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Decision day for the High Court case into this whole dual citizenship saga. For anyone whoâs interested in how this might go down, a friend has shared an analysis of how the Supreme Court might decide, so feel free to have a read!
Well, Michaelia Cashâs position is untenable. Hereâs what we now know: on Tuesday, Minister Cashâs senior staffer tipped off media about raids that were about to occur. On Wednesday morning, minister Cash spent some time with that senior staffer and then fronted up to the Senate and said, not once, but five times, that neither she nor her staff had anything to do with it. It turns out that was completely untrue. So thereâs really only three options â either minister Cash is incompetent at running an office, in which case she should resign as minister. Secondly, she either doesnât care whether she tells the truth to the Senate, in which case she should resign at minister. Or, thirdly, she deliberately lied to the Senate, in which case, she should resign as minister.
Adam Bandt (source)
This AWU raid
This story has escalated quickly!
Whatâs happened:
The Registered Organisations Commission (a union watchdog set-up after the governmentâs Royal Commission into unions) has been investigating donations from the Australian Workers Union to Get Up and to three Labor campaigns (including Shortenâs) which occurred back when Shorten was the head of the AWU, to make sure that those donations were made in accordance with AWU rules. This investigation was following referrals from the government.
On Tuesday, the ROC instructed the Australian Federal Police to attend the offices of the Australian Workers Union to secure documents relevant to their investigation, apparently following an anonymous tip-off that said documents were being destroyed or altered.
By the time the AFP turned up to AWU officers, media had already gathered, which indicated that they had been tipped off by someone about the impending raid.
The AWU strenuously deny destroying or altering any documents, saying that the documents in question had previously been provided to the royal commission and the AEC.
Yesterday, government minister Michaelia Cash faced questions in Senate estimates about the tip-offs and five times denied that her or her staff were responsible, asserting that she knew nothing of the AWU raids until they were reported in the media.
The Prime Minister also faced enquiries in Question Time about whether Michaelia Cash or her office were responsible for the tip-offs. He said that he had been assured by Cash that she was not responsible, but brushed off enquiries about her staff.
Yesterday evening, Buzzfeed Austalia published an article reporting that Cashâs office was in fact responsible for the tip-off to the press.
Subsequently, Cash advised the Senate that a staff member had admitted to her that he was responsible for the tip-offs, but denied any knowledge of his actions and reiterated that she was not aware of the AWU raids until they were reported in the press.
Cash asserted that her staff member had found out from a journalist that the AFP were planning to raid the AWU, but that she still didnât know about the impending raids.
There are reports that the staff member in question was present when Cash made assurances to the Prime Minister, but still didnât say anything until after the Buzzfeed report.
If this was an attempt to make Shorten look bad, itâs backfired. Now it just looks like the government have sicced the police on their political opponents and may have been dishonest in trying to deny their involvement.
It looks especially bad for Michaelia Cash.
High Court are going to hand down their judgment on this dual citizen saga on Friday at 2:15pm, which is plenty of time for us to get our popcorn ready!

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âMalcolm Robertsâ lawyer has claimed itâs âunAustralianâ to discriminate between immigrants and people born in Australia during his defence of the One Nation senatorâs election to parliament.â
OH MY GOD OH MY GOD OH MY GODÂ
Lol, it's even funnier because on one hand he argues that the test applied by the High Court should be the same for everyone, regardless of whether or not they were born in Australia, but on the other hand, he argued that Roberts' case should be treated differently to previous cases because Roberts was at least a citizen of the British empire and not of some non-British country. Which is kinda exactly the sort of argument you'd expect from One Nation!
Third day of High Court hearing into this dual citizenship fiasco due to start soon. Given the complexity of the case, Iâm not expecting the Court to hand down a judgment today, but I expect theyâll try to make it as soon as possible given the, um, chaos that further delay would inevitably cause the government.
Day 2 transcript is available here, btw.
