me to – then after receiving leave to be amicus last Friday, and after reviewing some of the material in the affidavits advanced on behalf of Senator Roberts, I asked Ms Deane, who was a solicitor engaged by the Australian Government Solicitor but working only to assist me on the matter, to make a number of inquiries in relation to factual matters that I thought needed to be examined and are of relevance to the Court.

So there is an affidavit of Rachel Maree Deane sworn yesterday, which was filed yesterday. I understand it is objected to but before your Honour gets to the objections, if I can take your Honour to what its relevance is or why we are advancing it. Does your Honour have a copy of that?

HIS HONOUR: I do.

MR LLOYD: One of the matters is that there were two emails that were sent by Senator Roberts. One, I think, was of 1 May and the other was of 6 June which are in many respects critical to the facts because they constitute conduct that he took either to verify whether or not he was a British national and/or to achieve a renunciation of that status.

The first email - if your Honour has the affidavit, and you will see this later when we get to Senator Roberts’s material – is sent to the two addresses which are specified in paragraphs 2.2 and 2.3 of the affidavit. The second email, the one of 1 June, was sent to those two addresses as well as the first address.

Now, it occurred to me that the first address, ending with “.ukSydney”, was clearly a flawed and wrong email address. That is not how email addresses work, and I asked for inquiries to be made about that and I asked about whether or not the “britaus.net” email addresses were active. I should say that none of these emails, according to Senator Roberts’s current evidence, led to any responses. He did not get a response from anyone to either of these two emails or any of the addresses to which they were sent.

We say it is relevant, when it comes to the reasonableness of the steps taken, whether he sent them to actual addresses associated with the UK Government or to wrong addresses - not relevance, obviously, to the bona fides of his efforts but potentially relevant to their reasonableness.

What one sees in the affidavit is inquiries that were made, in paragraphs 3, 4, 5 – 5 is a conversation between my instructing solicitor and a person who answered the phone at the British UK Consulate, which suggested that those addresses were not associated with the Consulate, which is what Senator Roberts had believed to be the case when he sent them.

Paragraphs 7 and 8 refer to emails that were sent to those addresses to see if there were any responses - which there were not. Paragraphs 9, 10, 11, 12, 13 and 14 all relate to a series of inquiries of the British High Commission in Canberra to see if we could get a clear statement from them as to whether or not these were the correct addresses.

Then paragraph 23 attaches the exhibit to that, which is the last couple of pages in the bundle. It is an email from the Deputy High Commissioner in response to the earlier emails. If your Honour goes to that, which is on page 92 of the affidavit, your Honour will see that the Deputy High Commissioner has indicated that the first two email addresses were decommissioned from being used by the British Government since 2010. The second one, which is the one that ends in “ukSydney” is just incorrect and was not used by them. The third one – I have not mentioned this address – is the address on their website, and there is an indication there that this was their address in May and June of 2016.

We say that the relevance of that is that your Honour should admit this evidence because it is reliable evidence to indicate that the emails of 1 May and 6 June were not sent to addresses in fact used by the British Consulate in Brisbane or the British High Commission in Canberra, so we would seek a finding of primary fact on that matter.

As for the balance of the affidavit, in paragraph 15 there is a reference to annexure 7. Annexure 7 is a search that was undertaken by my instructing solicitor of one of the addresses in fact used by Senator Roberts. One sees the result of that search, which is on page 27 of the affidavit, your Honour. The first result from the Google search says:

Embassy of United Kingdom in Australia - United Kingdom visa

Then there is a website which is for a “visahq.com” address. If your Honour goes over to exhibit 8, there is a printout of that website, and your Honour will see in the printout from that website, which belongs to visahq.com.au, there is an email address there for the United Kingdom High Commission in Canberra which has the “ukSydney” matter which the Deputy High Commissioner said is not a correct address.

What it shows is a place that Senator Roberts may have found, and I will ask him about this in his evidence, whether this is perhaps the site. Then over the page, on page 30, your Honour will see “United Kingdom Consulate in Queensland” and there are the two addresses that Senator Roberts used for that purpose.

What we are indicating is that it would have been possible to search the internet to find those addresses, which may well be relied upon by my friends to show the reasonableness of what was done, but we say that has to be read in connection with the evidence from the Deputy High Commissioner that those addresses were in fact not used at the time, so the visahq website, whoever is in charge of that, was out of date or wrong – out of date in the case of the britaus addresses and wrong in the case of the High Commission address. That was paragraph 15.

Paragraph 16 contains a printout of a current website for the British High Commission. One sees that there. On page 39, the top of that page, one sees the Deputy Head of Mission, Ms Southworth, referred to. She is the officer who sent the email which is at the back of the book. But one also sees at the bottom of that page, under “Contact us”, the correct form of the email address which was not one used by Senator Roberts. So that is paragraph 16.

Paragraph 17 contains reference to two exhibits. The first exhibit is Senator Roberts’ Facebook page. There is a printout from that. It is not – I will not be relying upon it save for the fact that on it is also the document which is at exhibit 11. Now, that document at exhibit 11 is a document, a statutory declaration by Senator Roberts which is included in the material sent by the President of the Senate. The only reason we put that before the Court is that this one is signed and for reasons I do not understand the one that comes from the Senate is unsigned or somehow obfuscated. So, that is just to put that before the Court.

The next exhibit is 12, that is a transcript of a press conference that Senator Roberts held with Senator Hanson and I may want to put aspects of it to Senator Roberts and, in particular, if your Honour goes to page 55, there is a somewhat blunt and potentially offensive question asked in the middle of that page which ends with:

When you were 19 years old, you signed that you were British –

to which Senator Roberts responded:

I was a citizen of the UK and colonies.

Now, it does continue in a way which is not altogether clear but we will say that that is – it was something that I would want to raise with Senator Roberts depending upon other answers he gives.

Then, the next exhibit is – the next paragraph is paragraph 19 and the next exhibit is exhibit 13 and this is a recent Google inquiry if one asks “How to renounce my British citizenship” and there are a couple of – I mean the first two substantive entries “Give up (renounce) British citizenship” or “Application to give up (renounce) British citizenship” are both from websites which have the “.gov.uk” address. We say this is relevant because it shows that there is information readily available on how to renounce British citizenship.

If I can take your Honour to exhibit 15 which is one of those – I think the second of the two websites. It is put against us that this is what you get if you search today and that is no doubt true. But if your Honour looked at page 66 it can be seen that this kind of information was also available at the time. So, one sees there that there was a page that was published in 2013. This particular page was available prior to Senator Roberts signing his nomination form and at the bottom of page 66 it can be seen that there were various updates - - -

HIS HONOUR: Sorry, did you say this document was referred to in the One Nation nomination form?

MR LLOYD: No, no, what I am saying is that Senator Roberts signed his nomination form, his Australian Electoral Commission nomination form on 3 June and this document says it was last updated on 1 June but also when one sees the bottom of the page it appears that it has been on the website since at least October 2013. So that this would have taken Professor Roberts to information that the actual form that he ultimately did fill in to ultimately, in fact, effect the renunciation of his British citizenship. So, it could have been achieved easily. That is the point that we seek from that that it is not a difficult matter.

The next exhibit is exhibit 17. This is a copy of a form for nomination of senator and this is a form which Senator Roberts has indicated he completed and is otherwise in the evidence but the first page of that form is not in the evidence and he – Senator Roberts refers to that first page, the explanatory notes, in his affidavit but he does not attach it and he says he does not have it anymore. So, that is us providing it. The relevance of it, if your Honour looks on page 71 it sets out section 44 and after 44, immediately after 44, it says:

Candidates who have any doubts about their eligibility, by virtue of section 44 . . . are advised to obtain their own legal advice.

That is something that Senator Roberts does not say that he did. Then there is also a reference there to the:

Candidates Handbook and the Nomination Guide –

which are available from the Australian Electoral Commission and were available. Then, the next exhibit, exhibit 18, is the nomination guide which it can be seen is the version from 12 May 2016, which was the one applicable to Senator Roberts’ election and it – on page 78 under Step 1 it has a small entry in relation to “Determine your eligibility” and at the end of that it says:

See Electoral Backgrounder on Constitutional Disqualifications and Intending Candidates –

and so that shows that there was a sort of a documentary piece of advice, in a sense, available provided by the AEC on that matter.

Then the next exhibit which is on page – starts on page 84 is the Candidates Handbook. It is quite a long document. We have just extracted the index and the relevant pages are pages 12, 13 and so one sees on page 12 which is page 88 of the affidavit “Who can nominate as a candidate?” and at the bottom it says:

You cannot nominate for the House of Representatives or Senate if you:

. . .

• are disqualified by section 44 of the Constitution.
  

Then over the page there is discussion about disqualification including about “Office of profit” and then over the page, onto page 14 there is some reference to the “‘Foreign allegiance’ disqualification” and we draw attention again to that italicised section under that:

You are required to sign a declaration on the nomination form that you are qualified under the Constitution and the laws of the Commonwealth to be elected to the Commonwealth Parliament.

If you have any doubts as to your qualifications under the Constitution, the AEC recommends you seek your own legal

advice. The AEC does not provide legal advice to prospective candidates.

So, we say that these are matters that Senator Roberts - Senator Roberts does not put in evidence that he looked at any of these documents even though they were referred to in the explanatory notes and so we are providing them to the Court to show what kind of materials were available which could go to the relevance – which could go the reasonableness of what he, in fact, did.
Then, the last document is the document I have already taken the Court to relating to the email addresses.

So, we appreciate that some of the matter is hearsay but we say that the rules of evidence do not constrain the Court of Disputed Returns under section 364. This is material of some weight coming from an email from the Deputy High Commissioner, and the other materials attached should be uncontroversial and are checkable, as we have explained how we got the documents and what would be done and we say that the Court should admit them. My friend can say anything he wants about the weight of them, but we do read the affidavit.

HIS HONOUR: Mr Newlinds.

MR NEWLINDS: There is no doubt that all of the evidence in the material is relevant; I accept that. Can I just identify which parts of it we do not object to, perhaps working backwards? Firstly, the Candidates Handbook referred to in paragraph 22 and exhibited in RMD-19 we do not object to.

While your Honour has the affidavit though, may I point out why it actually helps Senator Roberts’ case, and that is because there is a recommendation somewhere that what the candidate should do is contact the consulate or high commission of the relevant country. That is right, on page 90 of the affidavit under the heading “‘Foreign allegiance’ disqualification”, which is not a great heading for the topic, there is a reference to what the drafters of this handbook think Sykes v Cleary stands for. Then at the bottom of that first full paragraph:

The steps to take for renunciation may depend upon foreign law. If you have foreign citizenship you should check with the relevant embassy or high commission about the procedures for renouncing it.

There is no suggestion Senator Roberts actually saw or read that document but we could not submit it is irrelevant and we do not submit that we are in any way prejudiced by it being tendered late. The same can be - - -

HIS HONOUR: And it could be put to him; he could be asked about it.

MR NEWLINDS: It could be put to him, sure. There is a little bit of unfairness in that. Of course, if we had the evidence when he prepared his affidavit he would answer it in his affidavit, but I am not suggesting that we are prejudiced because of that. The same can be said about the “Nomination Guide for Candidates” referred to in paragraph 21, so we do not object to that.

The rest of it we do object to. While your Honour has the last page of the affidavit open, the problem with the Form 59 nomination of a senator referred to in paragraph 20, which is RMD-17, is that appears to be the current form for nomination of a senator and therefore the front page of that could be the front page of the current form. It is not the same form as the Senator signed. There is a copy of that form in his affidavit.

So it falls into the category of, well, it is irrelevant because it is a form that exists at a different point in time. At page 72 of Senator Roberts’ – the nomination form signed by Senator Roberts is at page 53 behind tab 13 of the exhibits to Senator Roberts - it is a different form, and no doubt Ms Deane, if she had been asked earlier, could have asked for the right – for the form that existed at the relevant time. So it is of no relevance.

Then going back to the start, the evidence about the emails and the discussions with the various people at the British High Commission and Consulate, in our respectful submission is irrelevant and inadmissible for two reasons. Firstly, the fact that the emails do or do not bounce back on Sunday of this week is of such marginal relevance to the question at issue, which is, were they the operative addresses a year ago as to not justify them being admitted, and secondly, all of the conversations are hearsay.

Now, I appreciate that the rules of evidence do not necessarily apply to these proceedings, but to drop evidence at about 4.00 pm the day before a hearing on a party and then say well, do not worry about it being hearsay because the rules of evidence do not apply, really does not come to grips with the problem. We have had no opportunity to test any of this, and have not.

The letter written from the person at the High Commission is obviously not admissible as a business record. Quintessentially it has been written for this litigation because the person writing it asked for information about the litigation so they can tell their media people to be ready for inquiries. So, if the rules of evidence applied, it would not be admissible.

Of course, just because the rules of evidence do not apply does not mean that they are not a very useful guide for what is a fair and appropriate way for a hearing to be conducted. So that is what we want to say, in the context where, if it was not for me saying what was thought to be an outrageous statement a few weeks ago before the Chief Justice when I said this case would not be ready for a hearing a week ago, our learned friends are still dropping evidence on us yesterday, your Honour would not grant the leave that is necessary to rely on late evidence. That is all we wish to say.

HIS HONOUR: Thank you, Mr Newlinds.

MR NEWLINDS: Sorry, I did not address the various – the Sky News interview and the like. He can be cross-examined on that. I do not really mind if it goes in or does not go in, so I - - -

HIS HONOUR: Well, if it is going to be cross-examined upon, I do not think we need worry.

MR NEWLINDS: I accept he can be cross-examined on it, so I do not have a position on those parts - - -

HIS HONOUR: Mr Lloyd. Mr Lloyd, I wonder whether this material, that is to say, the material that you are not in a position to cross-examine about and you need it to stand alone, I wonder whether it is not – there is the issue about anachronism and one cannot deny there is some force in the difficulty of having this material presented to you the day before the hearing, given that when this matter was arranged on Friday of last week the focus was upon cross-examination of Senator Roberts on his affidavit concerning his knowledge and state of mind in relation to his citizenship.

True it is that there was mentioned the possibility of expanding the issue to steps he took and steps he might have taken perhaps, but that expansion of a hearing really was only proposed yesterday - and I am not in any way criticising you or your persistence because we have very, very tight timetable here, but there does seem to be an element of, one will not say oppression, but hardship on the other side in asking them to deal with it in circumstances where they do not have an opportunity really to investigate what has been put against them in terms of what was available a year ago, and they just do not have a chance to investigate it.

MR LLOYD: Your Honour, if I could put it this way. When I read Senator Roberts’ report he says – and perhaps I should go to that because it is - - -

HIS HONOUR: His affidavit?

MR LLOYD: His affidavit. Could I go his affidavit? In paragraph 9.7 he says:

At 11.20 AM . . . I wrote an email to two email addresses at the UK Consulate in Brisbane.

Then in 9.8 he says:

I used two email addresses . . . which I found from my research on the Internet.

Now, my thinking was that that was not a proper way of showing that he had the right addresses. He did not show what his researches showed. He has not proven that his emails were sent to the right addresses. Then I thought I could just say this evidence is inadequate to prove that they are the right addresses, but then I thought it would be fairer to Senator Roberts and to the Court to make some actual inquiries and not try and deal with an issue of onus and then there would be an argument about onus.

I will say that I am an amicus. I do not have an onus. I am here to assist the Court to test the evidence and that this evidence does not get to the standard, and then it seemed that we should verify whether or not they were the right addresses and then, making an effort to verify it, we feel that we verified that they were the wrong addresses. Now, I accept that Senator Roberts does not have or has not had any significant time upon the receipt of this email to deal with it.

HIS HONOUR: Well, any time at all, really.

MR LLOYD: Well, most of the searches are Google searches which could have been carried out by Senator Roberts or his legal advisers yesterday and replicate the exact same thing.

HIS HONOUR: Yes. One can also say that in the end one knows from what actually happened when Mrs Roberts got involved what could be found. We know that that could have happened. The only issue is – well, I should not say the only issue - there is a question as to why it did not happen earlier. But that, it seems to me, is getting into the area of reasonable steps and reasonableness that is perhaps an issue better addressed when the target is not moving. It seems to me that at the moment the reasonableness target is necessarily a moving one.

I mean, when one looks at Sykes v Cleary one can see that there are arguments that reasonableness could be about the reasonableness of the steps taken to do all that is in one’s power to renounce. It might be said that reasonableness is something freestanding. It might be said that that is so. This hearing is not about attempting a resolution of those questions.

It seems to me that to the extent that findings of fact might need to be made about questions of reasonableness that involve the ready availability of this information and the failure to turn it up might better be left if they remain relevant and necessary to be determined until after the Full Court has determined questions of law that fix the target as to relevance.

MR LLOYD: My role is an unusual one, your Honour. From my point of view it is – there is a question as to whether or not sending the emails to the right address was relevant. For example, as I apprehend what will be said on behalf of Senator Roberts - and I might be wrong about this but they will say – the expert that they have put forward, Mr Berry, has indicated that if – that in order for the registration of a declaration of renunciation to be effected, one has to send it to a particular so-called appropriate authority and the appropriate authority is the Home Office in the UK and it is accepted that on any view including Senator Roberts’s material, it was not sent there.

So, to that extent, it was, in any event, sent to the wrong address. But Mr Berry was asked a question which seemed to deal with the possibility of would the British High Commission have passed it on or what would the significance of it having been sent to the British High Commission be? There would be scope for argument about that. But that then brings in the underlying fact as to whether it was even sent to the British High Commission. Now, if your Honour considers that a better course - - -

HIS HONOUR: Well, as to that, is it not the case that there is no suggestion that the British High Commission or the British Consulate in Brisbane ever responded to these emails? There is no suggestion that that ever happened.

MR LLOYD: That is correct.

HIS HONOUR: Well, that is just the fact, is it not?

MR LLOYD: That is the fact and, we say the fact is they did not respond because they were not the addresses that they were using.

HIS HONOUR: There was no response for a long time.

MR LLOYD: Prior – I think that the circumstances – there was no response ever to those emails. The facts are that the first email which is headed something like “Am I Still a British Citizen?” was sent on 1 May and a second - - -

HIS HONOUR: A month later there had been no response.

MR LLOYD: Yes, so by 6 June or by 3 June when the nomination was signed there had been no response and by 6 June there had been no response so he sends a second email, in effect, complaining and there is a complaint in the email about the lack of response. So it is no part of the facts that I would contend for that Senator Roberts did not honestly believe they were the right addresses. All I want to say is that we think there is a significant issue of fact as to whether or not they were. Now, whether it is significant or not depends upon what the law is, which is not for me to say.

HIS HONOUR: That is the concern I am agitating with you.

MR LLOYD: So, from my point of view I am content for the factual matter to be put off until after the Full Court decides whether or not that matter could be in issue. It could be just left in abeyance with no ruling one way or the other and only ever to be decided if it makes a difference.

HIS HONOUR: Mr Lloyd, the thing that weighs with me is that there really is a powerful public interest in the expeditious resolution of the reference and that means maintaining the timetable that is directed to having this matter heard on 10 October, if that is possible, consistently with the interests of justice, of course.

I am concerned that the affidavit of Ms Deane will only be of marginal relevance to the matters that I could properly determine as questions of primary fact today and that there is a question as to the fairness of acting upon it to Senator Roberts, particularly given that as you acknowledge it will be possible for your points or the points that you can say can be made from her affidavit to be made well to the extent that they need to be made after the law has been established that determines their relevance.

MR LLOYD: I accept that if that is – if, after the hearing in the Full Court on 10, 11 and 12 October whatever, the view is that Senator Roberts is clearly a senator or clearly not a senator irrespective of this fact - - -

HIS HONOUR: Yes.

MR LLOYD: - - - there would be no need ever to look at it. All I would suggest to the Court is that rather than – perhaps for the moment the Court could refuse this evidence but know that it is a disputed issue and not make a finding one way or the other on that fact.

HIS HONOUR: I will certainly note that.

MR LLOYD: So if on the reasoning of the Court that ends up being decisive it would be – ultimately, we say, not in the public interest if properly understood with the law properly applied, Senator Roberts would not be qualified to be a senator if he sent them to the wrong email addresses and that was not finally resolved as a factual matter. But, apart from that, I – that is all I want to say about - - -

HIS HONOUR: Apart from that, as Mr Newlinds has acknowledged, material that you can properly put to Senator Roberts in cross-examination that you have flagged in this affidavit can be put to him for whatever use you want to make of it.

MR LLOYD: Indeed.

HIS HONOUR: Mr Newlinds, my inclination is not to give leave to Mr Lloyd to tender the affidavit of Ms Deane and that is on the footing that any question of reasonableness of steps to which it goes is a question better resolved after the law has been settled by determination of the Full Court. Do you have any view to the contrary?

MR NEWLINDS: I was going to make this suggestion because frankly, and I suppose obviously, it is reasonably unlikely that anything that is in this affidavit will be in issue once we have made our own inquiries. I want to be frank about that. Another possibility is that you simply give us an opportunity prior to the October dates to notify the Court as to whether there is any issue about these facts. It will mean you do not find the facts but the affidavit can then be before the Full Court or not.

HIS HONOUR: Well, that is a very helpful suggestion. That would mean that if there was not any controversy about these facts, then the facts would be before the Full Court - - -

MR NEWLINDS: And they are in an affidavit, they would not have been found by - - -

HIS HONOUR: If there is a controversy about them, then the possibility of a further single Justice hearing after the Full Court has determined the matter might have to be pursued.

MR NEWLINDS: Correct, and – yes, and it just seems to me that practically properly cures the prejudice that I point to.

HIS HONOUR: Well, in that regard then – well, first of all I should hear Mr Lloyd about that suggestion.

MR NEWLINDS: Of course, the other point is that judges keep telling us that they do not like making findings of law sort of without the factual underpinning.

HIS HONOUR: Quite, quite.

MR NEWLINDS: So it would be better if the Full Court has all the information so that they can decide the law - - -

HIS HONOUR: That is certainly true. Mr Lloyd.

MR LLOYD: I thank my friend for the suggestion. No, I have no difficulty with that suggestion.

HIS HONOUR: All right. Well, Mr Newlinds, how long then do you require before making a response as to whether or not your side wishes to take issue with the factual matters in Ms Deane’s affidavit?

MR NEWLINDS: Could we have two weeks? I have actually lost track of the dates – could we just notify within two weeks the Registry?

HIS HONOUR: That is – that might be after the - - -

MR NEWLINDS: 5 October, my learned friend says.

HIS HONOUR: On or before 4.00 pm on 5 October - - -

MR NEWLINDS: And we will identify if there are any facts in issue and if so which ones they are.

HIS HONOUR: So by 4.00 pm on 5 October your side will notify all the other parties – the parties to this reference – as to whether there are factual matters in the affidavit of Ms Deane to which you object.

MR NEWLINDS: Yes.

HIS HONOUR: Yes, Mr Lloyd.

MR LLOYD: Can I ask you to indicate, as I have no function at that hearing, it may be that the Commonwealth takes an entirely different view to me - - -

HIS HONOUR: Well, it may be that you will have a function as the contradictor of facts.

MR LLOYD: True, but what I was going to say is if the - - -

HIS HONOUR: Do not talk yourself out of a brief, Mr Lloyd.

MR LLOYD: What I was going to say is if the contradictor on law does not think that fact is relevant, then it probably disappears whatever admission is made.

HIS HONOUR: Well, we may have to cross those bridges when we come to them.

MR LLOYD: So, do I understand then that the effect of that is that exhibits 18 and 19 can be taken to be in evidence and are uncontroversial - - -

HIS HONOUR: Yes.

MR LLOYD: - - - and the rest of the affidavit I can cross-examine on if I want - - -

HIS HONOUR: Yes.

MR LLOYD: - - - but it otherwise is in a level of abeyance pending my friend’s indication.

HIS HONOUR: Yes.

MR LLOYD: Thank you. Well, that is all the evidence we wish to advance, I think, your Honour.

HIS HONOUR: Very well. Mr Newlinds.

MR NEWLINDS: Your Honour, before I read my affidavits, would it be helpful if I just open and outline the factual matters which I am going to contend for?

HIS HONOUR: Sure.

MR NEWLINDS: The first one will be that at the relevant time, which we think is 8 June which is the day the nomination form is actually lodged, Senator Roberts did not believe he was a British citizen. The cases often use the word “no”. “No” is a difficult word, of course.

HIS HONOUR: Well, knowledge – human knowledge is actually a spectrum - - -

MR NEWLINDS: Of course it is.

HIS HONOUR: - - - going from absolute certainty to the faintest suspicion.

MR NEWLINDS: Exactly, and of course, some people would say we do not know anything. Not speaking for your Honour, of course, but for the rest of us. But his position is he did not believe he was a British citizen, but self-evidently he suspected that there was a possibility that he might be, that is why he wrote the emails. Our learned friends, as we read their opening document, are going to contend that what the evidence should persuade your Honour of is that he knew that there was a real possibility.

Now, assuming that real possibility is something higher than a suspicion that he might be, there is a contest there. Now, where that goes on the ultimate hearing is not a matter for your Honour at this stage, and whether there are gradations of knowledge or belief in this area of the law is something that has not been explored. In other words, if one was in equity, one would talk about lawful blindness and the various steps. If one was at common law, direct knowledge is not always necessary either and the questions of notice are in issue. That will all be a question for the final hearing, as I understand it. But the finding of fact we will seek is that he did not believe it but that he suspected he might be.

HIS HONOUR: Do I take it from the note that you sent yesterday that you do not contest that he was a British citizen?

MR NEWLINDS: We do not contest that he was a British citizen at the relevant date. The basis for that as agreed by the experts is because his father was born in Wales and was a British citizen, so he is a British citizen by descent. But he did not know that, or to use a more helpful word, he did not believe he was, and never had and he always thought he was Australian and your Honour has read the affidavit. So that is step 1.

Now, as I understand it, the Attorney-General’s position in relation to everyone else who just says “I did not know” is that they are all fine because there is a subjective element to the proper construction of section 44 and there is going to be common ground between the other parliamentarians and the Attorney-General/Solicitor-General that they all pass muster. So we, of course, are trying to get ourselves into that same category.

If we do not get into that category and if we have a level of knowledge sufficient to mean that we knew, then we seek to invoke what the various Justices in Sykes v Cleary spoke about in that decision. Now, again, I agree with what your Honour said and what my learned friend has said. Whether those steps were reasonable or not if we had a jury that would be a jury question, but of course the jury would be instructed by the judge what reasonable steps in the context of this area of law meant.

HIS HONOUR: Reasonable in relation to what?

MR NEWLINDS: Yes, so it is a tangled-up question of fact and law and it would not be helpful for your Honour to try and decide that now without hearing full argument. Of course, the rest of the Court might not agree with your Honour. So we think that all your Honour is required to do and should do is simply make findings as to what he did do and, of course, what he could have done, and it is obvious what he could have done – he could have done what his wife did eventually – but also to make some findings about the circumstances that he was in in relation to the sort of things the Justices in the High Court talk about and we would ask your Honour to make some findings about the level of connection he had with the United Kingdom. Justice Deane suggested that that would be a relevant factor and the like.

