ALP racist stunt thrown out of court

This morning the ALP announced it would contest the election of Lucy Gichuhi to the Senate on the basis that she was a Kenyan dual citizen.

Didn’t take the court very long to deal with that:

 In a High Court directions hearing this morning, Labor’s lawyers asked for more time to obtain evidence that Ms Gichuhi did not take reasonable steps to renounce her Kenyan citizenship before the July 2 election.

But Justice Jeffrey Nettle said there had been speculation since January that Ms Gichuhi would enter the Senate, giving ALP plenty of opportunity to investigate the matter.

He added that Attorney-General George Brandis had investigated Ms Gichuhi’s eligibility by March when he declared she was eligible.

“For those reasons the court is not (going to) grant more time,” Justice Nettle said.

In any event:

Simon Birmingham, a senior South Australian Liberal minister, …  insisted both the Family First candidate and Kenyan high commission had been “fairly clear” she was not a dual citizen.

Prior to 2010 Kenya did not allow dual citizenship and automatically stripped citizenship from those individuals who applied for foreign citizenship. For (now) Senator  Gichuhi to become a Kenyan citizen she would have to reapply. (Technically she didn’t need to renounce her citizenship – the state renounced her).

Given that the Australian constitution poses no impediment to black Africans being members of parliament, I’m just wondering if the ALP could specify exactly what these “legitimate questions to be answered” might be?

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138 Responses to ALP racist stunt thrown out of court

  1. John64

    Applying Gillardian and Plibersekesque logic, it was also an act of misogyny.

    Racism and misogyny – an ALP burger with the lot.

  2. Combine Dave

    just wondering if the ALP could specify exactly what these “legitimate questions to be answered” might be?

    It’s the labor way.

    Whatever it takes.

  3. Fisky

    This disgraceful act should be hung around the Labor Party’s neck forever. Never, ever let them forget this.

    I bet they sounded her out in private about being another Jacquie Lambie style union zombie, and she turned them down.

  4. stackja

    “legitimate questions to be answered”? No! ALP never bothers!

  5. Fisky

    This was a really dumb move by Labor. It’s going to be pretty easy for the government to keep Senator Gichuhi on side from now on.

  6. Fisky

    Mick Fisk‏ @mickfisk 3s3 seconds ago
    More
    @LucyGichuhi2016 congratulations, and never forget that @AustralianLabor tried to block your election based on nasty innuendo #Auspol

  7. Fisky

    The Liberals need to frame and define Labor on this issue NOW. Get out of the fucking gentlemen’s club and control the narrative.

  8. NewChum

    The ALP – the original Australian ‘birthers’. Even arguing a black citizen is Kenyan!

    The meme potential is endless!

  9. herodotus

    The ALP’s “legitimate question” is “how can we not help”, and they set about being unhelpful in all sorts of areas.

  10. stackja

    ALP/unions created ‘White Australia’.

  11. Fisky

    Wow, the Twitter Left are REALLY quiet about this birther scandal. They are all going to ground.

  12. C.L.

    This disgraceful act should be hung around the Labor Party’s neck forever. Never, ever let them forget this.

    Indeed. But watch. The Liberals will let it peter out.

  13. C.L.

    On the day that saw Bill Shorten try to ban a black woman from sitting in parliament and got excoriated for racism by the highest legal authorities in the land, the SMH leading with …

    Malcolm Turnbull’s visa changes aren’t as tough as they seem.
    ‘It’s a con job’: Turnbull’s visa plan is ‘fast unravelling’

  14. True Aussie

    Ban all foreign born individuals AND dual citizenship holders from holding office.

  15. feelthebern

    Ban all foreign born individuals AND dual citizenship holders from holding office.

    Agree with the latter.
    But why the former?
    Or are you trolling?

  16. Siltstone

    Gichuhi committed the sin of straying off the ALP Reservation

  17. tgs

    Agree, nothing but a disgusting racist stunt.

    What’s the bet that the Coalition will fail to use this effectively as well…

  18. Texas Jack

    What’s the bet that the Coalition will fail to use this effectively as well?

    Odds on…

  19. Marcus Classis

    The ALP view of Africans.

    Link.

    Link kinda SFW but gross, grotesque and does show cannibalism.

  20. Louis

    I haven’t heard a word of this in the MSM

  21. stackja

    tgs
    #2358348, posted on April 19, 2017 at 1:34 pm

    MT does not know politics.

  22. stackja

    Louis
    #2358377, posted on April 19, 2017 at 2:03 pm
    I haven’t heard a word of this in the MSM

    MSM is ALP.

  23. Beachside

    tgs
    #2358348, posted on April 19, 2017 at 1:34 pm

    Agree, nothing but a disgusting racist stunt.

    What’s the bet that the Coalition will fail to use this effectively as well…
    Texas Jack
    #2358351, posted on April 19, 2017 at 1:37 pm

    What’s the bet that the Coalition will fail to use this effectively as well?

    Odds on…

    The Waffler is so far removed from political reality that he wouldn’t know how to get his hands dirty, let alone duke it out with Tits and his Union/Labor Party flunkies, ergo the political front of the fugs, bruvvas and sistas. If Lord Wentworth survives as PM until the next election he, and the Liberal Party, are in for one hell of a pasting, and the elected Union/Labor cabal will finish the job they started under the KRudd and TLS Redfilth Gillard. Turnbull has zero political nous. The Liberal Party should ditch him, now.

  24. Antonin D

    Did Lucy Gichuhi renounce her Kenyan citizenship before July? or not. Technically she didn’t need to. She should have.