Third day of High Court hearing into this dual citizenship fiasco due to start soon. Given the complexity of the case, Iâm not expecting the Court to hand down a judgment today, but I expect theyâll try to make it as soon as possible given the, um, chaos that further delay would inevitably cause the government.
In contrast to counsel for the Greens senators, the counsel representing Tony Windsor (whoâs arguing that Barnaby Joyce should be disqualified) apparently didnât get as many interruptions from the judges. So, we probably shouldnât read too much into the response to the Greensâ case.
Honestly, I think itâs very possible that the High Court will find differently in respect of each of the different MPs before the court are or are not disqualified. For example, thereâs a big difference between Nick Xenophonâs case and Malcolm Robertâs case, in terms of what sort of circumstances should have caused them to be aware that they were dual citizens.

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Apparently lawyer for Greens (arguing that all MPs currently before the High Court are disqualified) is being given a harder time by the judges. Dunno whether thatâs a sign that the Court is leaning towards some permutation of the governmentâs argument or whether itâs just cos the Greens lawyer was taking too long to get to his legal arguments.
Honestly, I donât know that the Greensâ argument is that far from the government argument. From todayâs liveblog in the Guardian Australia, counsel for the Greens MPs argued:
If Sykes and Cleary applies in terms of the qualification than it must apply in terms of reasonable steps to any person who has knowledge of the facts ought to have prompted proper enquiry
Candidates, nominees for the high office of the parliamentarian have a duty at (least at a) general level to comply with the constitution...
It is a simple task that should not be overlooked to make inquiries...not merely (to be) honest, but accurate, or should we say that they are diligent to be accurate or careful to be accurate.
If one is to give a coherent interpretation to the section as it has been applied to for Sykes v Cleary which was relied upon for Sue v Hill... then it is our submission it is difficult to see where one can avoid a situation where a person who knows facts that could relate to a potential conflict with section 44 and doesnât take steps to address it, (flies in the face of the reasonable steps precedent).
Key difference is that the government is arguing for a test based on the subjective knowledge of a candidate, whereas the Greenâs test is based on a more objective question of what a reasonable person in the position of a candidate would have known.
Apparently lawyer for Greens (arguing that all MPs currently before the High Court are disqualified) is being given a harder time by the judges. Dunno whether thatâs a sign that the Court is leaning towards some permutation of the governmentâs argument or whether itâs just cos the Greens lawyer was taking too long to get to his legal arguments.
Day 1 transcript in the dual citizen case is now available, for anyone whoâs interested.
Reading it, I can see that the governmentâs case is based around the voluntariness of obtaining or retaining foreign citizenship. Thatâs where their arguments about lack of knowledge come from: if you didnât know that youâd ever held foreign citizenship, you canât be said to have voluntarily obtained or retained it. Theyâre basing that argument around the intent of section 44, which was to avoid split allegiance.
I dunno whether the Court were convinced by that argument, though. Weâll see.
In terms of how that fits in with previous case law (Sykes v Cleary and Sue v Hill), the government argues that those cases should be distinguished as the candidates in question were foreign born and therefore knew that theyâd held foreign citizenship, and that in those circumstances it was on the candidates to show that theyâd taken reasonable steps to renounce that foreign citizenship:
But, in our submission, Sykes is reasonably explained on the basis that in circumstances where a person undoubtedly is aware that they have possessed a status as a foreign citizen in the past, that a failure to do what is reasonable in all of the circumstances to divest oneself of that status is properly characterised as a voluntary retention of it.
Now, that does not challenge the finding about the subjective state of knowledge, but the subjective state of knowledge is not lack of knowledge of the connection; it is lack of knowledge of the enduring connection in circumstances where it necessarily follows on the finding made by the Court in Sykes that there were reasonable things that should have been done that had not been done.
I donât know how easily that sits with their submission that the actual subjective knowledge of a candidate is the key factor, since the candidates in Sykes both subjectively (but erroneously) believed that theyâd renounced their foreign citizenship through being naturalised as Australian.