Then what he did and what he could have done all then just gets sent to the Full Court to make a consideration as to what that means, having regard to the Court’s decision as to what the law actually is. Of course, if we are right and we did not know, or did not believe, then you do not get to reasonable steps, we think. Having said that, I have four affidavits - does your Honour want to take them all now or just witness by witness?

HIS HONOUR: Well, you may as well read them all. I understand that two are to be cross-examined.

MR NEWLINDS: Correct. Two are to be cross-examined, two are not. So the first is the affidavit of Senator Roberts. His name is Malcolm Ieuan Roberts and his affidavit was sworn on 8 September 2017.

HIS HONOUR: And filed on the 15th.

MR NEWLINDS: And filed on – mine has a stamp that says filed on the 8th but I - - -

HIS HONOUR: The one I have is stamped “Filed on 15th”.

MR NEWLINDS: I see. I cannot explain that, your Honour. So long as it is sworn on the 8th. It has an exhibit that is called “MIR-1 to MIR-28” which mine is in a separate folder, I do not know if your Honour’s is.

HIS HONOUR: Mine says it is sworn on 15th.

MR NEWLINDS: Your Honour is right. Luckily I have not said anything further. Can I read the affidavit of the 15th? I understand from my learned friend’s note that his position is that it is not his role to take objections; he accepts that everything is potentially relevant. The next affidavit is by Senator Roberts’ brother, Peter Nigel Roberts. It was sworn on 4 September and filed on the 6th, I hope.

HIS HONOUR: Filed on the 6th?

MR NEWLINDS: Yes. Then there is an affidavit of Christine Burk Roberts, sworn on 5 September and filed on the 6th. She is the wife of Senator Roberts. Finally there is an affidavit of Senator Roberts’ sister, Barbara Lynne Roberts. Hers was sworn on the 8th and filed on the 8th. My understanding is that Senator Roberts is required for cross-examination, his sister Barbara is required for cross-examination and the other two deponents are not. If it is convenient, your Honour, I will call Senator Roberts first.

HIS HONOUR: Yes. Thanks, Mr Newlinds. Call Senator Roberts.

MALCOLM IEUAN ROBERTS, sworn:

MR NEWLINDS: What is your name?---Malcolm Ieuan Roberts.

Are you a Senator for the State of Queensland in the Parliament of Australia?---Yes.

What is your address?---[redacted] Queensland.

Thank you. For the purposes of this case did you swear an affidavit?---Yes.

I will not dare ask you what date you swore it but it was some time in September, was it?---Yes.

Yes. Thank you. Can I with leave ask one question, going to the question of the Google searches. Have you been in Court this morning, Senator Roberts?---Yes.

You heard the discussion about where you might have found the various addresses you used on the emails in May and June. Were you listening to that?---Mm, yes.

Do you remember what searches you made and where you got the information about those addresses from?---No, I don’t.

Is the best you can say that you did it by searching, using a search engine in a computer?---Yes.

Do you know what search engine you usually use?---We usually use Google.

Thank you. I have no further questions, your Honour.

HIS HONOUR: Thanks, Mr Newlinds. Yes, Mr Lloyd.

CROSS-EXAMINED BY MR LLOYD:

MR LLOYD: Senator Roberts, can I ask you some questions in relation to your affidavit?---Yes.

The version of it I have is 8 September but I understand it was resworn on 15 September, with an extra page. Is that your understanding?---That is my understanding.

Are you aware that on 24 August 2017 the Chief Justice of Australia made orders that allowed you to file and serve an affidavit in these proceedings?---Yes.

And that order identified a range of issues that should be addressed in the affidavit?---Yes.

Did you consider the terms of that order?---No.

Had you included in the affidavit evidence about all the matters you considered to be important in these proceedings?---Yes.

And you reflected carefully upon your affidavit evidence to ensure that it was accurate?---Yes.

You tried to make the affidavit as comprehensive as you could about the matters that you considered to be relevant?---Yes.

You understand that these proceedings are relevant to determining whether you are eligible to be chosen, or were eligible to be chosen, as a senator under section 44(1) of the Constitution?---Yes.

These proceedings are important to you?---Sorry?

These proceedings are important to you?---Yes.

Have you seen the affidavits filed by your solicitors made by your brother, your sister and your wife?---No.

Are you familiar with the letter of the President of the Senate which transmitted various questions to this Court?---No.

Are you familiar with a letter from Senator Di Natale and some documents attached to it that form part of the President’s referral to the Court?---No, not that I can recall.

Perhaps I will show you that material. There is a copy for the witness and a copy for the Court?---Thank you.

I am hoping that the top document there is a letter addressed to the Principal Registrar of the High Court and signed by Senator the Hon. Stephen Parry. Is that what you have?---That is what I have, dated 10 August.

You have not seen that letter before?---No.

Then over the page, or perhaps two pages – I am not sure how it is done in your bundle – there is a letter from Dr Richard Di Natale. Have you seen that letter before? It is apparently page 11 of the bundle that you - - -?---No.

I note on that letter it is copied to you. Certainly you are one of the addressees of the letter. Are you saying that Senator Di Natale did not even send it to you?---I can’t - - -

HIS HONOUR: I am not sure that the Senator has the right page.

THE WITNESS: There is nothing - - -

Do you have page 11?---Yes, I have page 11.

So if you see there the date, it says 9 August?---cc, yes.

And then there is “cc Senator Roberts”. Do you have no recollection of receiving that letter?---I can’t recall the letter but I can recall some of the – seeing some of these attachments.

Do you recall - - -?---Yes, I can recall seeing some of these attachments.

Do you recall seeing them as a result of receiving the letter or you recall seeing them because you had access to them in your own personal life?---They did come through the internet, from memory, through the email service. I can’t recall seeing the letter; that doesn’t mean I didn’t get it.

Okay, if you go through that bundle there is a statutory declaration, I think, by you, which is on page 29?---Mm, yes.

Did you make that statutory declaration?---I did.

When you made the statements in it did you believe each and every one of them to be true?---Yes.

Do you still believe the content of those affidavits to be true? You should read them carefully so that you – I am sorry, the stat dec. There are four statements, in particular the first and the second statements. Do you believe that they are still true?---Yes, apart from the use of the word “decent” instead of “descent”.

Over the next page there is a document which I understand to be known as a tweet. Is that a message that you sent?---That is a message that was sent from my Twitter account and it was sent by my media adviser.

I see. If you read it now, does that represent the views you had on 26 October 2016?---I am still not clear of my citizenship in the past.

Even after having read the expert reports in this matter you still - - -?---I haven’t read the expert report, but in all my dealings with the British Government it is still not clear in any way that I had citizenship. And that includes the Home Office.

I will come back to that but I do not think you quite answered my question. As at the time you sent it – we can deal with as at now in a moment – or sorry, it was sent on your behalf - - -

MR NEWLINDS: I object. He has not agreed that it was sent on his behalf. He has agreed it was sent on his Twitter account by someone else.

MR LLOYD: Well, I will withdraw the question.

HIS HONOUR: By his media adviser.

MR NEWLINDS: That is right.

MR LLOYD: At the time these were sent, do you consider – at the time this two-sentence tweet was sent, do you consider that it accurately reflected your views at that time?---I wouldn’t be certain. I would not have used the word “never”. Apart from that I – I agree with it.

Now, thinking about the current circumstances, so, having regard to everything that’s happened since 26 October including any discussions you’ve had with lawyers or anyone else, do you still believe those statements to be correct?---As I just said, I don’t agree with the word “never”, but the first I have heard that my lawyers agree with your expert was this morning when my barrister was responding to you.

Okay. So when you say you don’t agree with “never”, what better word would you put in?---Well, I make statements that are truthful. I would say I believe I have never had citizenship of another country, I would be happy to say that, because no one has ever shown me that I’ve had citizenship of another country. But I’m aware that there are various other requirements, so I can’t rule it out altogether. It would have been my firm belief at that time that I had not had citizenship of another country.

I understand. And I think you said that you haven’t sought to access either of the expert reports on the question of your citizenship that have been produced for these proceedings?---Correct.

So as you indicated, your senior counsel this morning has said that it’s not in dispute in these proceedings that you did have British nationality. Do you accept that now?

MR NEWLINDS: I object, your Honour.

HIS HONOUR: Yes, Mr Newlinds.

MR NEWLINDS: How I run the case is a matter for me. It is not a matter for instructions and it is not fair to ask the witness whether he agrees with the concession I have made as a matter of his subjective state of mind in circumstances where he has never had the opportunity to discuss it with me.

HIS HONOUR: Mr Lloyd.

MR LLOYD: Well, your Honour, I am asking whether Senator Roberts is accepting the position, having heard what his own lawyers have said, that he now accepts that he was a British citizen. I think that is relevant to his state of mind issues.

HIS HONOUR: All right.

THE WITNESS: Could you ask the question again, please?

MR LLOYD: Having heard everything including what you have heard in Court this morning, do you now accept that you were a British citizen from – by descent from birth?---I will await my – having a conversation with my barrister on that.

So, is that to say you don’t yet accept it, but you may come to accept it?---I’ll have a conversation with my barrister on that.

Okay.

HIS HONOUR: Senator Roberts, before you obtained Australian citizenship, what citizenship did you have? What citizenship did you believe you had?---Well, I believed I was always Australian and only Australian.

But you didn’t come to Australia until 1962?---Correct, and I always travelled under my mother’s passport.

I see?---Until, your Honour, I got my own passport.

MR LLOYD: Is that the passport which includes you as the child with your mother on it - has an endorsement for you?---My mother’s passport, yes.

You’ve seen that passport now?---Yes.

You know that there’s an endorsement on it which says that you had an acquired Australian citizenship?---Yeah, I can’t recall that, but I think you’re right. Yes, you are correct.

So, to the extent that your reason for thinking that you were always Australian was that you travelled on your mother’s passport, now that you’ve seen your mother’s passport would you accept that that’s not a sound basis for thinking that you were always Australian?---Having seen it recently, that – that clause you point to vindicates what you say, yes.

You would accept, wouldn’t you, that whether or not you have citizenship of a country is at least in part a question of the law of that country?---No, I’m not qualified to answer that question.

Okay. So you have a view about – you’ve expressed that you’ve had this view about your being Australian. What is it that you think gives somebody the quality of being an Australian citizen?---In my case it was the conversations in our family and the way we treated each other, that I was only ever considered Australian and I only ever considered myself Australian. I was raised that way and that’s the way I believe.

I see. So your feeling that you were always an Australian citizen and not a British citizen is premised upon the conversations with your family. Is it premised on anything else?---Mainly the family, yep, I can’t think of anything else at the moment.

I think in your affidavit in paragraph 9.14 – do you have a copy of your affidavit?---No, I don’t.

Perhaps we can give you a copy of that?---Thank you.

9.14 - there you say, “I considered myself Australian and only Australian” - - -?---Excuse me a minute, I can’t find 9.14 yet.

Sorry, it’s on page 9 at the top of the page?---9.14, yes.

So I just want to get a sense – you identify there three reasons upon which your view is based, and I just want to understand, they are the three matters that you principally or perhaps exclusively rely upon – I’ll withdraw that. They’re the three matters that you rely upon for the view that you were Australian and only Australian. Is that correct?---Yes.

And they are that you grew up in Australia, and by growing up in Australia should that be understood as meaning after you came here at age seven?---Correct.

And then the “our family culture”, is that to be understood with the balance of your affidavit referring to, for example, the way you interacted with your father in relation to sporting events and you supporting Australian teams and him supporting British teams?---And his sense of humour, yes.

And his sense of humour; thank you. And the fact that you had always had an Australian and only an Australian passport – and when you say always had an Australian passport, you don’t mean your entire life?---No, I had always travelled under an Australian passport.

Yes. So you had an Australian passport – I think your affidavit indicates after you became an Australian citizen you travelled and you got an Australian passport in I think 1979, is that - - -?--- t would have been about 79.

And prior to that you didn’t have your own passport of any description?---Mm.

But when you were a child you travelled on your mother’s passport?---Mm.

And that’s the passport which indicates that you’re not an Australian citizen?---I didn’t see that passport until after the nomination.

I know, but you accept that’s what it says?---Correct.

So you believed that because you travelled on an Australian passport that meant you were Australian – or you travelled on an endorsement on your mother’s Australian passport you believed that that meant you were an Australian citizen?---Yes, and I can also recall entering Britain on two occasions and being treated as Australian, and I recall entering the United States and Canada, Japan, Korea, China and always being treated as an Australian citizen.

Can I just expand upon what you mean by that? When you say you were treated as an Australian do you mean that – well, first of all, are they all instances when you travelled on your own Australian passport?---Correct.

And when you say treated as an Australian you mean that you acquired visas for those countries and had them put into your Australian passport?---Correct, and also entry points into the various countries.

Yes. So when you say they treated you as an Australian, prior to travel you went to the relevant consulate or embassy and got a – and applied for and got a visa for that country?---With the Indian entry I did. With the American I did. Canadian I’m not sure about. British I’m not sure about prior to travel.

And so is it fair to say - - -?---Japan I did.

Would you accept that you were treated, to use your words, as Australian because you were presenting an Australian passport?---And my arrival itself, yes.

So, for example, when you went to India you didn’t say to them, I’m an Indian citizen, I don’t need – I don’t need a visa, did you?---No.

And similarly when you went to the United Kingdom you didn’t say, I’m a British national, I don’t need a visa?---No.

No. So when you say they treated you as Australian you relied upon your Australian citizenship and they treated you according to the way you presented yourself?---Correct.

So this morning there was some discussion of an affidavit by Ms Deane and in that there is a – it purports, in any event, to be a transcript of a press conference that you did with Senator Hanson. I wonder if I can give you a copy of Ms Deane’s affidavit and I’ll turn up the page. For your Honour’s sake, it is page 51. Now, this is a relatively recent event, 9 August 2017?---Excuse me, what day of the week would that be?

I can find that out for you. Wednesday?---Thank you.

Do you recall this press conference?---Was it held with many different media companies?

That’s my understanding, yes?---Was it held in the garden at Parliament House?

That’s my understanding, yes, Senator?---Then most likely I do, around – yes, 12.48, yes.

Can I take you to page 55?---Mm.

There’s a question in the middle of the page, I don’t know who the questioner was. There’s a relatively offensive beginning to the question, and I’m not embracing that at all. But there’s a reference there which says “Why did you say you were never a British citizen when official documents show that you were? When you were 19 years old you signed that you were British”. Now, I’m going to suggest to you that when you were 19 you did sign a document which allowed you to become Australian. You know about that document? It’s in your affidavit?---I have no recollection of that, but since seeing the document from BuzzFeed, I think, I recall – I can see my signature and the rest of the material was filled in by my sister.

Okay. Now – but, anyway, when he asked this question you in effect knew what he was talking about, what the questioner was talking about? He was referring to that document?---Mm.

And then so he says, you signed that you were British – sorry, you just said “aha”, should I understand for the transcript that that was a “yes”? You did understand that he was referring to your notice to become an Australian citizen?---Yes.

And then he asked “You signed that you were British” and then your response to that, I want to suggest to you, was a fairly specific one. You didn’t simply just embrace what he said but you in effect corrected him “I was a citizen of the UK and colonies”?---That’s correct, that’s what I said, and that was in reference to what I have subsequently seen on the document that I couldn’t recall seeing before, and on that it says “British” in brackets, “UK and colonies”.

Yes. And so what I’m suggesting to you is that that’s you at that point in time apparently accepting that you were a citizen of the UK and colonies?

MR NEWLINDS: I object to that.

THE WITNESS: No.

MR LLOYD: I withdraw that question.

Could you explain why it is an acceptance, why the words don’t mean what they say?---Because, first of all, I hadn’t seen that and signed it that way, and if I had seen it at the time – and I’m only speculating here – I would have said to my father “Why is this? I’m Australian”. But my father had very good skill, he was very accurate, and when he asked me to sign something I usually did without checking with him.

Well, we’ll come to that document, but I’m not really talking so much about that document, I’m talking about your state of mind on 9 August 2017, because you’ve said now that until this morning at least you never really accepted that you were a citizen of the UK, but here you seem to be accepting that you were.

MR NEWLINDS: I object to that. It is just not a fair reading of the proper transcript, in my submission. The question is “You signed that you were British”, and the response is “I was a citizen of the UK and colonies”. That is him correcting what it is he signed, not a statement of what his state of mind might have been, in my submission. My learned friend is doing it without taking the witness to the actual document; that is a matter for him.

HIS HONOUR: Well - - -

MR NEWLINDS: But it is an unfair reading of this transcript, which itself is not put forward as a necessarily fair and accurate transcript, if you look at the footnote.

HIS HONOUR: Well, he is being asked about a statement attributed to him in the transcript, the statement being “I was a citizen of the UK and colonies”.

MR NEWLINDS: Yes, but it is not a statement. It is an answer to the question that he has just being asked. In my submission, a fairer and proper reading of the question and the answer is he is correcting the questioner, he has put to him “You signed that you were British” and saying “I signed that I was - - -

HIS HONOUR: Perhaps, Mr Lloyd, you could ask him if he understands there to be a difference.

MR LLOYD: Perhaps I ask you, Senator Roberts, when it was put to you, you signed that you were British and you responded “I was a citizen of the UK and colonies”, did you mean by the sentence “I was a citizen of the UK and colonies” that you were accepting and stating that you were a citizen, not “were” at that time but you had been a citizen of the UK and colonies?---Well, as you can see below that it says, we all know that back in those days, and it went on. I honestly believe that that was something to do with the colonies and Britain – sorry, India and Australia had been colonies - and somewhere else in this transcript I’m looking for, at the same time - remember I have got many cameras shoved in my face and people saying all kinds of accusations, I also said - I believe it was this interview - that I am only British and have only ever been British. I clearly do not believe that statement. It was just an error. This is under - - -

I think that is in the next paragraph you say “I have always thought that I was British but I was Australian”?---Yes, that is the error I made there, and what I’m saying is here I hadn’t given this much thought at all and what I can recall of that document after seeing it for the first time is that I signed a document saying that I was a citizen of the UK and colonies, and to me that would have meant Commonwealth. So, I don’t accept that that was British at all.

So, in your view, when you were saying you were a citizen of the UK and colonies, is it correct that you thought that that included being a citizen of Australia?---Yes.

I see?---I have only ever thought that I was Australian until I heard in the Court this morning.

If I can take you back to that – now you were born in India in 1955, is that right?---Yes.

Sometime thereafter, but while you were in India, an endorsement was added to your mother’s passport. Now, if your Honour has the affidavit of the witness, it is – I am going to take him to exhibit MIR-9, do you have that, Senator?---Yes, I do.

On page 35 of the sort of photocopied document at the top of the page – up the top of the A4 page – do you have that page?---Page 35? Yes, I do.

Then, looking at it sort of sideways, on the left-hand page, there is an endorsement by the Australian Government Trade Commissioner in Calcutta at the bottom of that page, can you see that?---Yes.

Then there is your name there and your date of birth. Is that correct?---Yes. I cannot see my date of birth.

Just where the stamp has the word “Trade” it says “date of birth” above it and 3 May 1955 below it?---Thank you.

Then, there is a passage which says “Malcolm” and then - - -?---Ieuan.

Ieuan?---Ieuan, yes, Roberts.

Ieuan Roberts, is the child of an Australian citizen but has not acquired Australian citizenship?---Yes.

So, to the extent that you thought at the time that that was indicative of you being an Australian citizen, do you now accept, having seen this, that it is not indicative?---Say that again.

To the extent, as I understand your evidence, you have indicated that you have for a long time, one of the key points that led you to think you were an Australian citizen always, was you travelled on your mother’s Australian passport, is that correct?---No, that’s not correct in terms of the past. After I saw this passport, then that’s when I learned I had travelled on mum’s passport, but prior to that it was just the family conversations, mum, dad, always, that’s all I had ever been told I was.

So, travelling on your mother’s passport wasn’t important to your belief prior to you seeing the passport?---Correct.

Then, you saw the passport and you saw that you were included on it and then you thought that’s, in a sense, another reason why you were always Australian?---This is after this came to light last year.

Yes, but is that correct, that having seen that you travelled on it that, in effect, reinforced your view that you were Australian?---Correct.

Do you not think that the endorsement that you’re not – that you have not acquired Australian citizenship, shouldn’t that have persuaded you that you - that this was actually indicative of you not being an Australian citizen?---I actually asked my sister who’s more accurate on these kinds of things than I am – what was our citizenship beforehand then? She said “stateless”.

I see.

HIS HONOUR: Sorry, was that stateless?---Stateless.

MR LLOYD: But you hadn’t thought you were stateless, had you?---I thought I was always Australian.

Yes. And that was, to make it clear now, in that paragraph 9.14 you identified three things that I think you indicated made you an Australian. The first one was having grown up in Australia after the age of seven?---Mm.

The second one was the family culture?---Mm.

And the third one was having always travelled on an Australian passport?---No, Mr Lloyd, it says “and the fact that I had always had an Australian passport and only an Australian passport”.

Sorry, that you had always had an Australian passport. But I think you accept what I asked you before, you hadn’t always had an Australian passport?---No, that’s correct, but the only passport I’ve ever had was Australian.

I thought I had understood you before to indicate that - was travelling on your mother’s passport was significant but is that wrong?---That was only significant after my sister showed me this last year – late last year.

I see. So, prior to that and, in fact, at all relevant points in time – if the relevant points in time end with you being elected, from that time and backwards, you having travelled on your mother’s passport was not an important factor for you?---No, I didn’t know about it at the time.

Having seen the passport, you think it supports your having only ever been on Australian citizenship because you travelled on your mother’s passport?---Well, are you talking about prior to the nomination still?

No, I’m talking now - I said having seen it, so having subsequently seen your mother’s passport, that led you to thinking that that supported your view that you had always been Australian?---That supported my view, yes.

That is so, notwithstanding that it says that you hadn’t acquired Australian citizenship at that time?---Correct, correct. Once I saw that then that caused me to think differently, of course.

How did you think after seeing that?---Well, I wondered then. Remember, this was shown to me late last year, September I think, something like that, so that caused me to wonder.

Now, I’m – sorry, I’m confused again. I must have misunderstood your evidence. So, you only saw that passport at all late last year, is that correct?---Correct.

Then, when you saw the passport, I thought you had said that reinforced your view that you had always been Australian?---Correct, because I had travelled on my mother’s passport, and then I saw this and that raised me then to say, what was I?

I see. So you didn’t – so you saw the passport without seeing this endorsement. It wasn’t you didn’t see it at the same time you saw the passport?---It took me a while to go through it all.

I see. Now, can I just clarify something. I’m not trying to be tricky here but I think there’s a mistake – just a technical mistake in your affidavit. I just want to give you a chance to fix it. If you go to paragraph 4.8, you refer there to an exhibit MIR-6. There is a copy of a certified copy of a United Kingdom High Commission - - -?---Excuse me, Mr Lloyd, 4.8?

Paragraph 4.8?---Mm.

There is a reference to exhibit MIR-6 being a copy of a United Kingdom High Commission Register of Births deposited, dated 30 May 1957?---Mm.

If you go to MIR-6, I want to suggest to you that that’s not what that document is and that this document is actually your birth certificate, and I’m not – I’m really not trying to – I’m just trying to assist the Court by clarifying what the documents are. If you go to MIR-1?---Yes.

I think that’s the document you call MIR-6. You see in the bottom left-hand corner of MIR-1, it is something which was registered on 30 May 1957, whereas the document at MIR-6 seems to be dated 18 May 1955, which is the date you attribute in paragraph 3.3 to your birth certificate?---One is a certified copy of an entry in the United Kingdom High Commission Register of Births and the other one is a certificate of registration of births.

Yes, that’s so?---I’m not an expert on these matters.

It’s just that you put an affidavit in describing them in particular ways and I think – possibly not you, possibly somebody who’s working for you, has just put them in the wrong slot, but I’m just trying to clarify it. What I want to suggest to you is that the one which is MIR-6 is actually a document dated 18 May 1955, can you see the bottom left-hand corner of that?---Yes.

And so that is in fact – and it’s called at the top “Certificate of Registration of Birth”?---Mm.

And then in paragraph 3.3 of your affidavit it says that the certificate of birth was dated 18 May 1955. So what I’m suggesting to you is that the document under MIR-6 is in fact your birth certificate?---Okay, that makes sense with the dates.

Okay. And do you recall which of these two documents you used when you applied for your Australian passport?---No, I don’t. I can recall a third document as well which was a handwritten – in investigating this recently, a third document which is a handwritten version of the document that’s currently on page 15. So there are three, but I think I used the Indian one, but I can’t recall.

Okay. Well, would you accept that the document - - -?---I’m pretty sure I used the one on 25 but I can’t be certain – page 25.

Is the third document you just referred to the document which is at MIR-5?---That is the – it should have writing that’s identical with the document at page 15. I only realised that the other day. Yes, I think it is that document.

Thank you. I don’t think it’s going - - -?---But from memory – from memory, to answer your question, which one I used in making application for passports, I think it was the – under MIR-6, but I can’t be certain.

Thank you. This all tends to show that your father when he was in India took some effort to get you registered in England, had your birth registered in relation to him in England, you’d accept that?---The one on page 25, MIR-6 shows that I was born in Sanctoria Hospital which confirms my understanding. My name, my parents’ names, my father’s occupation, engineer I think, plus some other dates and initials.

Yes, I accept that, but if one looks at, as it were, all the documents from MIR-1 to MIR-6, one is the result of the – is the certified copy of the entry in the United Kingdom High Commission register of births. That’s – it’s under MIR-1 anyway?---Mm.

Then MIR-2 is a letter from your father to the High Commission in relation to having that registered. And then MIR-3 is a response to that with some information about – say, in the second paragraph there “A form of application for the addition of the child to a United Kingdom passport is enclosed. The child can be entered on the passport of either parent but the father as legal guardian, must sign the application form” – that’s the application form for the UK registration. Then at the bottom, your name is still included in the High Commissioner’s records of citizens of the United Kingdom and colonies. That is the UK and colonies citizenship?---Mm.

Then under MIR-4, there is then a further response in relation to that. In the middle paragraph it says “The child’s name has been included in the High Commissioner’s Record of Citizens of the United Kingdom and Colonies”?---Mm.

So that, I want to suggest to you that your father actually, you know, went to some effort to have you registered as a citizen of the United Kingdom and colonies?---He made some – he went to some effort, my father was fairly thorough in getting my name registered. I didn’t know the significance of that. I didn’t actually read these documents in detail until recently because they were just a pile of documents for me. The only thing that mattered was the birth certificate. It also is not clear – I’ve read these many times in the last few months, it’s not clear at all whether my name was registered on my father – next to my father’s name as a – because he was registered in India, even though he was a British citizen, he was registered as a British citizen in India. That is my reading of it. So it’s not clear whether my name appears as me being a citizen or my name appears as a son of his on his registered – on his registration in India.

