Malcolm Roberts has conceded in the high court that he signed his senate nomination form thinking there was a possibility he held dual citizenship that made him ineligible to stand.
But the One Nation senator said that “the level of my possibility was very low”, insisting he simultaneously held a “firm belief” he had only ever been Australian.
However, in the hearing in Brisbane on Thursday, Roberts’ own barrister said contrary to his evidence, it was “inevitable” the court would find he “understood at some level he probably was British” before he was naturalised as an Australian in 1974.
“He’s talked himself into a different belief about this,” barrister Robert Newlinds said, adding it was for the judge to decide how that went to his credit as a witness.
Awareness of his past British nationality will be a factor in the court’s ruling on whether Roberts, born in India to a Welsh father, took “reasonable steps” to renounce dual citizenship before nominating for the senate on 8 June last year.
Roberts is one of seven federal senators and MPs, whose eligibility for office under a constitutional provision that rules out dual citizens, will be decided by the court.
Newlands said he accepted expert evidence before the court that Roberts had been a British citizen by descent when he nominated.
But Roberts, under cross-examination from barrister Stephen Lloyd, repeatedly insisted that “in all my dealings with the British government, it is still not clear in any way that I ever had British citizenship”.
That included receiving confirmation of his renunciation of British citizenship from the UK Home Office after he was elected and Roberts’ wife had chased up formal paperwork to renounce.
Lloyd repeatedly pressed Roberts on whether he now conceded, given the evidence before court and his own lawyer’s acceptance of it, that he had been a British citizen when nominating.
But Roberts repeatedly answered that he would check with his barrister before conceding this.
Roberts, who did not have a passport until he was formally naturalised as an Australian in 1974, told the court he believed from “family conversations” that he had always been Australian.
He said he signed his candidate application form for One Nation on 29 April last year with “absolute conviction” he was eligible. It was only days later “after reflection” on his birthplace and his father’s British citizenship that he considered the possibility he was a dual citizen.
Roberts emailed the British consulate on 1 May with an email headed “am I still a British citizen?” but Lloyd said the two addresses he found, probably via Google, were no longer in use.
He agreed with Lloyd that he filled out his senate nomination form on 3 June thinking this was still a possibility. Roberts said after he “became annoyed at getting no answer from the British consulate” he sent another on 6 June to the same addresses, and a third invalid one, saying he renounced his citizenship “just in case”. He never received any response to the emails, none of which reached consular officials. On 8 June, he lodged his nomination form with the Australian electoral commission, the date by which he is supposed to have renounced dual citizenship.
Roberts said by then he had arrived again at a “firm belief” he was Australian, despite not having received any advice from overseas authorities or lawyers.
Lloyd asked if it was fair for Roberts to characterise as an “investigation involving analysis” his steps to that point: reflecting on “how you felt being Australian”, checking a visa to India for a later visit showing he was an Australian, and sending “an email that got no response”.
Roberts said it was, but that he had subsequently asked his sister, Barbara, who “said we were stateless”.
He told the court he signed a form for Australian naturalisation at 19 – which indicated he was a British citizen – but did not read it, with his sister, then 16, filling out paperwork for him.
Newlinds said it was obvious that Roberts could have done more – such as see a lawyer, visit the UK consulate in person or source paperwork as his wife later did.
But Newlinds argued he had taken reasonable steps “in good faith believing it was the best he could do” to ensure he was not a dual national.
“He actually didn’t turn a blind eye to the situation. He tried to do something and get to the bottom of it,” Newlinds said.
The court heard expert testimony Roberts would have been an Indian citizen by birth but that he automatically lost this on becoming Australian in 1974 after arriving in 1962.
Lloyd, speaking ahead of expert testimony on UK citizenship laws, said he would argue that even if Roberts’ 6 June email was a valid way of renouncing his British nationality, it did not take effect.
This was because he sent it “not to the right place” – which should have been the Home Office instead of a consulate or high commission - and “failure to pay the fee” for his renunciation to be registered, which was when his UK citizenship formally ended.
The hearing continues.