Justice Gagelar did offer a lifeline on that point, though, on the basis that the dual citizen candidates considered in Sykes were unsuccessful candidates in an electorate where the successful candidate was disqualified for a different reason (for office of profit under the crown):
Mr Solicitor, there is another possible reading of Sykes, and that is, in focusing on the circumstances of Mr Kardamitsis the Court, or at least the majority, was only concerned with his status for the purposes of the by-election that they held was to occur. Â At that point, Mr Kardamitsis knew of his foreign citizenship and had not taken reasonable steps. Â So that is a possible reading of what was being discussed, rather than any focus on his historical circumstances.
The Court to absolutely seem willing to consider the possibility that it isnât as simple as dual citizenship automatically making someone disqualified - for example, Justice Gordon says:
Just stopping there though, the plurality and Justice Dawson accept because of the way in which the circumstances fall out that dual citizenship of itself is not determinative and once you start from that proposition then one has to work out what it is that brings about the disqualification. Â So both of them - both the plurality judgment and Dawson acknowledge, as they must, that even though you have dual citizenship that itself cannot be a complete answer.
However, Iâm not sure that theyâre convinced by subjective intent to obtain or retain citizenship being the key element. For example, Justices Gagaler and Edelman both noted that Senator Roberts canât really be said to have voluntarily retained his British citizenship, when heâd sent emails to try to renounce it, even though the government are submitting that Senator Roberts should be disqualified when he hasnât made reasonable efforts to renounce his British citizenship.
I can absolutely see the court taking a middle ground of looking at what a reasonable person in the position of a candidate would have known or suspected, especially when it fits with the governmentâs arguments which distinguish between natural-born Australians and naturalised Australians:
There is nothing fictitious about saying â and it being taken of a person who seeks naturalisation â that they knew of the antecedent citizenship.Â
For example, Justice Nettle points out that it seems to be a different standard for natural-born Australians and naturalised Australians to only assume that naturalised Australians should have accurate knowledge of their citizenship status:
So that is constructive for foreign-born citizens but only actual subjective for natural-born citizens.
It is true, but to take the third respondent in Sykes v Cleary, he thought honestly he had done all that was required to rid himself of his foreign citizenship, and yet you say he is to be taken as knowing that he needed to do more.Â
Justice Edelman also raises the possibility of an âobjectiveâ test based on a reasonable person in the position of the candidates:
 If one assumes that the reasonable renunciation test in Sykes v Cleary is not limited to exorbitant laws and accepts that a requirement of reasonable steps to be taken for renunciation would not include unreasonable steps but those which are believed to be sufficient, why would not the concomitant of that be a requirement of reasonable knowledge and belief, rather than one of actual knowledge or belief or perhaps wilful blindness?Â
The government try to answer by drawing a distinction between a standard actual subjective belief for knowledge of citizenship and reasonableness for actions taken to renounce once one has that knowledge. Iâm not sure if that works, when the actions taken by candidates are going to play into what they subjectively believe about their citizenship status.
Itâll be interesting to watch how the judges respond when those arguing for a stricter interpretation of section 44 start making their submissions. I feel like that might give some further indication of where the court is leaning.
NETTLE J: Is not the more logical conclusion that Sykes v Cleary was wrong?
MR DONAGHUE: Well, your Honours, we do not seek to dissuade your Honours from that, but we do not challenge the case.
GORDON J: Because if it was wrong, and you looked at voluntary act, then you would not need any of your knowledge element.
MR DONAGHUE: You would not; that is so.
GORDON J: It would suffer none of the certainty requirements and complaints that are made against you.
MR DONAGHUE: That is also so. There would be a clear and bright line, strongly suggested by the history, which was not examined by the Court in Sykes.
GORDON J: Well, it is the history. The history is there had to be a positive act.