So if one takes that page on page 21, you don’t think that’s an indication of your name being included in the record of citizens of the United Kingdom and the colonies for yourself?---Initially I thought that’s the way of looking at it and then, secondly, I thought it could be after I read further of these letters. My father had in one of his letters to the British officials in India – I think it was India – in the reply the official reminded him that he is still registered as a UK citizen in India and when I read this, the letter on page 21, then I wonder whether I was registered as a citizen or registered as the son of a citizen. But I hadn’t seen this document prior to – I hadn’t read this document prior to my nomination.

You would accept that the second paragraph doesn’t say that you’re entered on the register, it says “your name is entered on the register”, it doesn’t say you’re entered as the son of somebody who is on the register?---The child’s name has been included in the High Commissioner’s record of citizens of the United Kingdom and colonies, that is correct. That’s another interpretation that I have taken since. So one of the significant things for me is that in all my correspondence with the UK prior to being nominated and after being nominated, including the RN form, no one from the United Kingdom has ever said that I am British, no one, including the Home Office.

Well, they said at least that you appeared to be British?---It appears I have a claim to citizenship. That’s what it says. It doesn’t say it appears that I’m British; it says that I have a claim. On the website for the RN form, in going through that just recently, I actually followed the yes/no procedures, and it says that those whose mother was not a British citizen on 1 January 1983, from memory, are not British. So then I’m thinking “I’m definitely not British”.

Perhaps I will move on. Can I take you to – in relation to your mother’s passport, can you indicate how you got a copy of it?---My wife showed me the copy after, and I understand she received it from my sister.

And when was that?---I’m guessing September/October of last year.

And when you received it did you read it then or you read it later?---The passport?

The passport – your mother’s passport?---The main thing that jumped out first of all was that it said “British” on the front cover, and I went, “Oh, no”. That’s – then it was explained to me that was common in those days, but I didn’t read it in detail; I read the bit that the son had been included. This had all occurred well after nomination.

Having ultimately read that endorsement, which has an Australian official with a stamp saying you haven’t acquired Australian citizenship, isn’t that enough for you now to accept that you haven’t always been Australian?---Yes, yes.

Do you accept that you would have accepted that view when you read that endorsement?

MR NEWLINDS: I object to that, your Honour. When he was a baby?

HIS HONOUR: No, the question is whether he read the endorsement.

MR LLOYD: The evidence has just been he read it in September 2016.

MR NEWLINDS: Yes, I see.

MR LLOYD: I am saying when you read that endorsement at or around September 2016 did you, from that point onward, accept that you hadn’t always been Australian?---I certainly wondered. As I have said, I asked my sister “What was I?” and she responded “Stateless”. We were all stateless.

So that means you do accept. I mean, if you wondered - - -?---Mm.

I think you just said to me a moment ago that you did accept, after reading that, that you hadn’t always been Australia. Is that correct?---That’s correct, but I had always believed I was Australian.

Yes. Can I take you to MIR-8. Do you have that there?---Yes, I do.

Can I ask you to read it?---“Notice of desire to become an Australian citizen. In pursuance of section 11C of the Australian Citizenship Act 1948-1973. I Malcolm Ieuan Roberts of [redacted]” – there is something crossed out – “the responsible parent or guardian” – that’s crossed out – “hereby give notice that I desire” – crossed out – “the said” – “desire” – that’s crossed out – “to become an Australian citizen and I furnish the following information concerning the said” – that’s crossed out – “date of birth 3rd May 1955, place of birth Disergarh, West Bengal, India. Citizenship” – in brackets there’s the word “British” and beside it is “UK and Cols”. “Date of arrival, October 1962. Absences from Australia, nil. Dated this 8th day of May 1974”. My signature.

Thank you. So you would accept – well, in effect, there is one sentence in this form, which is you saying you desire to become an Australian citizen and then providing four pieces of information?---Correct.

And this is the notice that you gave to the Australian Government in 1974?---Correct.

I think you have indicated that you’ve signed it. The date of birth is yours?---Yes.

And the place of birth is yours?---Yes.

The date of arrival was yours?---Yes.

And the citizenship, is that not also yours?---From this form, yes. The UK and colonies.

It says “British” and then in brackets “UK and colonies”. I think your evidence in your affidavit is you do not recall signing or reading the form, is it not?---Correct.

But you accept that you signed it. When you say you do not recall signing or reading it, I take it that means you do not recall - - -?---I don’t recall reading it and signing it. I recall – I certainly don’t recall reading it and signing it, but it is my signature.

Yes, but you’re not saying you didn’t read it. You’re just saying you cannot recall whether or not you read it?---Correct.

Do you accept that you would be likely to have seen it as an official document with the Australian stamp on it - the Australian coat of arms, I should say?---Yes, and my father would have said “Here, you just need to sign this”. That’s my speculation; I can’t recall anything about it.

Would you accept that if you were shown this you would have likely read at least the words “notice of desire to become an Australian citizen”?---It’s very difficult to say that because I was not home very often. I was more interested in playing football, studying and going out, and when I did come home it was to watch the football with my father and catch up with the family, and he would have just said “Here, sign this”. I have done that many times with my father.

But you don’t recall that happening, though, do you?---I don’t recall?

You don’t recall your father giving it to you to sign?---No, I don’t recall it.

So, as you said, that’s speculation; it might not have been what happened?---Correct.

Because the handwriting on it – correct me if I’m wrong – I understand it to be your sister’s handwriting?---That’s my understanding, because I can see the dots over the i’s have little circles instead of dots.

And she was, in 1974, 16 years old?---Yes.

Would you, as a 19-year-old brother, generally be in the habit of signing things that your 16-year-old sister had filled out for you with an Australian coat of arms at the top of it?---No, but if my father had said “Here, sign this,” I would have.

You might have signed it but would you have not at least read the one sentence contained in it?---As I explained in the affidavit, my father was very, very meticulous with his records, and the fact that Barbara wrote it out, if Dad had said “sign this”, I would have signed it.

If he had said that, but we don’t know that that happened?---Correct. We don’t know.

We are dealing with your speculation of your having no recollection of it. What I am trying to put to you is that a natural expectation is that, for a one sentence form, you would have read at least what the one sentence said?---With respect, my father would have presented this document to me. I would not have just signed something that my sister had given me, and I certainly would have asked – again, speculation – “What’s this about? Because I’m already Australian”, but I can’t recall any of that.

You do recall after getting your Australian citizenship you being – your father calling you in to show you that you’d got your Australian citizenship?---Yes, I can remember exactly where.

So - - -?---It was in the doorway into his bedroom.

So, that being so, you must – you must have known that you became an Australian citizen then because he was showing you your certificate. It was an important thing to be shown that you’d become an Australian citizen?---From – from memory that is – it’s called an evidentiary certificate. I can’t find it here. And I just thought it was for – I don’t know what I thought at the time. I can recall him giving it to me, and then I think he filed it.

Yes, you recall him giving you the evidentiary certificate but you can’t recall anything about the form – the notice - the rest is your speculation. But you prefer a version of speculation whereby you didn’t read the one sentence form; rather the one where you did read it?---As I said, I signed whatever my father put to me because he was very, very good at paperwork and I knew he loved me and cared for me enormously and that he wouldn’t steer me astray. The only time I didn’t was when I argued with him about various things later on in life.

Yes, but as – I mean, I don’t want to repeat it, but just to clarify, you don’t have any recollection that your father put this document to you?---I don’t have any recollection of ever seeing this document, but clearly I did because I signed it.

Would you accept that if you had read the form, you would have understood that it was asserting that you were a British citizen, or a UK and colonies citizen?---If I had read it, yes, although I would have asked questions about what “Cols” meant because, you know, in those days, as I started to explain in the Sky News transcript, it was also Commonwealth. So I would have had questions about it, not come to straight conclusions about that, because I would have emphasised – my focus would have been more on the “Cols”. As I said, I’ve always thought I was Australian.

Would you accept that if you had read this document, you would have understood that you weren’t always an Australian citizen?---Yes.

Putting aside what’s there under “Citizenship”, you would have – you would have read the heading which is suggesting that you were becoming an Australian citizen?---Yes.

Now, on the same day I think you signed a second official document. This one is in – if you can go back to the bundle of materials from the President, or the President’s letter?---Mm.

And it’s – thank you – it’s on page 24?---Yes.

And so this is entitled “Application for an Evidentiary Certificate”?---Yes.

Do you have any recollection of this document?---No.

Do you infer that the handwriting is that of your sister?---I can’t see the circled i’s, circled dots over the i’s.

What about in - - -?---And it’s too neat for my writing.

What about in [redacted], the first [redacted]?---Yes, thank you. I’m guessing that it was my sister’s.

And also “Disergarh”?---Yes.

So your sister who was 16 years old at the time seems to have completed this form, one of which – one of the things she has to complete is your height. Do you think she would have asked you what your height was, for a government form?---I think everyone in my family knew my height. I’ve been teased about it for many years.

So, is that to say that – well, did you think your sister would have filled in a government form specifying your height without talking to either you or your parents?---Are you saying she didn’t talk to my parents?

I’m asking if she would have done it without consulting them?---No.

No. So you would accept that she’s likely to either have asked you what your height was or to have asked them what your height was?---Yes.

But you don’t have any recollection of this form or being asked anything about this form?---No.

When your father showed you the – this is your application for the evidentiary certificate - sometime later that was – that evidentiary certificate was granted and I think you already mentioned your father showed that to you?---Mm.

Did you keep it from that point on?---I can’t recall if I did. I know that it was part of – no, I’d be guessing, because I can’t be sure, but my father didn’t hand these kinds of documents over to me until I stopped travelling.

So your best guess is that you didn’t – that it was seen as an important document, that he would have kept it, at least for a period?---Yes, and it is evidence of my Australian citizenship, so I wouldn’t have attached much significance to it other than that it’s evidence.

So I want to put to you that at the time you filled in these forms - - -?---That I filled in these forms?

Or sorry, at the time you signed the forms, you would have read them at the time and that you would have, having read them, become aware that you were a British citizen in the UK and colonies category?---As I said, I haven’t read them, and I can’t see on this form application for an evidentiary certificate.

Sorry, I’ll be clearer. In relation to the two forms filled out on 8 May, so that’s the Notice of desire to become an Australian Citizen which indicates that your citizenship is British UK and colonies, or UK and cols, and the application for an evidentiary certificate, what I’m suggesting to you is that you are likely to have read them and you’re likely to have – or that you did read them and that you understood at that time that you were a British citizen?---No. So let me just understand your question. You said I would have been likely to have read it. You then said I did read it. No, I can’t recall that at all.

So, I’ll withdraw the question about likelihood, but I suggest to you that you – that you did read it and your – you have no recollection at all that you did that?---I disagree with your suggestion because I cannot recall reading these at all. As I said in my affidavit, I trusted my father enormously, with good justification.

Yes, but I mean, you keep saying that, and I don’t in any way mean to in any way impugn what you say about your father, but you’re entirely speculating that your father gave this to you?---Correct.

So you don’t know that that happened and you do not recall that he was involved in that way?---And I have said that in the affidavit.

Yes. If I move on to the next issue – perhaps if I take you to the evidentiary certificate again, which is in MIR-7. This is the document that is the document that your father called you into the room about when it was received?---Mm.

Now, it says “This is to certify that” – your name – “whose particulars appear hereunder, is an Australian citizen from the seventeenth day of May, 1974”. Now, wouldn’t you have understood that, when you read that, to indicate that you weren’t previously an Australian citizen?---The thing that jumps out at me at that page – so, no, I wouldn’t have, to answer your question. The thing that jumps out at me at that page is “evidentiary certificate”. This is evidence that I am an Australian citizen.

Yes. Then it continues, “This is to certify that” you, “whose particulars appear hereunder, is an Australian citizen from” a specified date?---Mm.

So it suggests that you were an Australian citizen from that date, not previously?---Yes, I can see that interpretation.

Are you saying you didn’t have that interpretation?---No, because my emphasis is on the word “evidentiary certificate”. It’s evidence of citizenship.

Yes, but doesn’t it - evidence is that you were an Australian citizen from that date?---Yes, I can see that interpretation, but I’m repeating my conclusions from that. This is now evidence. I now have a certificate, stating that I’m Australian. And that wouldn’t have registered too much with me because I already knew I was Australian.

But just to continue on, you were a citizen from that date “by virtue of the provisions of section 11C of the Citizenship Act”. I take it that you had no idea what section 11C of the Citizenship Act was?---I was 19 and more keen on football than filling out forms.

Perhaps I should ask you a bit about that. You may with some suggestion recall this; you may not. In 1974 Gough Whitlam was the Prime Minister. You recall that?---Yes, I do.

Do you recall the end of the White Australia policy?---I can’t recall an official end or a set date, no, I can’t.

No, certainly not a set date, but do you recall there being a suggestion that the so-called White Australia policy should end?---No, I can’t. I can remember discussion of it, especially after Arthur Calwell left. But I can’t put a timeframe to that at all.

I am going to ask you to assume some things, which you may not know but if it sparks a memory it might be helpful, it might not?---Okay.

Let’s assume that section 11C is a provision of the Citizenship Act which allowed citizens of various Commonwealth countries such as the United Kingdom to get citizenship simply by filling in a notice. No further assessment, you fill in a notice and it is received by the Australian Government or by the official representative and that gives you citizenship from the date of receipt. Now, let’s assume that’s the position. What I want to suggest to you is that that section - and assume this as well - that that section came to an end, was repealed with the repeal becoming effective in May – actually, 1 June 1974. So just a few weeks after you signed your form and then after that this special, easy way of becoming an Australian citizen was repealed. Let’s assume all of that?—Mm.

And that’s either true or not on the law and you don’t have to accept that. Do you recall at the time any stories or articles about British or Commonwealth citizens rushing at that time to take advantage of that before that opportunity went or your parents talking about taking the opportunity to become an Australian citizen before that was repealed and repeal was effected?---No, I do not.

Okay?---I can remember things like Gough Whitlam spending a lot of money on various things, but I can’t remember – my father and I having good discussions about that and enjoying those discussions together and agreeing, but I can’t remember anything about what you just said.

Now, if we can go back to your affidavit, paragraph 8.1. You indicate here that Senator Hanson contacted you “to further discuss” your interest to stand for the Senate? Do you see that?---Yes.

Can you recall when the earlier discussion or discussions were?---No, I’d say that’s an error there. That’s the first time she called. I know exactly where I was, with my son at that date. So that’s an error in the “further discuss”.

So the Court could proceed on the basis that that was the first ever discussion of that topic?---From my memory, yes.

Yes, certainly. Now, on or around 29 April 2016 you completed a form entitled “Application for Candidate Endorsement for Pauline Hanson’s One Nation Party”. That’s in MIR-10?---Yes.

Now, that form required you to state that you were aware of section 44 of the Constitution. Do you see that?---Yes.

And that you meet the eligibility requirements of the section?---Mm.

Now, you don’t mention in your affidavit any vetting of your eligibility by anyone involved with the One Nation organisation. Is that because, to your knowledge, they didn’t do any vetting of that; they just accepted the “tick a box”?---No one did any vetting with me, no.

Same with you, yes?---Sorry, no one did any vetting that I’m aware of with me.

Thank you. Now, in your affidavit you indicate that at or around that time you did read section 44 of the Constitution?---Yes.

You say that you did not consider that you were a citizen of a foreign power?---Correct.

Now, was that in part because you didn’t believe that the UK, as a Commonwealth entity, was a foreign power?---No, I – I believed I was only a citizen of Australia.

Okay. Did you at that time consider that it was possible or have any sense of understanding that it might be possible to become a citizen by reason of being born in a country?---It is – yeah, it was a possibility.

So at the time you filled this in you were aware that that was a possible way of getting a citizenship?---That was a possibility, by place of birth.

And would you, at that time, have also been aware that, at least for some countries, you can get citizenship through descent, through your parents’ citizenship. You can become a citizen by reason of descent from them?---I wasn’t aware of citizenship by descent then. I’ve become aware of the term since, so I can’t tell you exactly when I became aware of that, but it’s fairly recently. And I do know that my own kids are American citizens by virtue of their mother is American. And that seemed pretty significant.

How old are your kids?---Twenty-three and 21.

They were born here?---Correct.

And when did they become American citizens by descent?---When my wife filled out a form and got them a passport.

And when was that?---Soon after their births.

So you knew well before this date that you could become a citizen by descent?---Correct, providing there’s an application.

You haven’t said that you ever thought you were an Australian citizen by descent from your mother; that’s correct, isn’t it?---I have assumed all along and thought all along and believed all along that I am Australian and only Australian.

I understand that?---And that’s particularly because my mother was Australian and because of the conversations around the family.

Okay. Let me just go back to that. I asked you before about paragraph 9.14 and whether or not these were the reasons that you relied upon to think that you were Australian and only Australian?---Mm.

None of those say you thought you got it from descent from your mother so that is new. You do not say that anywhere in this affidavit?---No, that’s correct, but having to question that, as you’re doing now, the mother is significant.

Okay. So why didn’t you think your father might be significant?---Because he was British and so I had to check that. I didn’t believe that I was British. I was very – what’s the word – sure that I was only Australian. I had no difficulty filling out that form, but as you just said, I had – there is a slight possibility of citizenship due to birth, birthplace, and citizenship due to parents.

I can put it as a slight possibility. I think maybe we should go back to that. You were aware - - -?---I think you used the word “possibility” so I didn’t say slight.

Yes. So you were aware that one possible way – I don’t want to suggest any percentage chance which obviously varies from country to country – one possible way a person can get citizenship is birth in a place, you were aware of that?---I realise that was a possibility.

Yes, and you also I think have said you were aware at this time, the time you did that form in May of 2016, that another possible way a person could become a citizen was by descent?---I guess that was a possibility.

Well, you were aware that your children had become American citizens by descent, or you believed they had become by descent?---By – yes, after my wife applied.

Yes. So – and then I think you’ve said, although you haven’t said it in your affidavit, you’re now embracing the idea that perhaps you thought you could have always been Australian by descent from your mother. So that’s another way that you could have become Australian?---Well, as far as I knew and believed, I have only ever been Australian and that’s all I was.

So what I want to put to you is that if you thought that, if you thought – not that, but if you thought – if you understood that it was possible to get citizenship by descent, surely you understood that you could have gotten your father’s UK citizenship by descent from him?---And there is that possibility and that’s why I checked. I had no problems filling out the form because I firmly believed that I was only Australian and had no possibility of doing that. But when I sign my name to something, then I make sure it’s correct, so I look for evidence.

Okay, so you make sure it’s correct. You don’t want to sign it if you’re not absolutely sure?---Well, I did sign it because I was sure, but there is a possibility, as you say. So I wanted to make sure about that possibility.

Okay. So, at the time you’ve signed this, 29 April, that’s when you’ve signed that form, isn’t it, MIR-8?---Yes, on Friday, 29th.

As at that time, you were aware that it was possible that you might be British by descent from your father – I withdraw that. You understood that your father had British citizenship, right?---I understood that he had been British.

That he had been British, that he was born in Wales?---Correct.

And at least that he may have still been British?---I was aware that that’s possible.

Yes. So, what I want to suggest to you is that at that time you were aware that it was at least possible, according to the laws of England or depending on the laws of England, that you might be British by descent from your father?---I believe that it was possible that I had some relationship with India and possible I had some relationship with Britain.

Thank you. So, notwithstanding that those things were possible, you didn’t on 29 April, other than just reflecting upon your beliefs about how Australian you were, you didn’t actually check with the Indian authorities or any lawyer about whether or not you were Indian, correct?---I checked subsequent to the 29th from my own documents.

We’ll go step by step?---Correct, I didn’t check – I didn’t check before with the Indians, yes.

And similarly you also at that point of time didn’t check – hadn’t done anything, you hadn’t even sent the email off in an attempt to send to the British Consulate in Brisbane at that point in time?---Correct.

So you said earlier that when you sign a document like this you take it very important and then you take care with it to be accurate, is that right?---Correct.

But what I want to suggest to you is that you knew that it was at least a possibility that you could have been Indian by descent or could have been British by descent and you didn’t check those things?---At the time of signing that form, that possibility hadn’t really come in.

When you say the “possibility hadn’t come yet”, what do you mean by that?---It’s only when you see a form like this that – when I see a form like this then I think, okay, is there a possibility of something else.

Okay, answer - - -?---The rest of the question – yes.

Sorry, you said when you see a form like this you say “is there a possibility”. So let’s say on 29 April you said “is there a possibility”. Your previous evidence was you acknowledged that there was a possibility and you would have known at that time there was a possibility, but nonetheless you signed the form without checking, that’s correct, isn’t it?---As my statement - affidavit says at paragraph 9.14, I believed that I was Australian and only Australian.

So when you say you checked, you checked on the basis of your beliefs, not by any external source of what a lawyer might tell you or what a government official might tell you?---No. My frame of mind was that I was only Australian, had no difficulty signing that form.

Yes. Well, can we just bed this down? You accept that you didn’t check with anyone other than yourself that you weren’t Indian?---Correct.

You didn’t check with anyone other than yourself that you weren’t British?---Correct.

And the checking that you did with yourself was a sense of the matters in 9.14 of feeling Australian?---Believing I was Australian.

Believing that you were Australian on the basis of the matters in 9.14?---Correct.

Thank you. I see the time, your Honour.

HIS HONOUR: How are you going time wise?

MR LLOYD: Not terribly quickly but I anticipate – well, finishing in enough time to also finish Ms Roberts before the experts.

HIS HONOUR: We might sit till 1.00 and resume at 2.00.

MR LLOYD: Thank you, your Honour.

Now, at around the time of this form, isn’t it correct that you knew you were not an Australian citizen from birth?---No - the One Nation application?

Yes?---No.

Didn’t you know at that time that you were naturalised in 1974?---I got an evidentiary certificate of citizenship.

You knew that that amounted to naturalisation, didn’t you?---As I said, the key word is evidence.

Well, didn’t you think in your mind that it is properly understood as being naturalised?---Yes, I would have thought that.

Naturalised means having previously not been of a citizenship and then subsequently becoming of a citizenship, is that – that’s how you understood what happened in 1974?---Yes, yes.

So, you did understand on 29 April 2016 that prior to May of 1974 you had not been an Australian citizen?---I had realised I was naturalised and that’s what I put down. Yes, I suppose you are right.

So that means you realised that you weren’t an Australian citizen from birth?---Yes.

Now, I think after filling in this form you sent the email at the bottom of MIR-12, is that right? Sorry, I didn’t hear your answer?---That was your question?

Yes?---Yes, on the weekend.

So, MIR-12 actually has an email chain. I’m only referring to the one which is dated 1 May which starts at the bottom of page 50?---Yes.

Now, is it correct that you found the website addresses for the UK Consulate for doing some Google search?---It would have been a Google search, yes, that’s what we use as our search engine.

Yes, but you cannot recall anything about the website?---No.

Can I show you a document, you may or may not recognise it, and in the affidavit of Ms Deane – now, I have to say that when one prints out a website it actually gets reformatted into a print format so it’s a bit different, but if Senator Roberts you could go to page 29?---Of?

Of Ms Deane’s affidavit?---Okay.

Now, I’m suggesting to you this is a printout from a webpage on the internet and it lists on it – you’ll see United Kingdom High Commission in Canberra, United Kingdom Consulate in Victoria, United Kingdom Consulate in Queensland et cetera, United Kingdom Consulate in Sydney, and it has little maps there of where they’re found and it has their addresses and it has what at least purports to be email addresses. Do you have any recollection of whether the site you went to had this laid out in this kind of format?---No, I do not.

Can I ask a different question? You’ll see on MIR-4 to 12, sorry, that you used two addresses in the bottom email but then in the top email you use a third address?---Mm.

Did you look for that separately or did you already have that recorded from your first search?---I can’t recall that. I don’t know.

So, you don’t have a recollection that when you sent the second one you did further searches? You may have or you may not have?---Yes, I don’t know.

But you don’t have any recollection of having kept a copy of the website information you found the first time and then when you decided to send the second email, including to what you thought were the same people, just going back to some reference or note or something you had taken?---No, I can’t recall.

Going back then to this email?---MIR-12?

Yes, thank you, Senator, MIR-12. It’s headed “Am I still a British citizen?” That shows that on 1 May 2016 you understood that you had been a British citizen?---What that shows me is that I’d already said there’s a possibility of being Indian, a possibility of being English. If that was the case, then I’m writing to find out.

Yes, but it doesn’t say “Am I a British citizen?”, it says “Am I still a British citizen?” I suggest that you knew that you at least had been and you wanted to know if you still were?---If there was a possibility I was British then it would have been the case that I had been British. That’s why I used the word “still”.

Yes, but if you just wanted to know if you were British you could have asked “Am I a British citizen?” and saying am I still a British – I suggest to you indicates that your frame of mind was you knew at least that you had once been British and you were wanting to know if anything had changed?---No, I reject your suggestion.

So, just while we’re on that topic although it relates to a later email, if you go to the email at the top can you just read the second paragraph?---“If I remained a British citizen after gaining Australian citizenship on 17th May 1974, please accept this email notice renouncing any remnant British citizenship, effective immediately.”

Doesn’t the opening words to that indicate the words “If I remained a British citizen” that you understood you were British before you became Australian on 17 May and that your whole query is about whether you’ve lost your British citizenship by reason by having become Australian?---No, that’s not correct. My inquiry was to see whether or not – to explore the possibility of being British and the key word there is “if”.

Well, I want to suggest to you that at this point of time this email does show that your state of mind was someone who believed that they had been British and wanted to know if they were still British or if they remained British after becoming an Australian citizen?---No, my state of mind was, as paragraph 9.14 states in my affidavit, but as I had already recognised, there was a possibility of Indian and a possibility of British and I checked both.

Well, you say you checked both, as of this time – so by this time I mean - well, let’s say up to 6 June what had you done to check your Indian citizenship?---I went to my passport and I knew that it had taken at least two months from memory to get, it was quite exhaustive. I had to go to the consulate quite a bit and I looked inside there and in the visa that the Indian government had put in my passport it said that my citizenship was Australian.

Well, yes, because you told them your citizenship was Australian, though?---The exhaustive checks I went through and the time it took, I would’ve thought they’d check.

Let’s go back. There was a time when you were going to travel to India and you filled in a form to apply for an Indian visa. Is that correct?---Correct.

On that form, you would have provided to the Indian – well, not on the form. You would have provided at that time to the Indian Government your Australian passport, which says that you are Australian?---Mm.

And you probably filled in a form saying somewhere that you are Australian?---And my place of birth, which was Di Shigar, West Bengal, India.

True. And you are saying you think that, in order for them to give you a visa, by reason of your being an Australian citizen, they should have checked whether you were an Indian citizen?---Yes.

Why do you have that view?---Because it took a long time to get it. I am assuming they were thorough.

So it was your belief that they would have checked by reference to that?---Yes.

Were there any other checks you did whether or not you were an Indian?---No, the – paragraph 9.14 applies there as well, because my father joked about our association with India. He joked about football against the Poms and the Welsh and the British, and never once did he mention that I was Indian; never once did he mention that I was British – never once.

Maybe he did not know whether or not you were Indian?---Possibly.