MR DONAGHUE: Yes, indeed, and not only that, but that 44(i) was directly modelled on that positive act requirement and stayed in that form until it was amended by the drafting committee in a way that said it did not intend to change it. So one could strongly support that conclusion but not without overruling Sykes. Now, Sykes, of course, was, as everybody I think concedes on the 44(i) point, obiter because the case turned on the office of profit under the Crown ruling in relation to Mr Cleary, and then the Court said, having ruled that Mr Cleary was not qualified and that there needed to be a fresh election said, in those circumstances, it should deal with the 44(i) point so that Mr Kardamitsis and Mr Delacretaz knew whether they could validly stand in the by-election that was to follow the ruling.
KIEFEL CJ: Nonetheless, it has been around since 1992 and some people would have arranged their affairs accordingly.
MR DONAGHUE: Your Honour, I do not deny that and that is partly why we are not inviting your Honours to overrule it, but it does suffer from the deficiencies that I have identified.
GORDON J: Is there a middle ground? Is there a ground which says that one looks at positive act in terms of Australian-born, so you get citizenship by birth, i.e. not the category being dealt with by Sykes v Cleary and limiting it to the history, limiting it to a positive act without this necessary knowledge element attached to it?
MR DONAGHUE: Well, for the persons born in Australia?
GORDON J: Yes.
MR DONAGHUE: Yes, that is an available path, and then one has to deal with Mr Ludlam and Senator Roberts separately, but we submit that their cases are just governed by Sykes.
GORDON J: That is what I am saying. So put them to one side with Sykes and deal with your first five categories. Is it not possible consistent with history just to deal with it by reference to positive act without your knowledge element?
MR DONAGHUE: Yes, your Honour, I accept that that would be entirely consistent with the history and the consequence of that would be that someone who is a dual citizen by birth, even if they know that they are a dual citizen by birth, could continue to sit in the Parliament. So it would not have been necessary for any of these senators or parliamentarians to renounce their foreign citizenship. But that would entirely accord with the historical position, that state of affairs.
Day 1 transcript in the dual citizen case is now available, for anyone whoâs interested.
Reading it, I can see that the governmentâs case is based around the voluntariness of obtaining or retaining foreign citizenship. Thatâs where their arguments about lack of knowledge come from: if you didnât know that youâd ever held foreign citizenship, you canât be said to have voluntarily obtained or retained it. Theyâre basing that argument around the intent of section 44, which was to avoid split allegiance.
I dunno whether the Court were convinced by that argument, though. Weâll see.

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Day 1 transcript in the dual citizen case is now available, for anyone whoâs interested.
I see lots of people on social media saying âIgnorance isnât an excuseâ in relation to this whole dual citizenship saga, since âI couldnât be expected to knowâ seems to be the governmentâs main case to the High Court.
And itâs a nice quippy phrase, but the truer legal statement is that ignorance of the law isnât an excuse. There are heaps of situations where being unaware of facts that cause you to be in breach of a law might be relevant. Think of it as the Schapelle Corby defence: youâre not claiming that you were ignorant of the fact that drug-trafficking is illegal; youâre just claiming that you had no way of knowing there were drugs in your suitcase. That can be a valid argument in some contexts, assuming that the court actually believes you had no idea about those drugs.
In this case, Iâd be really, really surprised if the High Court decide that the actual subjective knowledge of candidates is relevant to whether someone is disqualified from parliament pursuant to s 44(i) of the Constitution. Iâd be less surprised if the High Court found that it was implied into the section that someone isnât disqualified if they couldnât reasonably be expected to know or suspect that they were âa subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign powerâ.
...Of course, even if the High Court adopted that interpretation, thereâd still be the question of how it applies to each of the MPs in question, since thereâs an argument that a reasonable person in their respective positions would have realised that citizenship by descent is a thing.
With the High Court, though, who knows how theyâll rule. Thereâs not a lot of case law on this question, and there are a lot of different ways that the Court can interpret s 44(i) in light of what case law exists. My main point is that itâs not really safe to say that this is a done deal and those MPs must definitely be disqualified. The law isnât necessarily that simple.