So how much of an inference can one draw from somebody who was not a lawyer, was not an expert on Indian nationality law, you got comfort from him not suggesting you were Indian, that constituted checking that you were Indian or not?---I had a lot of faith in my father, because he was very thorough in these kinds of things, and if at any time there was the slightest hint in his mind that I had been Indian or British he would have let me know about it.

HIS HONOUR: Would that be a convenient time, Mr Lloyd?

MR LLOYD: Yes, your Honour.

HIS HONOUR: The Court will adjourn until 2.00 pm.

AT 12.59 LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.59 PM:

HIS HONOUR: Senator Roberts, you are still under oath, of course.

THE WITNESS: Thank you, your Honour.

MR LLOYD: Thank you, your Honour.

I had been asking questions about the checking you had done in relation to your Indian – your possible Indian citizenship, and you indicated that you had looked at your own passport and there was an Indian visa in there, and you drew an inference from that, in combination with the time it took for them to approve the visa, that they would have checked your Indian citizenship. That is your evidence?---Yes, and noting that my passport included place of birth.

Yes. Now can I suggest to you that you could not have credibly believed that the Indian authorities would check whether somebody who was on their face an Australian citizen and who was applying for a visa to go there as an Australian citizen, that they would check whether or not you were an Indian citizen or not?

MR NEWLINDS: I object, your Honour. There will never be a relevant fact in this case as to whether Senator Roberts made reasonable or unreasonable inquiries about his Indian citizenship. It simply does not arise.

HIS HONOUR: I think it is going to credibility. Is that right, Mr Lloyd?

MR LLOYD: In part, your Honour, but in part it also goes to what checks he did in relation to his citizenship. Senator Roberts has accepted, as I understand his evidence, that it was possible that he had Indian citizenship, and he said what he did to check it at the time, and I am suggesting to him that he could not have believed, on the basis of what he said, that - that it was not true that that is what he believed. That is what I am saying. So it does go to credibility, but credibility in relation to a check of a step that he was doing for a recognised possibility on his citizenship.

HIS HONOUR: I will allow the question, but we are perhaps coming towards the margins of relevance.

MR LLOYD: I will not go further down that path.

Senator - - -?---You are putting that to me, your suggestion? I accept that is your suggestion. I disagree with it because my father and mother for many years – I lived in the same house, and even when we didn’t - never once referred to me as being Indian or British, always to the contrary - Australian and only Australian.

Going back to your One Nation application form, which is on pages 42 and 43 of your affidavit under tab MIR-10, on page 43 there is a declaration where you solemnly and sincerely declare a number of things. Can you see that?---Yes, I can.

The first is that the application has been prepared by you - - -?---Mm.

And does not, in your belief, admit any fact or matters material to the matters referred to and that you confirm all the information and particulars set out in the above application are true and correct in all respects?---Correct.

And at that time you had appreciated there was a possibility that you had Indian citizenship, and all you had done is satisfy yourself by looking at the fact that you had an Indian visa. Is that correct?---And the history, as I have mentioned a little while ago.

And the history but you had not spoken to anybody who was legally qualified?---Correct.

You had not spoken to the Indian officials about the question?---Not that I can recall. I may have discussed that when I was applying for a visa but I can’t recall specifically.

In relation to you - I think you also accepted that it was possible that you had British citizenship. In relation to your British citizenship, you accept that you did not seek any legal advice on whether you were a British citizen at that time?---I did seek advice.

At that time?---From the British Government.

On 29 April this is?---No. That’s correct.

So, as at 29 April when you signed this form - - -?---Mm.

- - - declaring it to be true and correct, you recognised that there was a possibility that you were a British citizen, but you hadn’t spoken to anybody in the British government?---As I said before, when I signed the form I was completely confident, and then in reflecting over the weekend – and you’ll notice I sent my document to – my email letter to the British government on the Sunday. So at the time of signing this, that is correct, what I – what I signed.

So when you say it was correct what you signed, it was correct that you signed it without having made any inquiries of any person other than yourself and your feelings about being Australian?---Because I was sure that that was the case.

You were sure but you – when you say you were sure, you’ve already acknowledged that you recognised it was possible that you were British?---Correct. Correct.

So you weren’t sure in the sense of had no doubt?---I was – yes, I was signing that on – on the basis that, “I confirm all the information and particulars set out in the above Application are true and correct in all respects” in my belief. That was a genuine signature at the time.

I’m not doubting the genuineness of the signature?---Genuine intent.

Yes, what I’m suggesting to you is that you said that those matters were true and correct, namely, that you had met the eligibility requirements for section 44, knowing that there was a possibility that you had dual citizenships and without having done anything to check those things other than the matters you’ve just – you’ve mentioned already?---To the best of my belief, I signed that form accurately at the time I signed it. On reflection later – but I disagree with your statement that you just made. At the time I signed that form, I had no hesitation in saying that I was Australian, and believing that, and only Australian.

Okay?---Based upon paragraph 9.14.

When you say that you were confident of it, your confidence, you accept, was not based upon any authoritative statement from somebody who was familiar with either British or Indian citizenship?---Correct.

So would you accept that your confidence was misplaced?---No, I would not.

Your counsel has now accepted that you’re British, so don’t you accept that maybe you were wrong?

MR NEWLINDS: So what? I object. I object.

THE WITNESS: Given the circumstances at the time and my background - - -

MR NEWLINDS: I object. It has nothing to do with what has been put to the witness, which is whether he accepts that when he swore this statement it was misplaced for him to say that he believed he had met the eligibility requirements. To now say “Well, we now know you got it wrong”, does not assist your Honour at all.

HIS HONOUR: Mr Lloyd.

MR LLOYD: Well, if - - -

MR NEWLINDS: And who knows, I might have it wrong.

MR LLOYD: If Senator Roberts acknowledges that he got it wrong - - -

MR NEWLINDS: Well, he does not.

MR LLOYD: Well - - -

HIS HONOUR: Well, I think if he does not acknowledge it, that is something he should say for himself. If he does not acknowledge his error, that is not something that should come from his counsel, when he is able to speak for himself.

MR LLOYD: Well, can I ask you, Senator Roberts, do you now, having heard everything you’ve heard up to this point in time, accept that up until the point in time when your declaration of renunciation was registered, that you were a British citizen?---I will want to be checking with my barrister, my counsel, before I say anything like that because – but I accept that he says it and that’s – that carries a lot of weight with me.

Does that mean you accept that you don’t know one way or the other?---At the moment I haven’t seen the evidence and I have seen correspondence with the UK Government, including the Home Office, over a month or – more like three months, and not once have they said that I am a British citizen.

Not in those words?---Not once have they said that I’m a British citizen.

I’ll come to those emails. Do you accept that you know that merely because you felt Australian by reason of those matters in paragraph 9.14, that is not something that would make you an Australian citizen?---That was my belief at the time, very strongly based upon my parents in particular, so yes, it does – it does make me an Australian citizen now and belief was genuinely that I have always been an Australian citizen.

Do you think that believing that you’re an Australian citizen by reason of what is said amongst family members is actually the test for Australian citizenship?

MR NEWLINDS: I object, your Honour.

HIS HONOUR: No, that is fair enough.

THE WITNESS: Knowing my father, I certainly do.

MR LLOYD: You do?---Yes.

You believe that because of something to do with your father?---My father was very strong on detail, very good memory and a very good sense of humour and he would love to rib me about anything that I contradicted in my statements and he never once contradicted the belief that I was Australian and only Australian. He had many, many opportunities on many, many topics to really dig it into me about being British and not once did he do that. If he had known that, he would have – very nicely, but he would have.

Your father was a mining engineer, is that correct?---Correct.

MR NEWLINDS: Your Honour, this is the problem. The witness is not a lawyer. So, he is being cross-examined as if he’s a lawyer. He’s giving his answer back and saying, well, I get it from my father and then his father is being belittled because he’s a mining engineer, presumably because he doesn’t - - -

HIS HONOUR: I am sure he is not being belittled.

MR NEWLINDS: Well, it has been suggested that no one in their right mind would think a mining engineer would know anything about citizenship. Now, if that is right, why is it permissible for the witness to be asked as a matter of law what he thinks? I mean, surely, this is about what the person’s subjective belief is. There is the objective question which is answered as a matter of law - - -

HIS HONOUR: To the extent that it is about his subjective belief, it may matter.

MR NEWLINDS: What he actually thinks?

HIS HONOUR: To that extent, Mr Lloyd should be allowed to ask the question.

MR NEWLINDS: There is an awful lot of people who are going to be before this Court in a few weeks who have simply said I did not know. None of them are lawyers. None of them made any investigations. That does not seem to matter. They simply say I did not know. Now, the question is did you believe it, that is one thing, but we now move to did you think - - -

HIS HONOUR: He is being tested about the probability of the suggestion that he believed it.

MR NEWLINDS: All right, put that way, I would accept it has got some meaning.

MR LLOYD: I think you’ve said that you believed that you were Australian but what I think I put to you was - and I don’t have the exact words but something to the effect of that you couldn’t believe that Australian citizenship turned on your belief about the things in paragraph 9.14 and I think your answer was you did believe that and in part because you think your father would have known or would have made some remarks if he had thought you were British. Let’s accept all of that for the moment. Could I say then you would acknowledge, I think - and I do not in any way mean to belittle your father in any way - but you don’t suggest that he had any expertise in knowing about citizenships?---He had no legal expertise but he had a very detailed mind and a very, very good memory and he was very thorough and I put enormous faith in my father, justifiably all my life, I put enormous faith in him.

Would you accept with me that at the time you signed this One Nation form you knew that it was possible that you had other citizenships and you had not done a sufficient amount to resolve your doubts?---No, I would not put that because as I have indicated, I believe, that at the time I signed this on Friday the 29th, I had no hesitation whatsoever in signing that form, believing it to be true and correct to the best of my knowledge and belief. Over the weekend I thought about the possibility of others.

You had already accepted that you did understand that there was a possibility that you had these other things so knowing that there was that possibility, you had pursued your way of thinking and then you had signed it but two days later you decided to check, or as you I think put it in your affidavit, double-check. So doesn’t that indicate that you did in fact have doubts?---Not consciously at the time because as I said before, Mr Lloyd, I had no hesitation in signing that form knowing full well what section 44 was, no hesitation whatsoever.

You would accept, would you not, that at the time you signed this form you hadn’t taken any steps to renounce British citizenship?---When I signed that form, that’s correct.

You knew there was a possibility that you were a British citizen - - -

MR NEWLINDS: I object, your Honour.

THE WITNESS: When I signed that form I didn’t think that at all.

MR LLOYD: Well - - -?--- On reflection, as I said before this afternoon, on reflection I realised there’s a possibility of being Indian and a possibility of being British.

Isn’t it true that when you signed the form you – perhaps I’ve misunderstood your evidence, but is it not true that your evidence was that at that time you knew about the possibility of getting citizenship by descent, that’s right?---Somewhere over that weekend, yes, but when I signed this form I was very clear in my mind that I was Australian and only Australian, but there was a possibility for sure.

You gave evidence earlier that you knew about getting citizenship by descent from your children getting citizenship?---Correct, yes, as I just said - - -

So that was well before this time?---Correct, as I just said that, but at the time I signed this I didn’t think of that at all.

I see. So it’s something you didn’t know about in a general sense but it wasn’t in your mind at that time?---Correct.

Do you think it should have been in your mind at that time?

MR NEWLINDS: I object, your Honour. I object. Anyone listening to this case would think this form is an important form for the purpose of the case. The relevant - - -

HIS HONOUR: Well, apart from that I think the question probably is asking for his opinion about these matters.

MR LLOYD: I withdraw the question.

HIS HONOUR: I mean, to ask what he should have thought has some sort of normative content.

MR NEWLINDS: But at some point he should be given a warning as well, I would have thought. I mean, it is a declaration under the Oaths Act. Is my learned friend putting that it is deliberately false, because if it is the witness needs to be warned, and if it is not, where are we going?

HIS HONOUR: Mr Lloyd.

MR LLOYD: Yes, I suppose there is a question as to whether – in the Court whether the Evidence Act does not apply if he is going to claim a privilege. Is your Honour of the view that we - - -

MR NEWLINDS: No, I will give him some advice just to shorten things, and I would advise my client if he is asked any more questions about this form he should decline to answer upon the grounds that the answer might incriminate him. That is the advice I am giving you, Senator Roberts. Now, my position is the Evidence Act applies and your Honour has to go through the process. I am assuming it does not, but my real objection is this is taking us nowhere. This is not the relevant time. The relevant time is when the nomination is put in.

HIS HONOUR: Mr Lloyd, I have to say that in the scheme of things, given the time pressures we are under - - -

MR LLOYD: Certainly, I - - -

HIS HONOUR: - - - and there does come a point at which this kind of questioning which is eliciting exactly the same answers solicited for some little time is at the point of diminishing returns.

MR LLOYD: I accept that, your Honour, I will move on. Perhaps if I can move on to the email we started to look at as well which is on page MIR-12. The first email, the one at the bottom of page 1 May, that is over on the weekend after you had signed that One Nation form?---Mm.

You say that around 1973 my father and I had become Australian citizens – became Australian citizens, is that right?---Yes.

So that shows that at that point in time you only thought you became an Australian citizenship at that time?---That’s correct.

You didn’t think that you were Australian before that time?---I wasn’t sure what I was.

Maybe you weren’t sure but you - - -?---I hadn’t even thought about the possibility.

Well, you thought about it enough to write – to write back, so you thought that you became an Australian citizen in around 1973?---Correct.

Now, on 6 June - - -?---I know that that’s wrong, it was 74.

Yes, and that’s why we wanted to ask you in the – in the 6 June email you say in the second paragraph, “If I remained a British citizen after gaining Australian citizenship on 17th May 1974” – now, that’s very specific. What happened between 1 May and 6 June that gave you that information?---Well, I was becoming annoyed at getting no answer from the – from the British Government through the consulate and – and then just said, as I’ve acknowledged to you, I realise there’s a possibility I could have been Indian and a possibility I could have been British, so I did my checks and writing this under the – the assumption that I had been British, if I remained British.

So does that mean that you found, for example, at that point in time, your father’s – the documents that you got from your father or - - -?---No.

You must have found some document that said 17 May 1974. It’s quite specific. You didn’t seem to know a date on 1 May. Do you know what document you found?---That’s on the evidentiary certificate, not on the documents that my father gave me with his correspondence with the British Government and the Indian – and possibly the – no, the British High Commissioner in India.

So, one of the things that – one of the extra points of information is that you had rediscovered or found that evidentiary certificate?---As I explained to you, that was in my bundle of documents that my father had given to me after I stopped moving around, after I stopped travelling.

Yes, I understand that, but - - -?---So yes, the evidentiary certificate I kept slightly separate from the rest of the documents, and I found that - - -

Before when I asked you about the evidentiary certificate, I suggested that the normal reading of it would suggest that you’d become an Australian citizen on that date. Isn’t this email you showing that you understood that to be the normal reading that you got it from that date?---That’s one reading, yes.

But that’s also how you understood it at this time?---Yes.

Thank you?---But the thing is that it shows – it says this is an evidentiary certificate.

Yes, but in your understanding of it, you’re saying, “If I remained a British citizen after gaining Australian citizenship”?---Correct, yes.

So you believed that you gained Australian citizenship on 17 May?---Correct.

So logically you understood that you weren’t an Australian citizen before that date?---Correct.

And that you’re thinking that you were a British citizen, but you wanted to know if you remained a British citizen after that date?---No, my thinking was not that I was a British citizen at all. My thinking was if there’s a possibility – I’ll bring you back to that word you and I have both agreed on – that possibility, then would I still remain a British citizen?

Yes, there’s a possibility that you would – I accept that this question implies there’s a possibility that you would remain one after that date but this sentence, I suggest to you, shows that you understood that you had previously been a British citizen before that date, and you’re asking whether or not taking Australian citizenship meant you lost it?---No, my intent behind that was to say that if I had been a British citizen – if I had been a British citizen – then would I still be one afterwards?

HIS HONOUR: I think that the documents actually speak for themselves, Mr Lloyd.

MR LLOYD: Okay, your Honour, I accept that.

Can I just ask you, do you have a specific recollection that you got that date, 17 May, from the evidentiary certificate?---Yes, it would have been.

You say it would have been - - -?---I’ve used that evidentiary certificate in the past. As I said, I kept it slightly separate so I don’t have to go through all the papers.

You just said it would have been. Do you actually recall that that’s what it was or you are surmising that that’s what you think it would have been?---No, I do not recall actually going in my mind and seeing me go to that document. I’m surmising it would have been.

If I can take you to the AEC nomination form?---Which exhibit is that, Mr Lloyd.

Sorry, Senator - MIR-13. Can I give you also a copy of this document?---Thank you.

Now, having regard to the document, which is MIR-13, and the document which I have just handed to you, do you accept that the document I handed to you is a blank version of the form you completed in 2016?---It appears to be that way but, as my counsel said before, one of your documents that you have presented apparently – I couldn’t hear it very well – as being current was not current. So I don’t know if this is part of that, but it looks like – I’m glancing – it looks to be the same form, blank version of it.

Okay. Can I pass you another document?---Thank you.

Can I ask you, is that the actual original of the form you signed?---Yeah, that’s got my signature to it, yes.

And do you accept that the blank version I have given you was the same form as that –there’s no difference?---It appears to be. I haven’t checked everything, but it certainly appears to be. I’m not trying to be difficult; I’m just saying that I can’t - - -

I understand, Senator; you need to be sure. Can I ask you to go to the third page of the form that I gave you – that blank form that I gave you?---Yes, I’ve got that third page.

In your affidavit you refer to – when you filled in this form there were some explanatory notes with it?---Mm.

To your recollection was that what you were thinking about when you referred to explanatory notes?---That would be it, but I don’t know if this is the correct version. But that would be what I referred to.

And on this version, if you stop onto the right-hand column, below where section 44 is set out, it says “Candidates who have doubt about their eligibility by virtue of section 44 of the Constitution are advised to obtain their own legal advice”. Did you - - -?---Where does it say that? Down – okay, halfway - - -

Immediately under section 44?---Yes, I see that now.

Did you read that at the time?---Yes.

And you see in the next paragraph there is a reference to the Candidates Handbook and the Nomination Guide?---Yes.

Did you read that at the time?---I would have.

Did you look at the Candidates Handbook?---I believe I did.

And did you look at the Nomination Guide?---I can’t remember that for sure. I probably would have. I’m speculating now, but I probably would have.

Now, your Honour, I’m not sure that I have unambiguously proven that this is the right form. We will let you know. Can that go into the same category? My learned friend wants to tender it and - - -

HIS HONOUR: At the moment, I am taking Senator Roberts to have accepted that he read this form.

MR LLOYD: That being so, I would tender the blank form and I will ask a question about the original. On the original form – and it’s also as photocopied in MIR, whatever it is, 13?---Sorry, MIR-13, yes.

So you have the original there, so you can look at that as well. There’s a bit on the second page of the form where you state that you are an Australian citizen by something. Do you see that?---Naturalisation.

Above “Naturalisation”, there is birth and date of birth - are they your initials there?---They are my initials, both of them.

Does that signify that you originally filled in birth and then deleted it and then filled in “naturalisation”?---I can’t remember that but that would be what – or I went and just went and ticked the first box in a rush or without thinking and then realised that was wrong and made the changes.

Can I ask actually how you filled in this form because some of them the ticks look like, maybe they’re not, but they look like they are just computer generated and others of them look like you filled them in. So, for example, the tick at question 3 looks like a left-handed tick?---Yeah.

Do you recall what the explanation of that is?---No, I don’t, no, I don’t and under question 2 it doesn’t look like my writing but - - -

Did you have assistance filling in the form?---Sorry?

Did you have somebody assisting you to fill in the form?---Not that I recall, no.

Do you have any explanation why somebody other than you would have initialled changes to the form?---No, I initialled those changes. That is definitely me on the second page.

Sorry, I mean on the first page, there seems to be – maybe that is not an initial, there is a kind of a squiggle next to question 2 above what might be a changed tick and then on question 3 there is a reverse tick and a squiggle next to it which may or may not be - - -?---Question 3, yes, I see, question 2 and question 3, yes.

Do you know how those squiggles got to be there? Are they your squiggles?---They are not my squiggles. They look like someone’s signature or initials in the One Nation office.

So, somebody might have changed the form after you gave it to One Nation?---I hadn’t thought of that. Maybe they prepared it as much as they could.

I see. So, it might have been done before you got it?---Yeah, I honestly can’t remember.

Okay, thank you, Senator.

MR LLOYD: I tender the blank form as evidence as to what the notes were, your Honour.

MR NEWLINDS: There is no objection, your Honour.

HIS HONOUR: That would be exhibit 1.

EXHIBIT 1: Blank form – AEC “Nomination of a Senator”

MR LLOYD: Now, I think you indicated that you had read the notes and the notes suggested taking legal advice. You will accept that you did not, at any point before signing the form, take legal advice?---No - sorry, I agree with you, I did not take legal advice.

Thank you, Senator. Now, in paragraph 9.3 of your affidavit there is reference to this form and then you said you knew that you were an Australian citizen and only an Australian citizen. Can you see that passage?---Yes, I can.

You knew you were an Australian citizen – you knew you had been naturalised and you had an evidentiary certificate to prove that naturalisation, right? But in relation to your affidavit saying that you were only Australian and saying that you knew you that you were only Australian, was that premised upon your having forgotten that you were British?

MR NEWLINDS: I object, your Honour. He never accepted he was British. He has never accepted he thought he was British.

MR LLOYD: You asked questions at this time “Am I still British” - you had already asked those questions “Am I still British?”---And I explained why I used the word “still”.

I put to you that you knew at this time that you had at least prior to taking Australian citizenship been a British citizen.---No, I did not.

That your evidence here that you were only an Australian citizen is not true.

MR NEWLINDS: I object. The two do not follow.

HIS HONOUR: I think Mr Lloyd has to put the proposition if, for no other reason, that he is bound to put it for Browne v Dunn reasons.

MR NEWLINDS: Yes. My real objection was the second proposition simply does not follow from the first – so long as they are split up.

HIS HONOUR: You might be right but the second proposition has to be put.

MR NEWLINDS: It does need to be put, your Honour.

MR LLOYD: When you used the word “no” in that sentence - - -?---In 9.3?

In 9.3?---Yes, Mr Lloyd.

That has to be understood as picking up your basis of knowledge in 9.14?---Say that again – picking up?

The concept of knowing is something that you are using to refer to the sincere belief you refer to in 9.14 for the reasons you state in 9.14?---Correct.

Then you say in the next sentence – sorry, the one after that - - -?---In 9.3?

In 9.3, sorry Senator, “as I wanted to be certain that I was being truthful”, so you say you wanted to be certain and that is because you suspected that you might be a citizen of Britain and then you say that you wanted to double-check and that leads to a discussion in 9.4 in relation to India and then 9.5, 9.6, 9.7, 9.8 in relation to your email to the British which you characterise as double-checking and that concept of double-checking is premised upon the first check being your belief in 9.14. Is that right?---Correct.

So, in 9.5 and 9.6 you give evidence which is sort of what I might call family-based evidence about relations within the family, inferences you drew from the absence of things happening?---And my father’s sense of humour and his attention to detail and his pursuit of accuracy.

Yes. So would all of that really just support an inference that your father thought – I withdraw that. So having this uncertainty, that led you to do the research on the internet?---I had no uncertainty. I recognised the possibility.

Okay, because you wanted to be certain but you weren’t certain yet?---I recognised the possibility there.

Yes, well, the difficulty of some of your language, Senator, you are saying no and then in the next sentence or thereabouts you say you want to be certain so “no” has to – the word “no” has to mean something less than certain because you were not certain. Is that correct?---I am clarifying here the recognition of a possibility and that is all it was.

It was not a fanciful possibility. It is not like the same chance of some random person being Ethiopian, you thought there was a possibility because your father was born in Wales and had been a British citizen?---And because I had been born in India and so I recognised those possibilities.

That was a real possibility, it was not far-fetched.---No, correct.

So you then searched the internet, you found the email addresses but you can’t recall - - -?---Which paragraph are you at, Mr Lloyd?

In 9.7 and 9.8 – in 9.8 you refer to searching the internet but you can’t recall now the searches you undertook. Is that correct?---That is correct.

Did it occur to you that the email addresses that you had used to send to the UK Consulate might be wrong?---No, it hadn’t.

Even though weeks had gone by and they hadn’t responded?---I didn’t get any error message.

Accepting – well, you didn’t get an error message for the bcabris2 and the bcabris1 email addresses?---I didn’t get an error message.

But that doesn’t mean that they were in use, does it?---I can only go off what I found on the internet and believed to be entirely true and valid.

I understand, Senator. So after weeks went by and not getting a response did you – and the time approaching the filling in of the nomination form was coming near, did you think you should maybe ring up the consulate?---No, as you’ve seen, I sent another email to the same two people and added a third one.

Well, let’s take it step by step. You sent those things after you signed the form?---Correct.

I’m talking leading up to this nomination form when you’ve told the Australian Government this time that you’re eligible. You had doubts – well, sorry, you weren’t certain?---There was a possibility.

You realised there was a real possibility that you might have these dual citizenships. You at least made an inquiry in relation to the British Government, at least you thought, but you hadn’t got a response?---Correct.

And at that time you didn’t do anything else?---Correct.

And also you didn’t abandon that route of information by, say, going to a lawyer and getting independent legal advice as to whether you had British citizenship?---No, given paragraph 9.14, I thought the possibility was very, very small.

But you would accept, wouldn’t you, that you’re not a lawyer?---I accept that.

And you don’t suggest that you have any particular expertise in knowing whether somebody is a citizen or not of any particular country?---I certainly do not accept – do not make that claim.

So, in those circumstances, when you accepted that you didn’t have any particular expertise, especially on knowing what British citizenship indicia might be, you had no reason to have a view as to whether you were British or not, did you?---I did. I keep coming back to I always thought and believed that I was Australian and only Australian.

But how does the matters in 9.14 mean that you’re not British if you don’t know what the indicia are to be British?---My father in particular because he would have ribbed me for sure if there was any chance of me being British and he knew about it, and he would have known about it, I assumed.

You assumed that he would have known about it?---Correct.

Well, he did register you as a British citizen, isn’t that right? The records have now shown, I don’t think you knew it at the time but subsequently you found records which show that he did record you as a British citizen?---As I explained to you, reading that letter, I come to the conclusion that he either registered me as a British citizen or registered me as his son on the registry of British citizens in India. So, yes, but having said that, he still would have ribbed me had he believed at all that I had British citizenship. He would have let me know in no uncertain terms.

So, although he seems to have gone to the effort of applying to get you on a record as a British citizen, you still infer he didn’t think that that worked?---I didn’t infer that at all. What I’m saying is that he didn’t believe I was a British citizen to the best of my knowledge, and he would have let me know well and truly, Mr Lloyd, if I’d been British in his eyes. We had many long arguments and discussions about various aspects of British – not restricted just to rugby.

And did you do any searches on the internet about anything like how to find out if you were a British citizen – at this time, prior to 3 June?---No, I did what I did with the Indian Government. I went to the British Government’s representatives in this country.

When you say you went to them, you mean you sent them the email?---The letter, yes.

Now, if I can take you back to your statutory declaration which is in the bundle of the material from the President of the Senate. Page 29 I think it is of that bundle, Senator?---Yes.

So just taking you to the first sentence, “As confirmed in my public statement”, is that – I’m not sure that this matters but is that a parliamentary statement?---I can’t remember, 18 July.

Anyway, don’t worry, it doesn’t matter. Then you continue, “prior to agreeing to nominate for election to parliament”, so that’s properly understood as meaning prior to signing the form?---Yes, yes.

“I investigated if I was eligible to be an Australian Senator under section 44 of the Commonwealth Constitution”. So when you said that, the concept of investigation and then in paragraph 2, “As part of my investigation I analysed if I was a British (United Kingdom) citizen by descent from my father, who was born in Wales”?---Mm.

Is all of that comprised in the answers you’ve already given?---Yes.

Which is you thought about the things in paragraph 9.14?---Mm.

And you felt that you weren’t British, or you believed you weren’t British?---Correct, and wrote those emails.

And you wrote the emails to which you got no answers to?---Correct.

Do you think that’s fairly characterised as an investigation involving analysis?---I believe so, just the same as I scrutinised Indian forms, being that visa in my passport. I think that constitutes scrutiny.

Very well?---Given the level of possibility and my belief, certainly.

Can I suggest to you that characterising that as an investigation involving analysis would at least be misleading, that people would have thought that you had done more than just reflect upon how you felt about being Australian and looked at your own passport and found an Indian visa and sent an email which had got no response?---I don’t think that was. Given the circumstances, I think that was – that was not misleading at all.

I go back to the nomination form?---Which one, the AEC?

Sorry, MIR-13?---Yes.

So, you’ve ticked the naturalisation box there on page 2 and you’ve provided a date?---Yes.

You did this because you were aware that you became an Australian citizen on that date?---Correct.

You knew that prior to that date you were not an Australian citizen?---And as I indicated, I asked my sister subsequently and she indicated stateless, so.

Does your sister have any relevant expertise in the field of citizenship?---No, she doesn’t in terms of legal standing but these kinds of things I would trust with her.

Why?---Because she has a feeling for – she has a very good memory for what’s happened in the past, whereas I tend to forget lots of things, even significant things in the past. I tend to look forward.

But don’t you accept that being a citizen has a status? You accept by law - just having a memory as to what your family did in the past, unless you know what that’s to be measured against, you can’t know if you’re a citizen, can you?---I would have to agree with you.

So saying that you accepted your sister’s view that you might be stateless - - -?---That was, by the way, after. That was this year – sorry, late 2016. These things just – that, yeah.

I want to suggest to you that you understood, when you filled in this form on 3 June, that, prior to the date you became Australian, you were British by descent and possibly Indian by place of birth?---No. I recognised the possibility but I was convinced and very confident that I was not a citizen of India or of Britain. I didn’t know if that possibility existed for how many years. Did any British citizenship usurp the Indian citizenship? Was I given Indian citizenship because I was registered under my father’s name? I don’t know.

Your email to the British Consulate says, “Am I still British?” Isn’t the only fair way to read that that you understood that you had at least been British?---I recognise that is a fair way but it’s not the only way, because, given my circumstances, for me to be able to inquire into the possibility of being British then I would assume that I was British in the letter and say, “Am I still?” That’s my honest motive in doing that.

I suggest to you that you’re just re-explaining that now and that at the time your belief was that you had been British and that you’re now saying that you believed that you weren’t British?---No, that’s not correct. I did not believe that I was British at the time these nomination forms were sent in. I had no hesitation whatsoever in filling out and signing the One Nation form – none at all. It was only afterwards that I reflected on place of birth and father’s citizenship.

I should make myself clear. I wasn’t suggesting that you understood at the time you filled in the form you were still British, but at the time you sent the emails you understood that you had been British prior to 17 May 1974?---No. As I’ve said a couple of times now, Mr Lloyd, I only saw the possibility of being Indian and the possibility of being British.

I think you said that you think it’s possible that you did originally fill in the birth box but then deleted it. Is that because you accepted at that time that naturalisation was the correct answer?---I think that that would have been an error, but again I am speculating. I think that that would have been an error. I just ticked the wrong box and went back straight away and corrected it.

After that on the form - - -?---Which form is this?

I am sorry, the same form, the AEC nomination form - - -?---AEC, okay.

- - - you make a statement, which is the third statement underneath where you indicate your naturalisation. You say, “I am not, by virtue of section 44 of the Constitution, incapable of being chosen or of sitting as a Senator”. You ticked “yes” to that?---Yes.

And then you declare that you are qualified under the Constitution and laws of the Commonwealth to be elected as a Senator?---Correct.

Now you signed that - - -?---Mm.

- - - knowing that there was a possibility, or thinking that there was a possibility, that you were British or Indian, correct?---Correct.

And so you were prepared to sign that you were qualified, even though you knew it was possible you weren’t qualified?---The level of my possibility was very, very low, so, yes, on the balance, yes.

So you’re saying on the balance – is that short for on the balance of possibilities? You thought you were more likely than not to be only Australian?---Correct. Much, much more likely. I couldn’t be absolutely certain, even though I felt certain, for the reasons we’ve already discussed.

Those matters in 9.14?---Correct – well, the matters you and I have discussed today.

Can I suggest to you that you really knew that those matters were not a basis upon which you could assess the possibility, or assess the prospect one way or the other, of being British?---You can suggest that but I certainly don’t agree with it, based upon 9.14. I had – I had - very, very confident of being Australian, and only Australian. That’s the way I was raised.

Three days after you signed the form, you then sent that email which is at – one place is MIR-12, on the top of page 50. So that’s the one where you re-raise the question and also say “please accept this email notice renouncing any remnant British citizenship, effective immediately”?---Mm. Yes.

So that shows that even after the form you still recognised that there was a real possibility that you had other citizenships and you were trying to address them?---That’s certainly the case. That’s what I did recognise, and I wanted to be absolutely sure, so I made that renunciation, and I was very confident about the British – about the Indian, rather – because I had that proof.

In this one you sent an email addressed to fco.gov.ukSydney?---Yes.

Have you sent lots of emails in your time?---I have.

Have you ever seen any email address that ends in anything like “ukSydney”?---No.

Can I suggest to you that email addresses – if I may ask you a different question. Have you ever seen an email address that doesn’t end in a country nominator, apart from the nominators used in the United States, for example “.com”, “.gov” without a country nominator? Is that your experience of email addresses?---I haven’t seen any but I’ve seen some weird email addresses – domain names – and this one I was confident because of where I got it from. I can’t recall exactly where I got it from, whether it was the High Commissioner’s website, but I was confident because of the location, otherwise I wouldn’t have used it.

I suggest to you that when you sent that email you received a mail delivery error message?---No.

Is it possible that you received it but it went into junk mail or something along those lines?---Possibly, but I doubt it, because every error message that I’ve ever received, that I’m aware of, has been in the inbox.

Is it possible that you received it and forgot it or didn’t notice it because it came - - -?---Definitely not. Definitely not.

Now, prior to signing this form, I think I’ve asked you these questions - - -?---Which one are we back to now?

Sorry, the AEC form. I just want to make sure I’ve asked these questions in relation to that form and not just the Hanson – sorry, the One Nation form. You didn’t do anything in terms of seeking advice from anyone other than those two emails?---Correct. I’m thinking of India, I didn’t seek advice there, I just went to the passport.

And you think you probably read the candidates’ handbook and the notes which suggested getting legal advice if you had doubts?---Correct.

And you knew there was a real possibility that you might have dual citizenship. That’s a doubt, isn’t it?---I didn’t think there was much possibility at all because of my upbringing.

So you thought you would just take the risk, as it were?---Well, they’re your terms, but I weighed up the pros and cons and didn’t think – that’s why I thought there was such possibility of it but I - that’s why I renounced. And I thought there was no possibility of being Indian, for the reasons I’ve already given.

Okay. Now, it was open to you, wasn’t it, to seek advice on how to renounce your British citizenship other than by sending this email? You could have gone to the High Commission or a British Consulate and asked them?---I could have and I - - -

Nothing stopped you?---And I chose the same path that was successful with the Indian Government. I approached the representatives of that government in this country, the consulate.

When you say the Indian one, you’re talking about you applied for - - -?---Getting the visa. Getting the visa.

You applied for a visa?---Correct.

Which you infer means that they checked your citizenship?---Well, as I just said – you said there are other ways of approaching – approaching that, and I take your word for that, and my wife found another way later. But I went to the consulate representing the British Government in this State.

And you didn’t do the things then that your wife did later and find how she found out how to actually do it, which you then did do and it worked?---That’s correct, because my wife was very much afraid - and she loves me a lot – very much afraid of an email or a Facebook message, that’s right, a Facebook message from someone who said I was an Indian citizen, and she went through and – and did the research and said there’s no way I could be an Indian citizen, and then she said “While I’m at it, let’s go and do” – and she did a lot of research, despite having chemotherapy at the time, so she did a lot of research on that because she was concerned – her level of anxiety was very high after receiving that Facebook message, which turned out to be false.

In relation to India, yes?---Correct.

But her level of anxiety proved to be at least justified in relation to Britain?---Well, she – she argued that we needed to get a piece of paper, and the British Government had not provided it, and they still have not provided any evidence that I was a British citizen, subject to my counsel.

Well, they have provided evidence that you have renounced British citizenship?---Sorry, up until that time, yes. But even then, Mr Lloyd, the renunciation - it was pointed out to me by someone that even in the renunciation it did not say that I had been a British citizen, so I’ve still never been told by the British Government or any representative of the British Government that I had been a British citizen.

No?---Despite all the trouble my wife went to, despite the trouble I went to.

So, in response to her emails, they sent her an email saying “It would appear that you have a claim to British Citizenship” and then to renounce it “you are required to” – and then it tells you what to do to renounce it?---Mm.

Now, this is - - -?---Which exhibit is that in?

This is MIR-22?---Correct. That’s their email of 18th of October and that took a lot to get.

So telling you how to – is there any content in the concept of, in your mind, renouncing a citizenship that you don’t have?---To be absolutely sure, as I said back in – was it exhibit MIR-7 where I sent two emails – as I said, I didn’t believe I was British, but just in case, I’m renouncing it. And, as I said, I did some work even after renouncing the citizenship on the 6th of June last year, even after my wife had got correspondence with the UK and I’d got correspondence with the UK and we had formally registered renunciation, even after that I then checked to see about the possibilities, because no one from Britain had advised me that I had been a British citizen. I checked on the possibilities of being British and I went through a yes-no three iterations and it said “If your mother was not a British citizen”, I think on the 1st January 1983, “then you are not” – “most likely not a British citizen”. So even now it’s still - - -

There’s evidence before this Court about whether or not you were, one from an expert that you have engaged, one from an expert the Commonwealth has engaged?---Mm.

You are not disputing the correctness of their analysis, are you?---I’ll check that with my barrister later.

Okay. I will just put some matters to you. In relation to the time that you did the One Nation form, so on the 29th of April 2016, can I suggest to you that when you signed that form you knew it was – you knew that you were or had been a British citizen by descent and you took no steps to check whether there was – whether that was the position with anyone that would be in a position to know or advise on that topic?---I think I’ve answered this question or similar before. At the time I signed that form I had absolute conviction, had no hesitation in signing that form whatsoever – no hesitation whatsoever.

I understand you had no hesitation - - -?---I reflected later on the possibility and then took action on that possibility.

I think your evidence was you had previously known that it was possible, but you didn’t turn your mind to the possibility when you signed the form?---I may have raised the possibility before that discussion but, as I have said before today, I’ve said when I signed that form I had no hesitation in signing that form.

I know you’ve given that evidence. What I had said to you at that time was you’d already given evidence that you knew that it is possible to get citizenship by descent - - -?---Yes, yes.

- - - and possible to get it by place of birth?---Correct.

And what I’m suggesting to you is that you knew of those possibilities and, nonetheless, you didn’t seek any advice to determine whether those possibilities applied to you or not?---Because I was so confident that when I signed that form, based upon 9.14.

So notwithstanding that you hadn’t checked with anybody who would have qualifications on those citizenship issues you, nonetheless, signed the form declaring that it was true and correct that you were eligible to be elected as a Senator, correct?---That is correct, because that was to the best of my belief and I was very confident on that one. At the time of signing that form I had no hesitation.

Now referring to the emails, I’m suggesting to you that the emails reveal that you knew at the time you sent them that you had been British prior to either 1973 or 1974?---We’ve discussed this before, Mr Lloyd, and I say the same thing again.

I suggest to you that your query was whether you had British citizenship after having been naturalised as an Australian citizen. Your query was not whether you had previously had British citizenship?---As I said in the first email, sent on the 1st, the word is “still”, because I would only be writing that if on the possibility that I had ever been British, so I inquired as to whether I was still British, otherwise if I didn’t believe there was any possibility I wouldn’t have written the emails.

You knew you needed to know the answer to work out if you were eligible under section 44, that’s why you sent that email to the British Consulate on the 1st of May?---I wanted to dismiss that possibility.

Before getting any response you signed the form without dismissing the possibility?---I was still of the belief that I had a very small possibility of that happening. I was very, very confident that I had only been Australian and that I was only Australian.

I suggest to you that when you signed the form you knew that there was a real possibility that you might not be eligible to be elected as a Senator?---And I would say the same response that I’ve given you several times before, Mr Lloyd, that I recognised there was a possibility that I could be either British by descent or Indian by birth.

I suggest to you that when you signed the AEC form you knew at that point in time that you were not Australian when you were born?---No, as I said, I was of the belief, very deeply, that I had always been Australian.

You said on the form that you became Australian in 1974 when you were naturalised?---Correct, that’s correct.

So, that means you didn’t think - - -?---But I didn’t think I was British or Indian.

I’m not putting that to you yet. At the moment I’m just putting to you that you knew you weren’t Australian when you were born.---That’s correct.

So, you knew you became Australian when you were naturalised in 1974?---That is correct but these things, as I have said, it was an evidentiary certificate of Australia. I didn’t think about these things as a 19-year-old. I had always accepted that I was Australian.

But this is – I’m asking a question about 3 June 2016 when you filled in the AEC form and at that time you said you were naturalised in 1974?---Correct.

So, at least by that time, you knew by that time that you became an Australian citizen by reason of that naturalisation?---Correct.

So, whatever you thought about it when you were 19 you knew at the relevant time that you weren’t Australian before then?---That’s correct.

Now, I suggest to you that you thought that before 1974 you had been a British citizen?---Definitely not.

Your only doubt was whether or not you had lost your British citizenship by reason of being naturalised as an Australian?---As I explained, that was written on the assumption that I had been British.

I suggest to you that you explored this doubt in your email of 1 May, that was the purpose of it, it was to resolve that doubt as to whether or not you had lost your British citizenship by reason of Australian naturalisation?---It was to find out whether or not I was a British citizen on 1 May, just as I checked my Australian passport and the Indian visa to resolve the possibility that I could have been Indian by birth.

Then, after sending that email you received no response. You made no other inquiries of other persons?---Correct.

You signed the AEC form anyway with the declarations in it?---Correct, because of my firm belief.

Your Honour, they are the questions I had for Senator Roberts. Can I just – I am not entirely sure of the status of Ms Deane’s affidavit as I have done some cross-examination on it, can I at least ask for it to be marked for identification so we have some - - -

HIS HONOUR: All right. We will mark it MFI-1.

MFI: MFI-1.....Affidavit of Ms Deane

MR LLOYD: Thank you, Senator Roberts?---You’re welcome, Mr Lloyd.

HIS HONOUR: Mr Newlinds, your examination?

MR NEWLINDS: I have no questions, your Honour.

HIS HONOUR: Ms Barbara Roberts.

MR NEWLINDS: She is available. I would ask for Senator Roberts to be excused but I suspect he wants to stay here.

HIS HONOUR: You are excused, Senator.

THE WITNESS: Thank you, your Honour.

THE WITNESS WITHDREW

MR NEWLINDS: I call Barbara Lynne Roberts. She is just outside.

BARBARA LYNNE ROBERTS, sworn:

HIS HONOUR: Mr Newlinds.

MR NEWLINDS: Thank you.

Is your name Barbara Lynne Roberts?---Yes.

And is your address [redacted] Queensland?---Yes.

And for the purpose of this case, did you swear an affidavit on 8 September - - -?---I did.

- - - this year? Have you got a copy of the affidavit with you?---I have.

With your Honour’s leave, I just wanted to take you through the various annexed documents to identify her handwriting, because for my part I got a bit confused. If you can open your affidavit, please, to page 2 at the top and you’ll find paragraph 5.5 at the bottom?---Yes.

You say you have a recollection about being asked by your mother to change your handwriting. Can you tell us anything more about the circumstances, or was she unhappy that it was too messy or - - -?---She was unhappy with the way I was writing. She decided that it looked like stick figures rather than handwriting, so she expressly asked me to change my handwriting for the forms.

To make it more neat?---To make it more acceptable in her eyes, to make it more neat, yes.

And you actually have a recollection of that conversation, do you?---It was an argument.

Is that because it irritated you a little bit, did it?---Yes.

Now, may I take it that both your mother and your father could write at the time?---Yes.

Can you offer any explanation for why it was that you apparently were given the task of filling in these forms?---I really don’t know, but I had been doing this for my mother. My father had really good handwriting, but I was always the scribe for my mother.

I see?---Her handwriting was perfectly acceptable.

Now, can I ask you then – there are page numbers in the bottom right-hand corner, can you go through to page 17, and that’s a form in your name. Do you see that?---Yes.

And that is your handwriting that appears in the body of the form, correct?---As it was, yes.

As it was then of course?---Yes.

And other than the writing on the left-hand side and around the stamp at the bottom, that form is all your writing?---Apart from the brackets around “British” and “UK & Cols”, yes.

Whose writing is that?---I would suggest it was the person who examined the form or checked the details on the form.

So, you put the brackets around “British”?---Yes.

Then if we go through to page 20, you’ll see a similar form with the same date on it, but in your brother’s name?---Yes.

Again, that’s your handwriting with the exceptions you’ve identified?---Yes.

And if you go forward to page 22, the same form, the same date, this one for your brother, Peter, but there’s been a change at the top. Do you see that?---Yes.

Firstly, is the writing in the form generally yours?---Yes, generally mine.

The changes to the name in the first line, is that your writing?---That is my father’s signature and his writing of his name is Ieuan, as he’s crossed out Peter Nigel.

Right, so Peter’s name is in fact Nigel, is it?---Well, I filled in the form. My understanding is that probably when dad went to file the form he found out that Peter was too young to be - - -

So Peter’s under-age; his father has to do it for him?---Yes.

But you don’t remember that? You’re speculating?---I’m speculating.

I wanted to then take you to a document which is in exhibit 1, if the witness could be shown exhibit 1.

HIS HONOUR: Exhibit 1 is the form.

MR NEWLINDS: I withdraw that - the President’s letter documents, have you got a spare copy of that? I will show you the bundle of documents that came from the President of the Senate to the High Court of Australia on 10 August opened at page 25 at the bottom. I just wanted to ask you the same question. Apart from the signatures, is that your handwriting?---That is not my handwriting.

Do you recognise that handwriting?---That is my father’s handwriting.

Is that your father’s signature?---It is.

All right, thank you. Can that be returned? Finally, just going back to your affidavit, at page 24, we find another “Notice of desire to become an Australian Citizen” form, this one in your father’s name and it’s got a different date on it, 1 May?---Yes.

Is that your handwriting in the body of the form?---No, that is - - -

Is that your father’s handwriting?---It is my father’s.

And just going backwards at page 23, there is a document headed “application for an evidentiary certificate”. Do you see that?---Yes.

And it’s dated 1 May as well, about two thirds of the way down on the right, do you see that?---Yes.

Is that your writing?---No.

Do you recognise that handwriting?---That is my father’s handwriting.

Thank you very much.

HIS HONOUR: Thanks, Mr Newlinds. Mr Lloyd.

MR LLOYD: .....your answers to those questions, I take you back to your affidavit. I think you indicated that on each of the forms that are headed “Notice of desire to become an Australian citizen”, take the one for yourself first on page 17 - I think you indicated that the handwriting of the word “British” is yours?---Yes.

But you apprehend that the brackets around it and the “UK + Cols” has been added by somebody else?---Yes.

And you’re inferring, and I’m not suggesting that is wrong, that could have been the person checking the document?---I’m guessing.

So does that suggest that – or do you infer that when your brother signed his version of that form it would have just said “British”?---I would take that, yes, like, when we all signed our forms?

Yes, because somebody else added that later, is your evidence?---Yes.

Thank you. In Annexures B, C and D of your affidavit, you attach copies of multiple forms. They were all completed in May of 1974, is that correct?---Yes.

And at 5.5 of your affidavit, you start by saying you do not have any specific recollection of completing the forms?---That’s correct.

I just want to make sure I understand what that means. You do not remember filling it in or how you got the information to fill it in, but you remember the conversation with your mother about the handwriting?---That’s correct.

And do you remember at least that you were filling it in at the same time as you had the conversation with your mother or immediately after that conversation?---I would have been filling it in with her standing by me, shall we say. I do not remember where we were in the house and that’s what I mean, I have no specific recollection but I have a specific recollection of the argument.

And I think you stated that you were only 16 at the time?---That’s correct.

You say you don’t specifically recall this but you estimate it is likely that your mother asked you to copy out what was in your father’s form?---That’s plausible or it’s also plausible that – that’s the most likely scenario. The other is that she produced her passport, because there are some factual errors on that document for me, in the colour of my eyes, and that’s a strange thing that doesn’t sit well with me.

.....the other side is going to say, your forms are in annexure B on page 15, and that is your handwriting filling in the colour of your eyes. Where do you think that came from?---I think that is what my mother told me to write. If I had written that from my own knowledge, I would have written “green”.

Okay, I understand - - -?---The same with the hair colouring. I have written “light brown” and then after that comes “fair”. That sounds silly.

I think I understand the evidence, thank you, Ms Roberts. Do you accept that – if your speculation that you were asked to copy your father’s form was correct, you would have either been told or you would have understood that you were meant to vary the answers according to what was correct? Let me - - -?---Yeah, I understand what you are saying and I would agree with that assumption. The issue I have is that the argument – I was just in the end told what to write, so I think I just did. Now I have – it didn’t mean terribly much to me at the time.

I understand. Then if I come to the form for your brother, the Senator, which is at page 20, after filling in his name and your family address, you got to the date of birth box and you probably knew his date of birth at that time?---Yes.

And then the place of birth - you either knew that or were told that?---Yes, I knew that.

And date of arrival in Australia, would you have known that?---No.

So somebody has told you that?---Yes.

And then British citizenship - would you accept that you were probably told that?---I would accept that I was told that. The issue I have is was it citizenship or was it British subject in lieu of the fact that we weren’t Australian. I’ve got no idea.

If we are surmising on what is likely to have happened, would it be fair to say that as good a speculation as anything is that you would have sought some direction from your mother what to put underneath “citizenship”?---Yes.

And your best speculation is she would have indicated British was the right answer for your brother?---For the three children - - -

For the three children?---She would have indicated that - what I am saying is if she opened her passport for each of her children there is a sentence that says “We are British subjects but have not yet acquired Australian citizenship”.

.....a sentence for you that says that - I think that is on page 10 of your affidavit, but on page 9 it does not say that for your brother, Malcolm, does it?---No, the wording doesn’t say that, but her passport says she is an Australian citizen but she has a British passport, and in 74 we were all British subjects.

When you looked at these forms, you would have read the heading, would you not? You knew that it was a notice because you desired to become an Australian citizen?---Yes.

So would it not have been apparent to you and your mother, who you had the fight with, at least that this was to become an Australian citizen?---Yes.

So is it reasonable to infer that at least two of you, as members in your family, thought that this would make you an Australian citizen from having previously been British?---No. What I thought it did was give me the paperwork that said I was an Australian citizen. The amusing part to all of this is my mother told us we were Australian because we born to an Australian mother, and I have no reason – I will rephrase that. I have no reason to doubt that and I really assumed that that paperwork was just a formality. It was not to change my citizenship, and being an Australian and having gone to school for 12 years, nearly all of those 12 years, I had sung God Save the Queen and I knew I was a British subject.

Yes?---And from my 16-year-old brain there was no difference between British subject, citizenship, nationality, and I still don’t know the legal delineations, definitions.

Thank you. If it please the Court, those are all the questions for Ms Roberts.

HIS HONOUR: Thanks, Mr Lloyd. Mr Newlinds, any re-examination?

MR NEWLINDS: No, apart from asking her whether as a 16-year-old in 1974 she thought she had better things to do than fill in these forms. No, thank you, your Honour. Might she be excused?

HIS HONOUR: Thanks. You are excused, Ms Roberts. Thank you for your attendance.

THE WITNESS WITHDREW

HIS HONOUR: Well, Mr Lloyd, I understand the video conference is set for 5 o’clock. Before then, can we usefully spend the time in submission in

relation to what we should make of the lay witnesses. I do not mean to be unduly oppressive but - - -

MR LLOYD: I am content to make a statement.

HIS HONOUR: That would be great.

MR LLOYD: Can I go to our opening submissions.

HIS HONOUR: Perhaps a way to proceed, if you are proceeding by reference to your opening submissions, would be to alert me to any changes you wish to make in relation to what you opened.

MR LLOYD: Certainly, your Honour. If I say some things about the structure of it: the first section deals with, in part, explaining what the document is and some conceptions I have as to the relatively unique role of amicus contradictor on facts alone. I probably do not need to develop any of that now. There is then an introductory section, which I do not think I need to speak to. It just sets out the basic circumstances that bring us here really. That goes through to paragraph 18.

Then in Part III there is a heading “Legal Principles” and then there are things said about section 47 of the Constitution. I should say – it occurred to me after this exact second, but I am assuming somebody else has given a 78B notice to the extent that that is relevant.

HIS HONOUR: That has happened.

MR LLOYD: I have not seen it and I have not mentioned it to the Court, but as long as that has happened. Then paragraph 22 deals with some salient aspects of the Electoral Act, which I do not propose to address orally. Paragraphs 23 to 25 say some general things about the role of an amicus, taken from case law. It would be said that most amici would not be in the unique role as contradictor amicus. Amici probably have generally expected to have less factual involvement than I am expected to have, but we put it there for the assistance of the Court in case it was an issue. But I do not propose to go to that.

Then there is a heading “Findings of fact in the Court of Disputed Returns” and that refers to some relatively basic principles. I do not know if any of them are controversial. I do not hazard a guess they are, so I reserve for reply if there is anything that is seen as not being right there. That brings us to the key sections. In the “Factual Findings” section, paragraph 29 deals with what we have identified as the five questions or the five key topics and I will come to those in more detail at the end and probably would want to, having now finished the cross-examination, supplement those matters.

Then there is a very lengthy section, which is really paragraphs 31 through to 80. I think 80 – maybe more than that – 87, which probably means that something earlier is wrong, so let me correct that. In paragraph 4 of the submissions, it refers to paragraphs 24 to 80, it should refer to paragraphs 31 to 87.

So, in paragraphs 31 to 87, we extract or identify what we think are general background facts. They are mostly taken from, as one can see from the footnotes, the evidence advanced on behalf of Senator Roberts. What we say in 31 is that we do not anticipate that there is going to be dispute any of those things, that they may, nonetheless, be useful or be useful findings of fact for the Court on appeal, provides background and general context and we would say the Court should make all of those findings of fact. Subject to my apprehension being proved to be wrong, I reserve for reply dealing with anything that is actually disputed amongst them but we would say that all of those matters should be accepted.

That then comes to question 1 – what did Senator Roberts know about his citizenship status when he nominated? We have said here that it is clear that at the time he nominated for senator on 3 June. Now, maybe I should say something about this date. The 3 June is the date that Senator Roberts signed the form. It was given to the Commission on 8 June. We have focused on 3 June not because we say 8 June is the wrong date but because we also have cross-examined about the email on 6 June but, we say 3 June is the day on which Senator Roberts had to satisfy himself that he was qualified and what his state of mind then was important indicia because other than write the email on 6 June, which he had not done at the time he signed it, he – that nothing else of significance had happened. So he signed the form at that date. We say that that makes that an important date and an important issue for his state of mind, assuming that state of mind is even relevant to the entire question.

So, in paragraph 89 we say he was aware that he acquired Australian citizenship not by birth but by naturalisation and that he knew that he had acquired Australian citizenship on a specific date being 17 May 1974. Accordingly, it is plain that Senator Roberts was conscious that he was not an Australian citizen before 17 May 1974. I think the cross-examination bears that out. I think he even accepts that he was conscious that he was not an Australian citizen before that date. Having said that, there are other bits of his evidence where he says he is Australian – only Australian, so there is a tension there and that we say is resolved by a conclusion that on the critical time when he signed that form and he said that he was - - -

HIS HONOUR: Well, in a sense, I suppose, there might be some sort of self-identification as an Australian.

MR LLOYD: Indeed.

HIS HONOUR: But you would say that is not enough.

MR LLOYD: We would say that that – save to the extent that it is a legal question, we would say that self-identification of an Australian and the indicia in paragraph 9.14 which has become a bit of a shorthand in the proceeding but they are the matters which he attached significance to in his self-assessment that he was Australian are not indicia which are indicative of citizenship on any actual legal basis. So his views are premised upon a basis which we say could not reasonably be understood to be indicative of a right to a legal status. So if he had that belief it was not a belief reasonably held.

HIS HONOUR: Sorry, it was not a belief?

MR LLOYD: That was reasonably held. In paragraph 90, we say, the question to be resolved by the Court is: what did Senator Roberts consider his citizenship status was before that time? We say, the answer is to be resolved by reference to the contemporaneous documents. That is particularly the 1 May document, and in that he asked the question “still a British citizen”, and we say that the natural reading of that question – and I know Senator Roberts denies this but we say the natural reading of that is he understood that he had been a British citizen.

He wanted to know if he was still a citizen after having taken Australian citizenship, and that is clear in the language of the 1 May letter. It is even clearer in the language of the 6 June letter that that was his thinking, and we accept that that is inconsistent with his denial of that. We have put that to him. It is a matter for the Court to decide if it accepts that, but we say the language of that email is very clear and the Court should find that he had understood that he had been British.

That would be our primary position, and alternatively the Court would find that he at least understood there was a real possibility that he was British and they in a sense are alternatives that the Court could find. So that is paragraph 91. At the end of my cross-examination and I put it there so it may assist your Honour when looking at the transcript, I put a number of matters to – in sort of a collected way to Senator Roberts about what he knew or believed at the time of the One Nation application, at the time of the emails and at the time of the AEC form.

We would say all of those matters that I put to him are matters that the Court could and should find on the basis of the evidence. That does involve rejecting such aspects of that as he denied, but we say that the evidence is quite clear coming from those emails. It is supported by the fact that he had signed a one-sentence letter, admittedly many years earlier, in which he became Australian.

We say that although we do not doubt for a moment that he overwhelmingly self-identifies as Australian – and we do not say anything to the contrary of that, but that does not mean he did not believe that he had prior to becoming naturalised been British, or even possibly Indian, but really the Indian matter the Court does not have to make a finding on that.

So they are the findings we would make as to what Senator Roberts knew or believed or understood and also what he understood were possibilities and also – then I will go to question 2: what could Senator Roberts have done to understand his citizenship status at the time of his nomination?

Now, at that time, Senator Roberts had the documents from his father that he indicated he had not looked at, and that is fine, but he could have looked at them and they would have shown that his father made some efforts to get him registered as a UK citizen, we say, and if he had have looked at them he might have taken that view, or should have taken that view, as the natural reading of those documents. That is one of the things he could have done.

He could have taken steps to get legal advice, as the AEC had recommended, for somebody who had doubts. Senator Roberts would not accept, I think, the characterisation that he had a doubt, but at the same time he did accept that he knew it was a real possibility that he had other citizenships. So we say that is just an unavoidable tension in those answers and the Court should accept that he, at the very least, realised that there a real prospect that he had dual citizenship.

What he did about it was very little. He did not seek legal advice, he did not approach the UK Government otherwise than send one email before signing the form, and a second one shortly after signing the form. We say they were to the wrong address, but, accepting that that is a separate issue to be resolved later, if ever, we say nonetheless he did not get a response from the first one.

He understood that it was an important issue. He understood that there was a real possibility at least that he would have those citizenships, or the UK citizenship, and he did not seek to resolve it before signing the letter and maintaining his position as being eligible. We say that there were things that he could have done, that reasonably would have been done and that the Court should - - -

HIS HONOUR: Well, we are not worrying about what he reasonably could have done; what he did, what he could have done, so far as his nomination is concerned on 8 June. At that stage he had no response to his email of 1 May and he had no response to his email of 6 June.

MR LLOYD: Correct, and never had a response to them.

HIS HONOUR: No, but that was the position.

MR LLOYD: Yes.

HIS HONOUR: At the date of nomination.

MR LLOYD: Yes, at the date the forms were filed, yes. We say that there were other things that could readily have been done to clarify his status. We also say that he did none of the things that we are positing were readily available to be done, and he accepts, I think, that. I am not saying he accepts that he did nothing; he indicates that he reflected upon his familial treatment and his perceptions in 9.14. He sent an email which he believed was to the British Consulate but he did not chase it up. That is what he did, and really the totality of it. The next question is: was Senator Roberts a British citizen at the time of his nomination? This is a question that is affected by the expert evidence.

MR NEWLINDS: Or it is common ground.

MR LLOYD: My friend says it is common ground. It is certainly common ground that he is a British citizen. It may be that everything we say here is common ground – I am not sure that I will go that far.

HIS HONOUR: I understand it is common ground but it is also established as a matter of fact in this Court by reference to the views of both the experts which are ad idem on this question.

MR LLOYD: Correct, yes. So what we have set out here is, as it were, the general fact that he was, at the time of his nomination, a British citizen and indeed that he had been one since birth. Then there are kind of subordinate facts which are picked up from the expert evidence. We think that they are probably uncontroversial.

Question 4 is: what steps did Senator Roberts take to renounce his British citizenship before his nomination? The position is that, up to and including the time he signed his nomination form, he took no steps whatsoever. What he did do is, after filling in the form but prior to it being registered or sent to the AEC, he sent the email of 6 June.

Then there is some question about what effect that had, and that, I think, will be the focus of the cross-examination or the evidence of the experts this afternoon, but if I can foreshadow what we will say, just to get it covered and reserving our ability to have a top-up submission after the cross-examination.

HIS HONOUR: Sure.

MR LLOYD: We apprehend that the difference between the experts is in relation to the significance of the non-payment of fees and the significance of – well, I should not put it that way – whether or not the email at MIR-14 included a declaration that what was in it was true. If I can say a couple of things about this.

Ultimately, with expert evidence on legal matters, the experts are proving the foreign law as a fact. It always remains for a court to apply that proved foreign law to the evidence but I am not saying – sort of do not say that the experts cannot purport to apply it, but their expertise is really to identify and draw attention to what is the law. It still remains, we say, for a court to be able to apply that.

What we say in relation to the question of fees - there is a difference between the experts – and I will ask them questions to clarify this – as to whether the non-payment of fees goes to the validity of the declaration of renunciation. There may or may not be a difference about that. Mr Berry at least clearly says it does not go to the validity of the declaration of renunciation. It is clear that Mr Fransman thinks that non-payment of fees would at least prevent the registration of the declaration of renunciation.

As I understand it, both of the experts accept that the renunciation is not effective – to walk away from the word “validity” – until it is registered. They both say it is when it is registered that his citizenship came to an end. As I understand the evidence, Mr Berry says, well, the declaration of renunciation can be valid even though a fee is not paid. Now, query what is the significance of “validity” in that respect. The question is: would it be registered if the fee was not paid? We say it is clear from Mr Fransman’s evidence - which we do not even think Mr Berry actually when you look at it carefully - disputes, that it would not be registered if there was not a payment.

So it might be that the declaration of renunciation could be valid but still unable to be effective. If that view transpires to be correct on the expert evidence, then we would say, well one reason why Mr – I should say it is common ground that Senator Roberts’ efforts on 6 June fell short. Mr Berry’s - - -

HIS HONOUR: Well, it is common ground between the experts that, whatever effect the 6 June email might otherwise have had, it was sent to the wrong authority.

MR LLOYD: That is so.

HIS HONOUR: Because it could only have been effective if it had been sent to the Home Office, in the UK.

MR LLOYD: That is so.

HIS HONOUR: And they are ad idem on that.

MR LLOYD: They are ad idem on that.

HIS HONOUR: So it is not effective?

MR LLOYD: It is not effective but, as I apprehend, what is advanced on behalf of Senator Roberts – maybe I misunderstand what they are going to say, but I think what is going to be put is, well, it might not have been effective because it was sent to the wrong place, but the email would have been effective if it had been sent to the right place.

HIS HONOUR: And in relation to that Mr Fransman says, that is not right because it did not contain a declaration of truth. Mr Berry says, it was a declaration of truth. First point. And Mr Fransman says, it was not accompanied by the fee so that it was not an application made as prescribed. And Mr Berry says, it did not need to be accompanied by the fee because it was not an application at all.

MR LLOYD: That is so, and I think Mr Berry’s point is it did not have to be accompanied by the fee to be a valid declaration of renunciation.

HIS HONOUR: I am sorry; you are quite right.

MR LLOYD: But I do not know – and this is what I want to - - -

HIS HONOUR: But a declaration of renunciation required to be made in the prescribed form, then there are regulations that prescribe – sorry, required to be made in a prescribed manner – then there are regulations that prescribe the manner, and the regulations that at least expressly are addressing the manner in which the declaration of renunciation is to be made do not themselves require the payment of a fee to accompany it.

MR LLOYD: In order for it to be a so-called valid declaration of renunciation. I may prove to be wrong - - -

HIS HONOUR: Well, to be a registrable one.

MR LLOYD: To be registrable, yes. And where I apprehend there is a difference between the experts is that Mr Fransman is indicating by reference to a provision which in effect says the Secretary must charge a fee in order to register that particular renunciation. What Mr Berry says is, well, that may be right, but that does not go to the validity of the declaration.

Now, Mr Fransman might disagree with that, but whether a request to the validity of the declaration, there is still a question of whether or not under the law which requires the Secretary of State to charge a fee, even if it was a so-called valid declaration of renunciation, would it have been registered? If it would not have been registered unless the fee is paid, then Senator Roberts’ email of 6 June still, even if sent to the right person, would not have been registered. He had to pay the fee and the fee was not paid until well after 8 June, so his efforts, even on that view, we say, are flawed for two reasons: not the right place and the failure to pay the fee. Whether the failure to pay the fee goes to so-called validity of the declaration of renunciation, it at least goes to whether or not under English law it would be registered and therefore would bring about the end of his citizenship.

That brings me then to the second matter that I will canvass with the experts. Perhaps if I go back to MIR-14 – this is the requirement for – I will find the exact words. The exact words can be found in the report of Mr Fransman. On page 13 of Mr Fransman’s report there are requirements of Schedule 5, and the third requirement by itself is a declaration - that is to say, a declaration of renunciation – “shall contain a declaration that the particulars stated therein are true”.

As I apprehend it, Mr Berry - I am now turning back to the email - sees these words in the email at the top of the page:

Please see ancestry history and other details below.

And he says that that is a declaration that the particulars stated therein are true, or at least meets that obligation, and Mr Fransman does not think that it does. We will hear from them – give them the chance to explain their respective views.

We would certainly say that if the proper function is for the Court having had the evidence or having had the law identified to it, it is not likely they would come up with a case which is somehow analogous that can be simply applied, it is a matter of the Court having had such laws as are relevant drawn to its attention, the Court then being satisfied that the application of it is correct.

HIS HONOUR: Is it proposed that – well, I suppose Mr Fransman is your witness who is required by the other side - Mr Newlinds will cross-examine him first?

MR NEWLINDS: That would be my plan, your Honour.

HIS HONOUR: Then, Mr Berry would be cross-examined by you, Mr Lloyd, is that right?

MR NEWLINDS: We have not talked about it. I was going to suggest they give the evidence concurrently and that I would cross-examine Mr Fransman and that if I thought appropriate I could then turn to Mr Berry and ask him to comment there and then on any responses. It is a matter for your Honour.

HIS HONOUR: Mr Lloyd?

MR LLOYD: So long as it is concurrent evidence and they each have a full and fair opportunity to comment on each other, I do not care if my friend goes first.

HIS HONOUR: Well, certainly the idea of concurrent evidence with each of the witnesses having the opportunity to comment on what is extracted in cross-examination sounds good to me.

MR LLOYD: I am content to let my friend go first, so long as the general theme is he asks Mr Fransman what he wants, he gives Mr Berry a chance to comment and once he has exhausted his questions, I will do the same, if there are any questions left, and we will take it from there.

HIS HONOUR: All right.

MR NEWLINDS: Mr Fransman outranks Mr Berry in the sense of he has silk but they are on the same floor and they seem to work together all the time so - - -

HIS HONOUR: There is no question about the expertise of either?

MR NEWLINDS: No, no, no, not at all. I think, I would suggest it is the most efficient way forward, and probably the most likely way for your Honour to get to the bottom of it.

HIS HONOUR: That sounds good to me. All right, thanks, Mr Lloyd. Mr Newlinds.

MR NEWLINDS: Can I use my learned friend’s opening document as a - - -

MR LLOYD: Sorry, before my friend starts, I have not addressed question 5.

HIS HONOUR: I beg your pardon. I beg your pardon, Mr Lloyd.

MR LLOYD: Which is what further steps Senator Roberts could have done. Perhaps if I just note that we rely upon what is written there. We, obviously, suggested that there is things he could have done, not the least being the things that he with his wife ultimately did do in order for the renunciation to be effective. So, in terms of assisting the Full Court, we say that we do not ask that this Court finds that he did not take – either that he did take reasonable steps or that he did not take reasonable steps but could note that there were steps of this kind that were not taken and then the Court can decide later whether that meets the whatever ends up being the constitutional test or not. Sorry.

HIS HONOUR: Thank you, Mr Lloyd.

MR NEWLINDS: Just on the question of the expert question, your Honour, my understanding has always been that the question of what the law of another jurisdiction is is a question of fact. So, a Tribunal in Australia determines that question of fact, usually by expert evidence, but it can be done by reading the cases in the statutes and the textbooks, but if there is no evidence it just proceeds on an assumption that it is the Australian – the same as the local law.

Having done that, the court in Australia then works out the facts and applies those facts to the law and comes up with an answer. I am just raising this because your Honour has only been charged with the job of working what the facts are and it may be that resolving these expert questions ultimately is a question of application of the law, and I am not sure whether that goes beyond your Honour’s remit or not. For my part, I do not object to your Honour determining what the answers to these questions are.

HIS HONOUR: Well, this aspect of today’s exercise arose because your junior prevailed upon the Chief Justice to make today available to deal with these questions of foreign law as between the experts as involving the need to resolve these questions as questions of fact.

MR NEWLINDS: That is correct, he did that because I told him to, or asked him to. I am not embarrassed about that. But my learned friend has just pointed out that once you work out what the foreign law is, you then apply the facts as found to it and come up with a result. At one level, that question is a question of law. I am not trying to be difficult; I am just raising it as a – but there are these issues between the experts. But, as I read it, it is not – yes, Mr Fransman says a fee is required as a matter of foreign law. Mr Berry says it is not. So, that is a pure question of law.

HIS HONOUR: It is not that a fee is not required. There is a fee required. The question is as to whether the failure to accompany the renunciation with the fee means that it is either not made as prescribed or Mr Lloyd would say not registrable.

MR NEWLINDS: Correct, and it is all about whether it is a service or not and whether that is a relevant factor.

HIS HONOUR: Yes, a request for service as opposed to an application for something else.

MR NEWLINDS: For something to be done. The other question is the question of is it a declaration in fact or – sorry, is it a declaration as required by the overseas law? The only reason this matters is I would like to make a submission to the Full Court in the context of what we did and whether it was reasonable or not that he got incredibly close to getting it right and, indeed, based on Mr Fransman’s original advice, if he’d gone to Mr Fransman and asked, “Who should I make this application to?”, Mr Fransman would have said, “The High Commission in Australia is acceptable”.

He would have been wrong, but it just demonstrates why getting legal advice is not necessarily determinative of these things. Mr Fransman, according to his own CV, is the world expert in this type of law in Great Britain, and yet when he was asked the very question, “Who is it appropriate to make the renunciation to by an Australian living in Australia?”, the answer was, “To the High Commission in Australia”. Wrong.

In a different universe the Senator would have got legal advice from the world’s top expert and still objectively not achieved renunciation. That is a submission for the Full Court. I just want to make - I want to make a submission that the steps he took ought to be taken to be found to be reasonable because they were so close to the correct steps. But perhaps we will come back to talk about the experts after they have given their evidence.

HIS HONOUR: Sure.

MR NEWLINDS: Can I go back to primary facts, because we really are not very far apart, as I am sure your Honour has worked out. Going to my learned friend’s shopping list of facts starting at paragraph 31, the only ones that I have doubts about at this stage – and this may fall away – is the question of whether the email addresses are correct at paragraphs 67 and 72, noting however that even if they are the wrong email addresses, it is pretty clear on the evidence that your Honour can infer where the Senator got the information from.

If the solicitor for my learned friend found that website by putting in the so-called wrong address for the High Commission and that was the return, and the only return, then it seems probable that when the Senator did his search he came across that particular webpage, and it is important to note that on that particular webpage there is a lot of information which is correct.

The two telephone numbers that my learned friend’s solicitor rang, firstly to get the consulate in Brisbane and secondly to get the High Commission in Canberra, are the right telephone numbers, as found on that website, so it is not some dodgy website put up by someone with bad motives. If it was wrong, it was not unreasonable for the Senator to proceed upon that information and it is not suggested, as I understand it, that he did not in good faith think he was sending it to the right address. Now, of course he could have done more. He could have walked down the road and knocked on the door and spoken to people. He could have rung them up.

HIS HONOUR: Picking up the telephone does - - -

MR NEWLINDS: I accept that. It is pretty obvious what extra he could have done. The question ultimately will be whether what he did was reasonable or not, if that is the law. But for your Honour’s job or duty today, the finding ought be that he sent the emails to those addresses, that he honestly believed they were the correct addresses, that he had a reasonable basis to believe that because of where he had found the information and your Honour will either make a finding that it was the right or wrong email address either in this judgment or we will know that by the time the matter comes before the Full Court. We believe it will be accepted by my side or I am sure it can be sorted out by agreement between the parties.

So that is what we would say about that. I am not trying to hide from the obvious fact that Senator Roberts could have done more, but it is important to – I will try not to stray into submissions on the ultimate question. But it is important to appreciate that if the law is, and accepts that there is a something less than achieving renunciation, that can be said to be reasonable. It is not really very helpful for someone to say, well, if he had done this he would have got it right and he would have renounced.

Obviously, if the various statements in Sykes v Cleary mean what they apparently say, it is accepted by the law of Australia that something less than achieving the desired result can still, for the purpose of the Constitution, amount to the person not being a citizen of the foreign country. So, what did he do? Obviously my learned friend wants you to delineate between what he did up to the date of signing the form and then make a further finding as to what he did thereafter before the form was lodged, and I guess your Honour will do that if that is what he asks you to do, but can I test it - - -

HIS HONOUR: By the form, you mean the nomination form?

MR NEWLINDS: The nomination form.

HIS HONOUR: Not the One Nation form.

MR NEWLINDS: The One Nation form is irrelevant other than credit, if your Honour thought it impacted on his credit. What matters is what is the person’s status as at the date of nomination, as I read the cases; the process of nomination being an ongoing process but it starts at the point of nomination – sorry, the process of choosing being an ongoing process that starts at the point of nomination.

But test it this way. If I, God forbid, was thinking of standing for the Australian Parliament and I filled in a nomination form and I gave it to the One Nation people and they forgot to lodge it, just imagine how well my case would go when I came before this Court and said, “Well, I am a valid candidate because I signed the form and someone else forgot to lodge it”. Obviously, the relevant date is the date of lodgement and there is a big change because then he writes the 6 June email. We say that was a bona fide, reasonable and almost successful attempt to renounce any citizenship that he had – that he might have had.

Now, your Honour will have formed impressions about Senator Roberts and I hope he will not be offended if I suggest that one of those impressions might have been that he is relatively stubborn in resisting conceding matters which he has determined in his own mind are correct, but may I make these observations?

Firstly, no person asked to give evidence as to what their state of mind was on anything in 1974 as at 2017 is really doing anything other than a process of reconstruction and speculation. I would invite your Honour to find that insofar as Senator Roberts gives evidence as to what he thought about his citizenship status as a 19-year-old, or as a five-year-old for that matter, is evidence that he has given based on reconstruction.

Now, I do not know if your Honour when you were 19 wandered around the streets or the universities thinking to yourself I wonder what country I am a citizen of, but I doubt if many 19-year-olds do that. In fact, I doubt if many people do that unless the question comes up. Everyone has a feeling and belief as to what country or what tribe they belong to, and it is not unreasonable for Senator Roberts to say and keep insisting, I always understood I was an Australian, I self-identify as an Australian. The reason I self-identify as an Australian is my parents imbued me with that belief and that is what I honestly believe. Now, I am not a lawyer. One thing I am going to ask the experts to concede is that the question of – especially the question of renunciation, but the entire question of citizenship of the United Kingdom and elsewhere is not an easy question at all for lawyers but in particular non-lawyers.

HIS HONOUR: Can I just ask you one thing about your point about people do not think about these things? In Senator Roberts’ affidavit, he does make a point of saying that when the citizenship was achieved in May 1974, his father made a point of saying to him, look what has happened. That looks like it was a big deal. He remembers that. Does that not suggest that it was a big deal?

MR NEWLINDS: What it suggests, I would submit, is that it was a big deal for the dad, and so the father has obviously organised – may I speculate?

HIS HONOUR: Everybody else.

MR NEWLINDS: Because I am younger than Senator Roberts, I remember Gough Whitlam but I do not remember anyone saying the White Australian Policy was finishing and I do not remember there being some rush for people to sign up as Australian citizens, but if that is the history that is the history. But what appears to have happened from the forms - - -

HIS HONOUR: Well, there actually is not any evidence of that.

MR NEWLINDS: I know. What appears to have happened from the form - - -

HIS HONOUR: Senator Roberts did not accept the suggestions that were put to him.

MR NEWLINDS: No, he did not remember. What appears to have happened in the forms is that the father fills in his form on a week before the rest of the form. I am speculating but I reckon he went down to the office, spoke to someone at the counter and they said, well, do you have any children? Do you want to sign them up at the same time? He has then come back home, said to the wife “Can you fill in forms for each of the kids and I can make them all citizens”.

The wife has then delegated the form filling out job to the 16-year-old daughter. They have had a fight because she has criticised her handwriting and the daughter has filled in the forms as best she can, maybe getting the information from the mother or maybe just copying out the father’s form and putting in how tall and what colour eyes and hair she thinks her siblings have.

Then the father has got all the paperwork back together and he has probably taken it down and then proudly come back on the weekend Senator Roberts remembers and says, “Well, look what I’ve done for you”. Now, I completely accept that from the father’s perspective he undoubtedly thought he was doing a good thing for his children. He undoubtedly knew that it was a significant event and he was quite proud of himself when he showed it to his son. It does not necessarily follow that it necessarily registered with the 19-year-old son or that he thought it was a particularly big deal.

HIS HONOUR: Can I ask you another thing? In relation to the emails of 1 May and 6 June, in the email of 1 May, it says “My father and I, my brother and sister became Australian citizens in around 1973”. The 6 June says “On 17 May 1974”. It does seem clear, as was suggested by Mr Lloyd, that there must have been reference to some document that gave the date.

MR NEWLINDS: Yes, and it is the certificate, I think. So what seems inevitable, and you should find, is that between the two emails he has gone and got the certificate and that is what he.....because obviously he is not going to remember the date.

HIS HONOUR: So that he has referred to the document before he writes the June email.

MR NEWLINDS: Now, the document is a certificate of citizenship, but it does say as and from the particular date.

HIS HONOUR: In relation to that, the suggestion that he had been told that the pre-17 May possibility as to citizenship was – sorry, I will start again. The pre-17 May citizenship, the possibilities were Indian by birth, British by descent. So the third possibility, which was statelessness, that was not something that was in his mind until after he had done this.

MR NEWLINDS: No. We can put that to one side.

HIS HONOUR: So what you have is a situation, looking at those emails, that, if one reads them as they look like they ought to be read, as and from this date I was an Australian, or I became an Australian, the suggestion is that before that date I was something else. There are the two possibilities: Indian by birth and British by descent.

MR NEWLINDS: It is worse. You can add to that that his own words are “Am I still British?”

HIS HONOUR: Still British.

MR NEWLINDS: It is inevitable that you will find – and this is contrary to Senator Roberts’ evidence – that by the time he wrote those emails he understood at some level that he probably was British up to the time of the Australian naturalisation. It is the only way the objective evidence can be made sense of. He has talked himself into a different belief about that, and we will have to deal with that insofar as it infects his credit as to other things he says, but I have explained why you would be cautious in going too far in relation to that because this all involved processes of reconstruction.

What you have is a man who – and this is not inconsistent with him thinking he is Australian and only Australian, of course, from 1974 until today – saying to the British Consulate, “I became an Australian in 1974. My father was British. Am I still British? Tell me what to do because I want to stand for the Australian Parliament.” There is no tension, in my respectful submission, in his evidence when he says “I was sure I was Australian” and asking the question, because there is nothing in the evidence that suggests what he says his belief was at the relevant time, which is at the time of nomination, was anything other than what he says it was.

Once again, speaking only for myself, I am sure I knew or believed things when I was 19 that I have long since forgotten or formed the complete opposite view about. There is nothing unusual about that, which is another reason why it is so hard to remember what you thought about things so long ago. I knew how to do long division in 1974. I am pretty sure if I was trying to show my children, I cannot do it any more, but I did know it then and I do not know it now. So there is no tension at all in him saying on the one hand, “I was confident I was Australian,” but, on the other hand, sensibly understanding that there was a possibility, not fanciful, that he might be something else and trying to bed that down.

My learned friend, in cross-examination – I do not know if we are going to have the transcript in time – but I was listening carefully as to how far he got. He got a concession of a possibility, not fanciful. He got a number of concessions as to possibility.

HIS HONOUR: I think it was actually – I think it was real possibility, not fanciful - real possibility, not fanciful.

MR NEWLINDS: Yes, okay, real possibility, not fanciful. What he did not get was “real and substantial prospect”, which is the submission that is made at paragraph 91, and the submission at paragraph 90 was the same – “a real and substantial prospect”. He never put that. If in this case – I hesitate to say, unlike the other cases that are going to be heard at the same time – there are going to be submissions about degrees of knowledge, then you should find as a matter of fact what level of knowledge or suspicion he had. If you accept that his primary view was he was Australian, and that is my submission, you would find that he believed he was Australian but that he understood there was a prospect, a possibility, et cetera, that he was not.

Now, that is a perfectly reasonable position for people to take, if you take away the word “know”, because “know” is the wrong word. No one knows anything with complete certainty, so there are always gradations. The better word, we will submit, when we come to the question of law, it must be about belief, as opposed to knowledge. It must be about subjective belief. One can believe that there is a God but leave open the possibility that there is not. There is no tension whatsoever between that, but the answer to the question “Do you believe in God?” is yes, and so on.

So, at the heart of this, and if we are going to get to the second stage of the – at the heart of this is whether your Honour is prepared to accept his evidence when he says, “I did not think I was anything other than an Australian, but I accepted that there was a possibility that I might be British or Indian”. If you accept that evidence, then the real guts of it is what level of suspicion or notice to get into other realms of the law are we dealing with here, and my respectful submission to your Honour is it should be found no higher than a real possibility, not fanciful.

Now, the Court will then, if your Honour makes those findings, grapple with that fact in light of whatever the law is determined to be. But in the context of a case where there are other people, one of whom’s father is a New Zealander and one of whom was born in Canada, who just in a one and a half page affidavit say, “Well, I knew my father was a New Zealander but I didn’t know that made me a citizen”, full stop, with no inquiry, it is obvious that those people were on notice, it is obvious that those people could have got legal advice in the light, but somehow Senator Roberts has been singled out really because he did something. He actually did not turn a blind eye to the situation. He acknowledged the possibility and he tried to do something to get to the bottom of it.

Now, in relation to India he did not do much, but it is a bit - my learned friend is a lawyer obviously, and a good one, but it is not unreasonable for a normal person – and when I say that I mean everyone other than lawyers – to deal with an overseas country and effectively say, “Hello, can I have a visa to come into your country and work and do other things that non-citizens are generally not allowed to do?” and go through what was no doubt a complex bureaucratic process imposed by the Indian Government.

Why would that person not expect at some stage in that process for the Indian Government to say, “Well, hold on, welcome back, we’ve been wondering where you are. You don’t need a visa. You’re a citizen of this great country”. That is not an unreasonable approach for people to take. I mean, we know that countries do not have lists of people who are citizens of the country, but why, with respect, is it unreasonable for him to have done that? Anyway, India does not matter.

HIS HONOUR: Well, no, it does not, because on any view of Indian law, he was not a citizen.

MR NEWLINDS: Correct. But he was right to identify it was a possibility, because he was born there. But my learned friend was critical of what he did to work that out, I suppose so he could transpose that across and try and persuade your Honour that it was all a bit slapdash. In my submission, what he did in relation to India was perfectly rational and sensible, and got him the right result, perhaps luckily, but it did.

What did he do in relation to Great Britain? He did the very thing that the handbook to candidates suggests you do. Now, I will find where that is. It is in the affidavit that has been deferred. At page 90 of Ms Deane’s affidavit which we looked at in opening, there is the heading “‘Foreign allegiance’ disqualification” and it says you should:

take ‘reasonable steps to renounce foreign nationality’. The steps to take for renunciation may depend upon foreign law. If you have foreign citizenship you should check with the relevant embassy or high commission -

It does not say – it says if you doubt who you are a citizen of, get legal advice. It says if you want to renounce, talk to the high commission or embassy, which brings us back to what he did in relation to the high commission and embassy. In our respectful submission, he tried. He tried to do the very thing that the candidates are told to do and he failed.

Now, he either failed because he had the wrong addresses or because the people at the British Consulate are very busy. I suspect it is the former, and we will clear that up. But he did that in good faith. It is a reasonable thing to do. Anyway, for your Honour’s purpose, it is what he did. What he could have done is obvious. It is what his sister did, and she got to the bottom of it by - - -

HIS HONOUR: His wife did.

MR NEWLINDS: His wife did; I am so sorry. She did it and he could have done that, obviously. He also could have got legal advice. He could have gone down to the consulate or the high commission himself and spoken to someone. He could have picked up the phone. There are all sorts of things he could have done. If your Honour wants to find all of those things, they are obvious but the most obvious thing is he could have done what his wife did. But in every one of these cases if you get into reasonable steps the person has failed to achieve the goal, so they have fallen short in some way. So the question is notwithstanding that, were the steps reasonable?

Now, the cases, especially Justice Deane’s reasons in Sykes v Cleary, say that there are other relevant matters which might – well, there are other factors which ought to be taken into account. I was thinking aloud. One of them is the level of connection the person has with the foreign country. So the findings that we would ask you to make in relation to that topic are zero.

HIS HONOUR: Well, except the fact that his father was Welsh.

MR NEWLINDS: Of course, but that is the starting point. Obviously, in every one of these cases the starting point is the person is a citizen of that country, so they have had whatever connection it is that gives them that status. So they are either going to be born there, have a parent there or perhaps applied. I think they are the only three traditional ways you can get citizenship. So yes, obviously his father is born there and he has visited there from time to time. As I read the affidavit, as a tourist he visits coalmines, but I think it says that is on an informal basis.

So, like the rest of us, he has been to England a few times. He has a much greater connection with the United States. He is married to an American. His children were born in America; his children are American. He was educated in America and he lived in America for a long time. I just say that by way of relativity so that your Honour, hopefully, accepts my submission that he has the most limited contact with the United Kingdom imaginable- that is, he has been there a few times and, subjectively, he has never believed he was a citizen. He has never had allegiance to that country. Obviously, he has allegiance to the same Crown, but that is the Crown in relation to Australia.

So for the purpose of section 44, the conflict that was obviously intended to be resisted just is not there in any real sense. So we would ask your Honour to make those findings against the event that we can persuade the Full Court that they are relevant findings. The other category is just all the circumstances of the person and we would ask your Honour to make findings to the effect that he is a neophyte in the terms of political operations.

HIS HONOUR: Well, the problem with that is that there is no suggestion that he sought help from the One Nation officials. There is evidence that there was no vetting process, but there is no suggestion that he raised the possibility with them and there is nothing about whether or not they would have been able to help him or not.

MR NEWLINDS: That is correct.

HIS HONOUR: So to say, “Well, he’s a neophyte” is once again – that is sort of step 1, because that is not the whole story.

MR NEWLINDS: True. I was hoping to come to the second step. But he is a neophyte. Of course, he has not asked the party for assistance but, by the same token, they have not offered it.

HIS HONOUR: Well, they did not know they should be offering because, so far as they were concerned, he had signed a declaration saying that he was qualified.

MR NEWLINDS: True, but it is a pretty complicated question. I know there is no evidence about this and usually the major parties have processes in place – I withdraw that. The objective evidence would suggest to the contrary. He is inexperienced himself - may I put that? His family circumstances at the time – and you can see this from his wife’s affidavit – were stressful. He is obviously considering to run for Parliament, which is a very big life step. His mother-in-law is sick in America which is causing his wife to be away. It is obvious from the evidence that she is a very good assistant to him but she was not around at the relevant time. It gets fixed up when she comes back.

In my respectful submission, they are all relevant factors. He is doing the best he can on his own, acknowledging as I must that one of the reasons he is on his own is he has not asked for help, and your Honour would find that and you would find that obviously he could have and there would have been lots of people around who could have assisted him.

So, in our submission, it really comes down to this. The essential facts that we contend for are that he did not believe he was anything other than Australian at the relevant time. He understood that there was a possibility – a real possibility not fanciful that he might be either Indian or British. He did the things which your Honour knows that he did in good faith believing they were the best he could do, especially in relation to the renunciation.

He fell short. He did not manage to renounce British citizenship effectively, and then your Honour would make the findings as to his connection with Great Britain, his general circumstances which are really covered by our learned friend’s chronological statement, and then your Honour can find the obvious which is what he could have done to get it right and the Full Court will then do what it – will work out the law in light of those facts and then work out what the result is.

HIS HONOUR: Yes.

MR NEWLINDS: I know your Honour does not need to be told that. The evidence of the experts - all I am trying to achieve is to be able to make a submission that he got as close as possible. He either missed out in the three ways Mr Fransman suggests he did or only in one manner which is going to the wrong person which, of course, five years ago would have been the right person but the law changed. Mr Fransman’s book still has not caught up with that. Undoubtedly that is where the mistake comes from, but five years ago the right person to have made it to for an Australian was the High Commission in Australia, and in due course we will submit that how close you get to the right result must impact on the reasonableness of the steps he took. I think that is all I wanted to say, unless anyone wants to - - -

HIS HONOUR: Well, thanks for that, Mr Newlinds. Given the time, we might have a comfort break and resume at 5 o’clock. Adjourn the Court to 5 o’clock.

AT 4.43 PM SHORT ADJOURNMENT

UPON RESUMING AT 5.07 PM:

HIS HONOUR: Yes, Mr Newlinds.

MR NEWLINDS: The position is, your Honour, that we have not been able to establish a visual link but we have audio contact. The parties are agreed that that is acceptable, if it is acceptable to your Honour. In London, we have Mr Fransman and Mr Berry. They have just introduced themselves to us. They say that whilst they are not overly familiar with concurrent evidence they are happy to do what - whichever way your Honour wishes.

HIS HONOUR: Very well. Good morning, Mr Fransman; good morning, Mr Berry.

MR FRANSMAN: Good morning.

MR BERRY: Good morning.

HIS HONOUR: Thank you, gentlemen, very much for accommodating us and I apologise for any inconvenience that has been involved but we do very much appreciate it.

MR FRANSMAN: Not all. It is just a great pity for us that we cannot see the proceedings, but you never know, it may be that suddenly a picture will appear in the course of discussions but otherwise we are looking at a completely blank screen at this stage.

HIS HONOUR: Thank you for that. Now, Mr Newlinds, you are proposing to commence by cross-examining - - -

MR NEWLINDS: I was.

HIS HONOUR: - - - Mr Fransman.

MR NEWLINDS: Yes, that was my - - -

HIS HONOUR: Yes.

MR NEWLINDS: With Mr Berry there and I will try and use the fact that they are both there together to make it go quicker and to try and, I suppose, formally, they should be sworn and - - -

HIS HONOUR: I do not think they need to be sworn, do they?

MR NEWLINDS: Not for my part.

HIS HONOUR: Their reports were not sworn. I assume that was because they are barristers.

MR NEWLINDS: Of course. I would never expect a barrister to be sworn and the reports are before the Court?

HIS HONOUR: Yes.

MR NEWLINDS: Yes. I think that means, Mr Fransman, that we should first ask each of the witnesses to identify themselves. Mr Fransman, are you there?

MR FRANSMAN: Yes. This is Laurie Fransman and I am hoping that my voice is sufficiently distinct from Mr Berry so that we do not have to keep prefacing what we say with our names. We are happy to do that if that will help you from avoiding confusion.

MR NEWLINDS: Okay. Let us see how we go. Mr Berry, could you identify yourself so his Honour can hear your voice?

MR BERRY: Yes. This is Mr Berry. Mr Fransman and I have different accents, so hopefully we will be able to be distinctive, but do tell us if for any reason we are not.

HIS HONOUR: Thanks, Mr Berry. Yes, Mr Newlinds.

MR NEWLINDS: Mr Fransman, can I start with you. Have you read Mr Berry’s report of 18 September?

MR FRANSMAN: Yes, and I have it in front of me.

MR NEWLINDS: Very good. Is this right - as you understand it, you both think that the appropriate organ of the British Government that any renunciation had to be made to was the Home Office in London and the particular person being the Secretary of State of the Home Office, I think?

MR FRANSMAN: Yes, that is right. I think that for the purposes of this discussion there is no distinction to be drawn between the Secretary of State and the Home Office. For the purposes of this proceeding today, the two can be taken as denominate, if that helps to avoid confusion. So if one of us talks about the Secretary of State or the Home Office we mean the same thing, which means the authority in London or in the United Kingdom, as distinct from a post abroad. That is the contrast. We are both agreed that a declaration of renunciation by a person in Australia has to be directed to the Secretary of State, meaning the Home Office, meaning the United Kingdom, rather than a post, a British post, in Australia.

MR NEWLINDS: I understand, thank you. Is this the case - up to about five years ago, when the law was changed, it was appropriate for a person in Australia who wanted to renounce British citizenship to do that to the High Commission in Australia?

MR FRANSMAN: Yes. It was about five years ago that it was changed.

MR NEWLINDS: Speaking for myself, I make mistakes all the time, but it is right, is it not, Mr Fransman, that in your initial opinion you were of the view that as at 2016 the appropriate organ of the British Government to make a renunciation to from Australia was the High Commission? It turns out you were wrong in that regard?

MR FRANSMAN: I put into my report the 2003 regulations which included at little (d), I think it was, that that was the right authority. That was picked up by Mr Berry as having been amended and deleted. As to why I would not know. But, yes, that was moved, so that is correct. That was the change that occurred.

MR NEWLINDS: Thank you. What that confirms, does it not, is that this particular area of law that both of you are specialists in is actually quite complicated and difficult?

MR FRANSMAN: It certainly is. I think that I hopefully say when attending events that there cannot be a country on this planet that has a more complex nationality organ than the United Kingdom. It is extremely complicated.

MR NEWLINDS: And people such as you and Mr Berry, who are undoubtedly both experts in the field, from time to time get things wrong?

MR FRANSMAN: Absolutely.

MR NEWLINDS: We will not include judges in the discussion, for obvious reasons. Now, where you and Mr Berry do not agree is on the question of whether the fee is a necessary matter to be provided with any renunciation and, secondly, whether the email that was sent on, I think, 6 June was a declaration for the purpose of the British legislation. Is that right?

MR FRANSMAN: We disagree on the fees point, the fees issue. In respect of the second matter you raised, can you clarify whether we are talking about whether the 6 June email constituted a declaration of renunciation, or are you referring particularly to whether it included a declaration of truth because the other point on which we disagree, the second point, is whether or not it contains a declaration of truth.

MR NEWLINDS: Yes, thank you very much, it is the latter. The matter that you disagree on is whether the email was a declaration within which there was a declaration of truth. Does that put it appropriately?

MR FRANSMAN: Correct. We do disagree on those - - -

HIS HONOUR: All right.

MR NEWLINDS: Can I just come then to the fees question and at the risk of oversimplifying things does it boil down to this? There is the regulation – a series of regulations which do not delineate between applications, services or processes. That is step 1, is it not?

MR FRANSMAN: I am not sure that this is.....we have..... I think that in order to check out the issue I would need to take you to the fees regulation and to some actual wording if you all have those regulations before you.

MR NEWLINDS: What we do have is Mr Berry’s report of 18 September and if you look at paragraph 11 of that report on page 3, may we take it that it is common ground that:

British nationality legislation concerning fees distinguishes between ‘applications’, ‘processes’ and services’.

MR FRANSMAN: Those terms are mentioned but in order to appreciate our respective positions, I think, you do need to look at legislation. I was told that the legislation would be before the Court. If that is not the case then I will improvise and make do as best I can.

MR NEWLINDS: All right. Well, I am just trying to come to the crux of where Mr Berry disagrees with Mr Fransman. At paragraph 18 on page 6, Mr Berry says:

The 2016 Fees Regulations makes a distinction between ‘applications’, ‘processes’ and ‘services’ and list the registration of a declaration of renunciation of British citizenship as a ‘service’ . . . in connection with nationality.

Do you see that?

MR FRANSMAN: Yes, I see that.

MR NEWLINDS: Now, does Mr Fransman agree with that proposition that is what is said in paragraph 18?

MR FRANSMAN: Taken in isolation, I do not disagree with paragraph 18. There is a distinction between those things – applications, processes and services – those terms that are used - and the declaration of renunciation that is listed under service, not an application. Insofar as that goes, that paragraph is correct.

MR NEWLINDS: All right. Then, if we move to paragraph 21 on page 8, I think Mr Berry is explaining where he gets that from and it is from Table 20 of the 2016 fees regulations. Do you see that?

MR FRANSMAN: I see that, but you have missed out paragraph 20.

MR NEWLINDS: I was looking at 21 at the top of 8, I hope? There it is in paragraph 20.

MR FRANSMAN: I know, but before you get there, I need to take you to paragraph 20.

MR NEWLINDS: All right.

MR FRANSMAN: Paragraph 20 sets out - and this is me improvising, not being able to take you to the regulations themselves and so, as you said, I am relying on them.....paragraph 20 as much as I am going to be able to draw your attention to. As far as paragraph 20 is concerned, and it refers to Schedule 8 – now, in the fees regulations themselves, the preceding paragraph talks – it is referring to regulation 10. Regulation 10 says Schedule 8 shall have effect and then this paragraph.....Schedule 8. In Schedule 8 you will see that the first heading there in bold is “Interpretation”.

MR NEWLINDS: Yes.

MR FRANSMAN: You will see that the next heading in bold is “Fees for applications relating to nationality”. Now, this is important and I underline and draw particular attention to this. The way that they are set out here – and they are not as illuminating as looking at the actual regulations themselves, but the point is that “Fees for applications relating to nationality” is the heading that applies to both Tables 19 and 20.

MR NEWLINDS: Yes.

MR FRANSMAN: So underneath that you can see it says:

Tables 19 and 20 specify the amount of the fees for the specified applications, processes and services relating to nationality.

So, the important point that my construction rests on is that the heading “Fees for applications relating to nationality” is inclusive of everything underneath it, which is everything in paragraph – in Tables 19 and 20.

MR NEWLINDS: All right.

MR FRANSMAN: So, one needs to - before moving on to 21 and then in that context.....paragraph 21.....Table 20 specifically refers to a service when - - -

MR NEWLINDS: All right. Then Mr Berry’s conclusion is in paragraph 23 on page 8.

MR FRANSMAN: Yes, I see that.

MR NEWLINDS: Yes, and so what he says is for the application to be valid it does not need to be a fee because the application itself is not a service. That is what he says. The second thing he says is, but if you want to go to the next step and register the declaration of renunciation, that is a service and therefore the request for registration is not invalid. Can you all see that paragraph?

MR FRANSMAN: Yes, I see that.

MR NEWLINDS: Now, I wanted to ask Mr Berry a question at this point. I wanted to ask him whether he thinks that whether or not the application for renunciation was valid, whether it would nonetheless not be registered because of the absence of a fee.

MR BERRY: My view is that regulation 14 does not apply and that whilst a fee is required when you make the – when you make the request for the service it lies within the power of the Secretary of State to register the declaration of renunciation in the absence of a fee because the Secretary is able to exercise – to waive the fee in the exercise of administrative discretion or to collect the fee after having processed the – so having exercised – performed the service and registered the declaration of renunciation. In other words, the position is governed by ordinary administrative law principles and not by the any statutory rules such as found in regulation 14 which precludes the exercise of any administrative functions at the outset.

MR NEWLINDS: All right, thank you. Now, just going back to Mr Fransman, Mr Fransman, you place weight in the note that you have both done in reply on what the nationality instructions say in this regard, do you not?

MR FRANSMAN: Yes. So my position, just to articulate it clearly, is that because of the structure to which I have drawn attention, that Tables 19 and 20 are under the heading “Fees for applications relating to nationality”, my position is that although the renunciation process may be called a service or a process in general terms, for the purposes of these fees regulations, it is an application. That is the point of the heading, “Fees for applications relating to nationality”, and everything within Tables 19 and 20 are to be regarded as applications for fees purposes. So I just wanted to make my position absolutely clear lest there be any doubt about it.

Having said that then the position is that your question about the nationality instructions brings me to the point that, to the very, very best of my knowledge and belief, and there is evidence to support that knowledge and believe in front of you all, the position of the Home Office is that it takes the same construction as I do. That is to say, the Home Office regards, for fees purposes, the declaration of renunciation as an application and therefore it is subject to regulation 14. So if the fee does not accompany a declaration of renunciation then it means it is an invalid application. That is my position and, as I say, my belief is that that is the Home Office position, and that is reflected in the nationality instructions.

These things that we call the nationality instructions, I think we are going to have to slightly amend our terminology because there is a tendency just now to revise them and call them guidance rather than instructions. So forgive us if we alternate between referring to nationality instructions and nationality guidance. It is just that we are in a competition when it comes to terminology.

What it is is that once you got into the age of the internet, the Home Office put all its instructions to staff online; so its understanding of the law, the way it construes the law and most particularly its policies when it comes to the exercise of discretions are all published online. I went to that in my report and I included some relevant passages at paragraph 63 on page 15. So if you have got that there then you will see what is said there in respect of the nationality instructions or the nationality guidance relating specifically to renunciation. It says there:

An application must be made on Form RN and include the full fee.

The British Nationality (Fees) Regulations –

Now, that was.....:

provide that the fee for the registration of a declaration of renunciation shall be payable on submission of the declaration. This means that a declaration of renunciation cannot be registered until the fee has been paid.

Let me just pause there for a moment. If it came to that, then it could be that there is the policy not to register until you have paid. Now, because renunciation is a right, because it is an entitlement, those who put the.....because if they are waiting and waiting for the fee to be paid then the declarant who finally paid - you cannot wait any longer because you are restricting my entitlement. But if the next sentence which I have included there, which is important, is:

Where the declaration is not submitted with the full fee you must refuse to register the declaration.

You can only refuse - and something which is an entitlement, and if you have a proper legal basis for doing so, and that can only be because the application for renunciation – and I use the word “application” deliberately – is not valid. That would be the legal basis for refusing. So it is not just a question of not registering; it is also a question of you must refuse to register. That is why I draw attention to this and the indication that my instruction is the established and Establishment’s construction.

MR NEWLINDS: Now, can I just ask this question: whatever the nationality instructions or guidelines are, they do not have the force of statute or regulation, do they?

MR FRANSMAN: They do not. The Home Office application forms, the guidance notes that accompany the application forms, and everything that you read on the Home Office website does not have the force of law. And that is - - -

MR NEWLINDS: Correct. And so what follows - I am sorry, I cut you off. But if I may, what follows from that?

MR FRANSMAN: Let me just make the point. I was not referring to it because it is law, I am referring to it as an indication of how the Home Office construes the law. Sorry to interrupt you.

MR NEWLINDS: No, that is all right, but may I put this to you? As a matter of the law of England and Wales in relation to construing statutes and regulations, what the relevant government department thinks the law is is wholly irrelevant, is it not?

MR FRANSMAN: I do not think it is terribly relevant. I am sure that it is an argument about the construction of the provision or statute or secondary legislation and it concerns a particular department, then how they construe it really must be of some relevance surely. Whoever is advocating for the construction that is adopted by that department, I am sure the.....pointed out that that is how they construe it. Just because they construe it that way does not mean it is right. Only the Court will determine what is right and what is not right, but what I am trying to help you with is the applicable sort of situation that you are dealing with, and in that regard what Mr Berry and I are saying is that on this particular fees issue and that the matter has not been settled in court and it is court decision on it.

In the absence of the court decision on it, and in fact most of the nationality law has not had a court decision, so that what one does is you look at the provisions, you seek to construe them and the Home Office does exactly the same. They seek to construe provisions of nationality law and if a particular point is then corrected by a court, they will of course correct it, but meanwhile they have to do their best to construe it as they think right.....as well and so one proceeds on that basis. In the absence of a court case resolving the issue between me and Mr Berry on this fees issue and then I think that the construction of the relevant government department is certainly relevant.

MR NEWLINDS: All right, I understand that. But, of course, if this same issue came before a judge in England, that judge would be politely disinterested in what the Home Office thought the legislation and regulations meant, would he or she not?

MR FRANSMAN: No, I do not think so. I think that the judge would be interested to know that the Home Office has been construing it.....way and no doubt affecting a great number of people and I think the judge will take that into account. The judge is not going to decide that the Home Office construction is the right construction. I think the judge’s.....of law needs to be so, but I do not think the judge - - -

MR BERRY: Would it be helpful if I jumped in at this point?

MR NEWLINDS: Just before you do, Mr Berry, can I just ask one more question.

MR BERRY: Yes, of course.

MR NEWLINDS: Mr Fransman, do you accept that the Home Office has somewhat of a conflict because no doubt part of its remit is to collect as much fees as it can?

MR FRANSMAN: So are you saying that they are in conflict about what?

MR NEWLINDS: Well, about what they think the legislation means and how that might impact on their ability to extract fees from people.

MR FRANSMAN: No, I think that that is not right at all. I believe that it is the politicians here who will decide whether or not fees are to be paid, and the tendency has been over the.....for more and more applications, processes, services, call them what you will, to be subjected to a fee since the financial crisis of the past years have hit and the idea to make people pay their own way administratively.....These are political decisions and when orders are made and regulations made.....and then I believe that the Home Office dispassionately and not typically will apply the law. I do not think that they are going to be running around trying to construe things in order to make as much money as possible. I do not think that is the way it works here at all.

MR NEWLINDS: Okay. Now, Mr Berry, would you like to comment on Mr Fransman’s opinion, firstly, in relation to what he says about the heading to Schedule 8 of the relevant regulations and, secondly, what he says about the nationality instructions or guidelines?

MR BERRY: Yes, yes, I would like to deal with the heading points to start with. The first thing is that the heading seems to be construed in the context of the controlling primary legislation, the Immigration Act 2014, the Immigration and Nationalities fees order and the other places in the regulations, the fees regulations themselves where we find the term “applications, processes and services” used.

The second point is that the heading itself is necessarily brief because it is a heading and not, therefore, to be taken as necessarily accurate of what follows underneath it. My reason for suggesting that is that it is a canon of statutory interpretation in this jurisdiction that a heading within an Act, whether contained in the body of the Act or a schedule or a part of the Act, may be considered in construing any provision of the Act provided that account is taken of the fact that its function is merely to serve as a brief and, therefore, necessarily an accurate guide to the material to which it is attached. That is a section from the Code on statutory interpretation in our jurisdiction which is called Bennion on Statutory Interpretation, section 255.

So, the heading itself is relevant but not decisive and may be inaccurate because it is necessarily brief. We have an example of an inaccuracy in a heading immediately below that on page 7 of my report. You will see just above paragraph 4 of Schedule 8 “Multiple declarations of renunciation of British citizenship”, the term “citizenship” is used there and the reference is actually to declarations – multiple declarations of renunciation of British nationality meaning more than one form of British nationality, including British citizenship but extending to other classes of British nationality such as British overseas territory citizenship or British overseas citizenship.

So, we can see, even within the schedule, that a heading not only may be inaccurate but is inaccurate and then, secondly, we have the canon of statutory interpretation that a heading is necessarily brief and therefore partial, in effect.

Then, thirdly, the fact that it has to be construed in terms of the way in which it is used elsewhere in the regulation, the term “application” is used elsewhere in the regulation. What we see in the schedule is that the term “application” is broadly used for methods of acquiring British citizenship, not necessarily absolutely exclusively, and it is never used to describe modes of loss of citizenship. I mean, renunciation comes firmly under the “service” column in table 20 of the regulation.

MR NEWLINDS: All right. What do you say about the nationality instructions or guidelines?

MR BERRY: Well, I put in the joint note from us that went by email yesterday, I made reference to my position about paragraph 19.4 of the Nationality Instructions which do refer to the choice of the Secretary of State not to register a declaration of renunciation until the fee has been paid. What paragraph 19.4 does not do is refer to the invalidity rule in regulation 14 of the fees regulations.

It is simply not there and so my point is that as a matter of administrative law the Secretary of State is entitled to decide not to process a fee – a request to register a declaration of renunciation but she is not precluded from doing so by the invalidity rule found in regulation 14 of the fees regulations. What paragraph 19.4 said is at 19.4.3 “If no fee or only a part of a fee has been paid, the procedure in Chapter 6.5 - that is off the Nationality Instruction - should be followed”, but not imposing the invalidity rule.

If you go to Chapter 6.5 of the Nationality Instructions is this document I found this morning preparing for this evidence hearing, it said “From 2 April 2007 an application for registration or naturalisation” – and then in parenthesis – “(but not a declaration of renunciation) will be invalid if it is not accompanied by the prescribed fee”.

So, there is an express reference to not considering the invalidity rule to applying to declarations of renunciation. Now, it is only the Secretary of State – only the Secretary of State’s view and I agree that what the Secretary of State’s view is, is not decisive of a correct construction of the rules, that a judge would take the Secretary of State’s position in a published policy or by way of advocacy in court into account, but it is not to be considered, absent judicial imprimatur, the truth of the correct construction of the rule in question. That is a matter for a court here in England.

MR NEWLINDS: All right. Is there anything you want to say in response to what Mr Berry just said, Mr Fransman?

MR FRANSMAN: Well, there is a great deal more that can be said about all of this and as far as the position of the Home Office is concerned - and again I am sure that you wish to make a point in submissions about what the value of the Home Office construction of all this is.

But my point is that, rightly or wrongly, the Home Office position is to regard applications as including declarations of renunciation and as a result one that is not accompanied by the fee would be invalid and if you – if you go yourselves onto the Home Office website and look at the renunciation matters, it gives you links and – and having yesterday just followed those links, I cannot hold up the document and show you for obvious reasons, but if you were to do it yourself, then you come across a document very, very quickly and which is headed “Fees with effect from 6 April 2017”.

I understand that it changes year – each year these things change. But it says, “Fees with effect from 6 April 2017 for Citizenship Applications and the Right of Abode Including Reconsiderations”, et cetera, and it says “Type of Application” and under “Type of Application” is included “Renunciation of British Nationality” and it says, “Fees must be paid in full at the same time as you send your application to the Home Office. If the full fee is not provided, then the application will be rejected as invalid”.

Again, I am not saying that the Home Office is laying down the law, but what I am saying is that the Home Office has construed these provisions in the way that I construed them in my report. And to add to that, if we had ample time here, then I would draw your attention to the mischief that regulation 14 is intending to remedy. The whole point was that the Home Office were.....and put to considerable.....trying to chase people for the fees, and so a law was introduced that if you do not include the fee, your application will be invalid.

Now, in order for that to be meaningful, you then.....pretty widely, and there would be absolutely no.....there is a difference between application for naturalisation and what the Home Office calls an application for renunciation. And even in the case that we are concerned with here, if you look at the correspondence from the Home Office that are in the exhibit – exhibit 24, page 7 I think, you will see that they refer to them as an application. They refer to Senator Roberts as an applicant and not as a parent. And so the point is that there would be no point in distinguishing, given the mischief that is being remedied, between a.....for renunciation and an application for naturalisation, for example.

One could understand if there was a distinction between matters that were based on an entitlement and matters that were discretionary. One would then see that when it comes to entitlement, maybe you could not subject an entitlement to a rule or invalidity for want of a fee. But that is absolutely not the approach that is taken, an entitlement of.....to the validity provision, there are many forms of application for registration that are entitlement-based and there is no issue between me and Mr Berry about the fact that those are subject to regulation 14.

One should also look at the whole of regulation 14 to see whether my.....are going to be prepared to do that but apart from the time factor it appears that we do not have to.....but the exercise - - -

MR NEWLINDS: Sorry, can I just interrupt. Someone there is either eating a packet of chips or turning papers over close to a microphone - I suspect it is Mr Fransman.

MR BERRY: Sorry, it may have been that I was resting the papers on a flat microphone. I have taken them off.

MR FRANSMAN: .....rustling sweet papers, yes, when the other side was making their best point. But I think that.... But anyway I was just making the point that if I was to take you on a tour of the regulations, looking at certain schedules, if my construction that I articulated today and in my report is entirely consistent internally with.....Schedule 8 and with the whole of the regulation.

MR NEWLINDS: Okay, all right. Thank you very much. Can I move to the next and last topic which is the question as to whether the declaration itself contained a declaration that the particulars within it were true which is, I think, the requirement of paragraph 3 of Schedule 5 of the 2003 regulations and what I am looking at is page 11 of Mr Berry’s report of 18 September at paragraph (ii), towards the top of that page. Do you both have that?

MR BERRY: Sorry, can you just repeat the paragraph number.

MR NEWLINDS: It is paragraph 27(ii) - - -

MR BERRY: Yes, yes.

MR NEWLINDS: - - - on page 11.

MR BERRY Yes, we have that.

MR NEWLINDS: Now, Mr Berry, as I understand it, you think that the proper reading of the law is, there is no mandatory requirement for the use of words such as “declare” or “declaration”. What one must do is look as a matter of substance and see whether the document is holding the information in it out, as to be true. Is that your position?

MR BERRY: It is, if I could add one supplementary point to that. One of the reasons which I consider that to be true is that the sanction for knowingly misleading the Secretary of State by making a statement which is false in a material particular a criminal offence - which is effectively the long stop for controlling a situation which is the rider for, in section 46 of the British Nationality Act 1981, does not require – does not turn on whether or not there has been a declaration in any prescribed form of words, but simply on whether a statement has been made which is known to be false in a material particular. So, in other words, the control on misleading the Secretary of State through the criminal sanction does not require an expression of words to be made in a declaration. So, I should add that, in addition to the matters which I made clear in my report.

MR NEWLINDS: All right. Mr Fransman, you do not agree. Would you explain why, please?

MR FRANSMAN: Well, I do not think there is a great deal to say about the point. The requirement for the declaration, the contents of a particular document of proof, to my mind, must add something more, requiring the documents, the assertions of fact. I have looked at the 1 May 2016 email and I have looked at the 6 June 2016 email and plainly I have looked at them more than once. Initially my copies were not very legible but I have been provided with legible copies and I have looked them again. What they do is they contain assertions of fact and in order to give some sort of meaning to a declaration of truth, it must be more than merely an assertion of fact.

If I currently stand up and tell you my name and my date of birth, can you say that I made those assertions of fact and I declared them to be true just because I have asserted them. I mean, with the best will in the world, I am trying to stretch as far as I can, in order to be generous, I just find it very difficult to look at those emails and say that because they assert facts they are true. I do not think that can be right but.....you will deal with that in your submissions.

MR NEWLINDS: Well, Mr Fransman, with respect, if you said to me what your name was and your date of birth in an official document, I think I would accept that those statements made by you were intended to be conveyed to me as the truth. That would not be unreasonable for me to act in that way, would it not?

MR FRANSMAN: Well, whether that email is an official document is a matter of debate. That email is addressed to the British authorities essentially making an inquiry because that is what they were, they were making an inquiry at that stage. I do not think that that would necessarily be such an august matter that you could assume that the author is double-checking everything.....to be true.

But it is a matter of common sense surely that you assert something as a matter of fact but the purpose of the declaration of truth is to stop, to look it over and to state additionally look, I am really – I am telling the truth in what I am saying. That has to be the purpose of the declaration, but.....unlike the....point where matters of construing legal provisions and looking at the purpose of construction and mischief rules, et cetera, this is just a difference of opinion and I just have to be honest and candid about my view that a declaration of truth must involve something more than a mere social fact.

MR NEWLINDS: But you would accept, would you not, that it would all depend on the context of the overall communication?

MR FRANSMAN: I think that being as generous as I can, I would say that perhaps there are circumstances where the surroundings are so august and that is understood that there would have to be a particular importance on telling the truth.....I cannot rule out the possibility but I do not think, honestly, I could be more generous than that.

MR NEWLINDS: All right. Well, 6 June email was doing more than just asking for information. It was purporting to renounce whatever British citizenship this man had. Correct?

MR FRANSMAN: It – well, yes. It says – let me get it in front of me if you want me to look at it.

MR NEWLINDS: No, no, it is all right, his Honour has read it. But you understand that it is more than just asking for information, is it not, the second one?

MR FRANSMAN: Yes, yes, it says “With this email I renounce any British citizenship, should it exist”.

MR NEWLINDS: All right.

MR FRANSMAN: It is.....yes.

MR NEWLINDS: So, for your mind, it is a question of whether that state of affairs, what he is trying to do is august enough to convey with the body of the information a statement that it is true.

MR FRANSMAN: Mr Newlinds, I am really trying to be as helpful as I can. In all honesty I cannot say that this is a self-standing declaration of truth, but you do not need a nationality law expert to say that. I am saying it not because of any nationality law expertise I have. I am saying it as a barrister but.....person speaking from a common sense point of view. As a matter of fact, if the average person on the Clapham omnibus were to read this and to be asked whether it contains a declaration of truth I think they would say no. These are assertions of fact or intent; that is all. I think that is as far as I can take it.

MR NEWLINDS: All right. Now, Mr Berry is a colleague who you respect and admire his intellectual ability. Correct?

MR FRANSMAN: Of course, that goes without saying.

MR NEWLINDS: He holds the contrary view, so may we take it that you accept that this is a matter upon which reasonable minds might differ?

MR FRANSMAN: .....everything we discuss or just.....

MR NEWLINDS: Well, firstly, let us start with the declaration part - that is a matter of judgment.

MR FRANSMAN: Yes.

MR NEWLINDS: Yes, and on the fees - - -

MR FRANSMAN: Of course.

MR NEWLINDS: And on the fees issue, do you accept that his contentions are arguable and a conclusion that a reasonable person with appropriate expertise might come to?

MR FRANSMAN: Arguable, I mean, here I have to tread carefully. Mr Newlinds, if you are asking me if I were a judge are you asking me whether I would give permission, as it were, to - I would give permission for the case to go forward to a full hearing - - -

MR NEWLINDS: No, no – I am really asking you whether you think Mr Berry has run out of the paddock and has got it completely wrong or whether you accept that what he is saying is reasonable, albeit you do not agree with him?

MR FRANSMAN: I think that the construction of fees issue - from my point of view there is clear legislative intent and for that the wording that I have put in my report - and I certainly stand by that. I think that my construction is the establishment construction. I think that Mr Berry has come up with an alternative argument and it is not an argument that has been taken in courts as yet, but the established – the establishment view has prevailed for some years but nonetheless his alternative argument is there and I would say that it is not hopeless – it is not completely devoid of merit.

MR NEWLINDS: All right. Thank you. I am going to sit down now. Thank you very much, gentlemen. Mr Lloyd is going to ask you some questions and I hope he is not going to ask you to go on the full tour of the regulations.

MR FRANSMAN: Thank you.

MR BERRY: Thank you.

MR LLOYD: No, I think my friend, Mr Newlinds, has asked you most of the things I wanted to canvas, you will be happy to know. I did, however, want to ask you some questions about the fees matter which might be a different way of looking at it which may find common ground, although I do note that if you do find common ground and you might find that the High Court does not come to England’s rescue to explain to you how your rules do work on this regard.

Can I put a number of propositions to you on the fees matter and see if there is any difference between you? The first proposition is or the first question is in relation to the termination of British citizenship by means of renunciation, is it correct that British nationality is terminated only when a declaration of renunciation is registered?

MR FRANSMAN: We are in complete agreement on that and Mr Berry is nodding his head and he said yes, so that is absolutely agreed between us.

MR BERRY: Yes, it is. Registration is required for - - -.

MR LLOYD: Thank you. My next question is, is it correct that the Secretary of State must charge a fee for carrying out the registration of a declaration of renunciation of British citizenship and, in that regard, I am referring to section 3(1) which is on page 5 of Mr Berry’s report.

MR FRANSMAN: Yes, so this is the - - -

MR BERRY: The fees order.

MR FRANSMAN: The fees order. Article 3 provides - so that is Article 3(1) at the very top of page 5:

The Secretary of State . . . must charge the fee specified in fees regulations in respect of the exercise of the functions in connection with –

So, yes, it appears that the Secretary of State must charge – are there waivers - - -

MR BERRY: There is no waiver in the – the fees order, the role of the fees order is to set the framework within which the actual fee will be set so you would not expect an express statutory waiver there. It is the fees regulations which prescribe the approach of the Secretary of State. But, in my view, there is a long stock - the Secretary of State must charge a fee but can choose as a matter of administrative law whether or not to waive it if required and has chosen not to in the nationality instructions.

MR LLOYD: Yes.

MR BERRY: In my evidence I gave you the reference at paragraph 6.5 of the nationality instructions which make express reference to not considering a declaration of renunciation to be invalid for want of a fee.

MR LLOYD: Yes, I understand that. I am getting to that. Yes, I understand that. You have both agreed that there is a duty on the Secretary of State to charge a fee for the registration of a declaration of renunciation?

MR BERRY: Yes.

MR LLOYD: And you both agree that that fee, at least at the relevant time period, was £272?

MR BERRY: Yes.

MR FRANSMAN: Yes.

MR LLOYD: Is it correct that if an otherwise compliant declaration of renunciation – by that I mean just assuming one has filled in under the RN form and everything is filled in correctly, so compliant in that regard – was provided to the correct authority but without a fee – assume those things – is the Secretary of State under an enforceable duty to register the declaration?

MR BERRY: In my view, yes. The Secretary of State has no choice and therefore if the prescribed manner for a declaration of renunciation, as controlled by section 12 of the 1981 British Nationality Act – if all the prescribed elements of that are in the prescribed form in Schedule 5 are made to the prescribed authority then the Secretary of State is obliged to register the declaration of renunciation. If she fails to do so then you would be able to bring an application for judicial review and seek a mandatory order to seek mandamus to direct her to do so.

MR LLOYD: And Mr Fransman?

MR FRANSMAN: If an RN form is duly completed in every respect save for the fee and is put before the Secretary of State, is the Secretary of State obliged to register it? Is that your question?

MR LLOYD: That is the question, yes.

MR FRANSMAN: It would be my view that the Secretary of State is not obliged to register it and, indeed, cannot, because if it lacked the fee it is not a valid application.

MR BERRY: I am sorry, I should correct my - I did not understand it to be a question directed towards the question of whether the fee needed to be paid. I was referring to the provisions of the 1981 British Nationality Act and the British Nationality Regulations and general regulations made underneath it, not to the fees regulations which are made under the Immigration Act 2014.

MR LLOYD: If there is any ambiguity, if I make it clear, I am looking at the practical effect of all of the laws. If somebody had a compliant form and they sent it to the Secretary of State, asked him to sign it and the Secretary said, “You have not paid the fee,” and the Secretary says, “I must charge a fee for that,” is it your view in any event that somebody could get mandamus to compel the Secretary to register it without having the fee paid in advance?

MR BERRY: I should clarify my earlier statement. It is my view that the Secretary of State must charge a fee, and if the Secretary of State wishes to insist upon the payment of that fee, she is entitled to do so. Therefore a person who has complied with all the prescribed requirements other than the payment of a fee, who has not paid the fee, would not be able to seek mandamus or a mandatory order to compel the Secretary of State to register the declaration of renunciation. The requirement to pay the fee means the Secretary of State is entitled to choose to insist upon the fee irrespective of the non-inapplicability of the invalidity rule in regulation 14 of the fees regulations.

MR FRANSMAN: I think that means that Mr Berry and I are agreed on the same answer, albeit for different reasons.

MR LLOYD: Yes, that is how I understood the answers. Can I then take you to the next question? If there is not actually a duty to register if the fee is not paid, having regard to the applicable policy, which is to require the fee to be paid, would you both accept that if the fee was not paid, even in respect of an otherwise valid declaration of renunciation, it would not be registered, as a matter of practical reality?

MR FRANSMAN: Yes.

MR BERRY: Yes, the Secretary of State chooses to insist upon the fees then it would not be registered, yes.

MR LLOYD: In terms of discretions to not insist upon the fee, is there that you are aware of, Mr Berry, any kind of ruling or guidance that would suggest that somebody would be eligible for a waiver without even asking for it or indicating any particular basis for it?

MR BERRY: There was no statutory rule at all - on my construction there is no invalidity rule which applies at all to processes or services. The matter is just simply a matter of administrative law effectively under the common law whether the Secretary of State could waive a requirement to do so but I know of no published policy that she would do so on prescribed criteria simply that her practice was to try and collect fees.

Where an application had been made – where a request for a service had been made to register a declaration of renunciation and a fee had not been paid it was a practice of the Secretary of State to chase unpaid fees and that is across the whole range of applications, processes and services that the Secretary of State operates in respect of nationality law.

MR LLOYD: Thank you. So, it is then correct that as a matter of practical reality if the email of 6 June had been sent to the Home Office instead of to wherever it was sent but without a fee, are you both of the view that it would not be registered?

MR FRANSMAN: That is certainly my view, yes.

MR BERRY: It would have been open – if a person was destitute, in the absence of the invalidity rule, if a person is destitute and unable to pay the fee the Secretary of State could have sought the fee in a case like that. If that person said I simply cannot pay the fee, then it would be a choice of the Secretary of State as to whether or not she wished to insist upon the fee. But, in this case, under the current provisions, obviously destitution does not arise and the Secretary of State was entitled to insist upon the fee. Had it been sent email of 6 June to the appropriate authority, the Secretary of State at the Home Office, then the Secretary of State on her current practice would not have registered the declaration of renunciation.

MR FRANSMAN: I would just add that the fee regulations apply to many, many different kinds of applications and other functions right across the board – immigration, nationality, consular and as far as I am aware the variable.....wrong - the Secretary of State is not sympathetic to policy. That I think has been one of the politically contentious issues relating to the imposition of such minor scale fees and with these fees being increased the whole time and the policy – the institution of the.....process, is not something that the Secretary of State would readily accept in terms of waiving fees.

MR BERRY: .....Secretaries of State change according to their compaction of a party and office and the current Secretary of State position, indeed, the former Secretary of State position, may not be a steady guide to the doctrine of waiver in administrative law but they are certainly unsympathetic to the poor. I think that would be uncontroversial.

MR LLOYD: Thank you. Before I sit down, your Honour, could I ask that there was mention of a joint note. The version I had actually does not say that it is filed. Does your Honour have that? While his Honour is

looking, can I ask, gentlemen, can you just confirm that you prepared or perhaps you, Mr Berry - - -

MR BERRY: I sent to my instructing solicitor - Attorney yesterday the agreed bullet list of our joint position. If you need it in a particular form, let us know and we can prepare it now but it was sent yesterday in an email form.

MR FRANSMAN: In fact, I tendered the exact same document to Simon Daley at the AGS.

MR LLOYD: Thank you. We are not asking in a different form, I can just hand a copy up if your Honour does not have it. It is just that I saw that it was not filed. If we could file that, your Honour, but I have no further questions for the experts.

HIS HONOUR: Thank you, Mr Lloyd. Gentlemen, thank you very much. We will sign off now and we wish you a good day, and thank you very much for your assistance.

MR FRANSMAN: Well, that is a pleasure. Thank you very much. It has been a good experience for us as well. We just regret that we were not able to establish visual contact as well, but there you have it. Thank you very much indeed for staying late in order to accommodate our time difference.

MR BERRY: Yes, thank you very much, particularly for the time zone accommodation.

HIS HONOUR: Cheerio. Thank you.

MR BERRY: Thank you. Okay, bye.

MR LLOYD: I think where that leaves us, your Honour, is that my friend had finished his pre-emptive almost final submissions and I was about to do a reply. I do not know if he wanted to finish anything he wanted to say in light of that and I will just do a reply.

MR NEWLINDS: I will just say what I want to say about the experts, which is in light of that evidence I would concede that what was sent, if it was sent to the correct – leave aside the declaration question. If the email had been sent to the Home Office, to pick up a phrase from another area of law, it was not in registrable form and therefore did not have to be registered. It engaged a discretion potentially and it seems a matter of practical reality the discretion would not have been - - -

HIS HONOUR: Well, it might have engaged a discretion, but it certainly was not compellable.

MR NEWLINDS: Correct.

HIS HONOUR: No considerations apt to move a favourable exercise of the discretion were identified.

MR NEWLINDS: Exactly. So I think I concede that the attempt to renounce failed firstly because it did not go to the Home Office; secondly, because it did not have the fee. I do not concede the other issue. I will leave that for your Honour. It is a question of - - -

HIS HONOUR: I must say, Mr Newlinds, I thought there seemed to be some force in what Mr Fransman said, his point that the declaration of truth, if you like, reflects the declarant standing back looking at the content of the declaration and as a separate and distinct act declaring it to be true. That seemed to have some force, I thought.

MR NEWLINDS: Yes, although Mr Berry’s answer is, but for the purpose of whether you break the criminal law or not, there is no requirement for there to be a formal form of words. In other words, if it conveys an untruth – an untrue fact, you are guilty of criminal misconduct.

HIS HONOUR: Yes, but that is looking at sanctions for non-observance. Before you get to sanctions for non-observance, you should be looking at how the thing can work sensibly to achieve the result that true things are said, rather than punishing people for saying untrue things.

MR NEWLINDS: Well, yes, your Honour has the argument the – what that means though is that you really are saying there has to be some form of words, not necessarily with the word “declare” in it, but there needs to be something that says, “And I say this is true” or something. Yes, well, I am not going to - - -

HIS HONOUR: “I confirm the truth of the foregoing”.

MR NEWLINDS: I am not going to concede that one, your Honour, but I will leave it to – I think I have otherwise finished.

MR LLOYD: Your Honour, I will be very brief. I said earlier about the function of the Court with respect to expert evidence. We have a folder here which just we say has cases and we just give the references to page numbers which may be of assistance to your Honour in terms of the notion of what a court should do with experts on foreign law.

HIS HONOUR: Mr Newlinds has copies of these?

MR LLOYD: We provided them to him a little while ago, but not long, I accept, no. In relation to my friend’s submissions, he made the point that the law is complex and that, at least in theory, he could have gone to see Mr Fransman and Mr Fransman would have advised him to put his application in to the wrong place and that would have been effective. I have to accept that as a hypothetical, plausible, could have happened. But we would say that something – if he had done that, that might very well be seen as taking reasonable steps. So, if he had gone to an expert and the expert said “This is what you need to do” and you did that, that is just not the position he is in.

In relation to the formulation, I think in cross-examination we said real possibility, not far-fetched, and in the submissions I think we say real and substantial prospect - I am not in any way distancing the language. I am content with real possibility, not far-fetched, but we do not think that is different to real and substantial prospect and then all of these words are a bit nominal. But, I mean, what we would say is there is a kind of possibility which is far-fetched or unreal, insubstantial sometimes is used, remote sometimes. It was not that kind of possibility.

There is another possibility which is more likely than not. We are not saying it is more likely than not. We are saying it is in that other gap, so it is a real thing, it is not a far-fetched thing, and that is what we say. In Senator Roberts’ evidence he said in relation to what he was doing at one point that in deciding whether to press on and sign the form he said he weighed the pros and cons. I accept I did not ask him further what he meant by that, but it was sort of a rational decision of accepting that there was some risk involved is what one gets and he took his chances and we say that that is something to be weighed into the balance.

My friend said that he did the very thing that the handbook said to do. I accept that he attempted to do one of the things the handbook said to do. The handbook also suggested getting legal advice. He did not do that, so we take issue at that point. Then, although I think in light of your Honour’s questioning this point did not last long, but my friend said in relation to the concept of Senator Roberts’ connections with the United Kingdom is that he had zero connection. Your Honour observed that his father was born there. We would say another kind of connection is he was registered there as a citizen and another connection is in paragraph 6.6 of his affidavit he said he went there to visit relatives, so he has relatives there. It is not all that foreign.

Now, in relation to the experts, there are only two issues. We certainly say on the declaration point, or the declaration of truth point, that

it is in the clause – a separate clause to the other requirements to state names and addresses. It is over and above that and Mr Fransman’s advice is compelling and we would ask your Honour to accept that.

On the fees point, I sought in my questioning to find a road to some level of commonality which I think we got to which leaves open the question – or the Court does not have to, as much as your Honour might want to resolve the question of validity of these things - - -

HIS HONOUR: Surprisingly, that is not all that attractive.

MR LLOYD: But your Honour, we say, could leave that open and satisfy yourself with finding that the experts accepted as a practical matter that sent in the form it was in it would not be registered and therefore it would not have brought it to an end. We are content with a finding to that effect. May it please the Court, that is all we wish to say.

HIS HONOUR: Thanks, Mr Lloyd. Mr Costello, you are content to - - -

MR COSTELLO: Thank you, your Honour.

HIS HONOUR: It is my hope that - I will do my best to deliver my findings and reasons tomorrow afternoon. If I cannot do that – if it becomes apparent that I will not be able to do that by 4.45 – that is to say, deliver them by 4.45 – I will let the parties know and it will have to be Monday. As I say, I will do my best but there is a bit to do.

Can I say it would not be my intention to do anything more than deliver the findings and reasons. I would not propose to say anything about costs or any consequential orders, so that so far as the Court is concerned, there is no need for counsel to attend, unless you wish to obviously, but there is no need to. If it becomes apparent during the course of the day that the 4.45 deadline just will not be met, then we will let the parties know as soon as that becomes apparent.

MR LLOYD: Your Honour, I do not want to be unduly presumptuous, but there was a section in our written submissions that had a number of what might be called background findings which I think except for two or three my friend identified - - -

HIS HONOUR: That would be very useful.

MR LLOYD: Would your Honour like an electronic copy of that?

HIS HONOUR: That would be great.

MR LLOYD: We will arrange that.

MR NEWLINDS: Can I thank the Court and the Court staff for accommodating what was a rather large case in just one day.

MR LLOYD: Indeed.

HIS HONOUR: Thank you, gentlemen. I am sure the Court staff appreciate it, as do I. Thank you very much for your assistance. Adjourn the Court please.

AT 6.21 PM THE MATTER WAS ADJOURNED