  25. jupes

    Indeed. But watch. The Liberals will let it peter out.

    They won’t even let it peter in.

  26. Fisky

    Let’s say the Liberal Party had questioned the bona fides of, say, Senator Nova Peris (on whatever grounds). Do you think we would be seeing the complete silence that we are now?

    I don’t think so!

  27. Diogenes

    Has anybody challenged Sam Dastardly ? Would love to know how he got around the National Service requirement when renouncing his Iranian citizenship

  28. Antonin D

    Nova Peris was born in Darwin. This woman’s performance as a representative of the people was among the worst of the worst. Pitiful. But she was born in Australia.

    And it’s silly to call the ALP ‘racist’ re Lucy Gichuhi. Because it’s exactly what the leftards do.

  29. Antonin D

    Yes, Sam Dastyari should be challenged.

  30. Fisky

    Nova Peris was born in Darwin. This woman’s performance as a representative of the people was among the worst of the worst. Pitiful. But she was born in Australia.

    I’m aware of that. But this is a pretty significant day, basically the first African-born person elected to any significant office, and Labor have tried to get her thrown out on a Birther charge. The optics are terrible for the ALP, or would be if the Liberal Party had a pulse.

  31. Mike of Marion

    If only Abbott had half a brain

  32. sabena

    “Did Lucy Gichuhi renounce her Kenyan citizenship before July? or not. Technically she didn’t need to. She should have.”
    Why?If she didn’t have to,she didn’t have to-end of story.

  33. Peter Bayne

    The ultimate issue was whether Mrs Lucy Gichuhi was, at the time she was nominated, an Australian citizen; see section 163 of the Commonwealth Electoral Act. I can’t see any basis on which it can be argued that it was racist for the ALP to raise this issue in the context of the High Court’s disposition of the Day case. To determine this ultimate issue, other facts – some of them largely opinions about the existence of facts – would need to be proved. From an earlier transcript of 11 April, and today’s reports, the High Court refused to consider the issue (and mooted it) by refusing Labor time to gather some factual material, on the basis, it seems, that they had not moved with sufficient alacrity. That’s all.

    Of course, we are now after the fact, but it is worth noting that it is wrong – and in some situations would be a contempt of court – to seek to dissuade a party from seeking curial redress.

    I do not see any basis for Antonin D to assert that the lady should have renounced her citizenship. She may have been advised that it was not necessary, and she may have had concerns about repercussions for her relatives (I think they are Kikuyu) in central Kenya; see the history of the Mau Mau.

  34. Fisky

    The ultimate issue was whether Mrs Lucy Gichuhi was, at the time she was nominated, an Australian citizen; see section 163 of the Commonwealth Electoral Act.

    And the answer is, yes she was, without question and this was obvious to everyone days ago. The Labor Party didn’t believe her because they don’t like her politics, and that is why they are saddled with the appalling optics of trying to unseat the first ever African-Australian woman in the Senate.

  35. Fisky

    Again, for the benefit of any racists who want to defend the ALP –

    But Justice Jeffrey Nettle said there had been speculation since January that Ms Gichuhi would enter the Senate, giving ALP plenty of opportunity to investigate the matter.

    He added that Attorney-General George Brandis had investigated Ms Gichuhi’s eligibility by March when he declared she was eligible.

    So George Brandis had already determined that Ms Gichuhi was an Australian citizen. But that wasn’t good enough for Labor. They believed both Brandis and Ms Gichuhi were lying.

  36. Peter Bayne

    According to the 11 April High Court transcript, the opinion of an expert retained by Brandis was based on specified assumptions of certain facts. If any of these assumptions turned out to be false, then the opinion could be challenged. Labor wanted time to gather evidence to do just this. Nettle J refused more time.

    I hope this makes it clear for you Fisky.

  37. Peter Bayne

    As an aside, it will be interesting to see if Nettle referred to the lady as ‘Ms’ . I think (from a comment made by an ABC dimwit) that she prefers ‘Mrs’.

  38. Stan

    A disgusting racist and sexist stunt by the ALP.

  39. Baldrick

    Not surprisingly, Septimus, aka GrigoryM, aka Libby Zee was, as usual, on the wrong side of the argument:

    Libby Zee
    #2358158, posted on April 19, 2017 at 10:28 am
    Not surprising. The questions about Gichuhis Kenyan citizenship need to be addressed in a proper forum such as the High Court. There are also questions about how the special count was done and whether Family First above the line votes were eligible to be counted following Days disqualification.

  40. notafan

    and she may have had concerns about repercussions for her relatives (I think they are Kikuyu) in central Kenya;

    Really? Is this like, #fakenews?

    the High Court refused to consider the issue (and mooted it) by refusing Labor time to gather some factual material, on the basis, it seems, that they had not moved with sufficient alacrity.

    and when exactly did the Bob Day story break?

    October 2016 perhaps?

    Sufficient alacrity indeed. Six months of sufficient alacrity.

    Pathetic
    .

  41. herodotus

    Is Antonin d another gargoolery sock puppet, or just another lame commenter?

  42. Fisky

    According to the 11 April High Court transcript, the opinion of an expert retained by Brandis was based on specified assumptions of certain facts. If any of these assumptions turned out to be false, then the opinion could be challenged. Labor wanted time to gather evidence to do just this. Nettle J refused more time.

    But Peter, this is just a fancy way of saying that the legal advice obtained by Brandis was bogus, and also that Gichuhi is a liar. The ALP challenged this on the basis of nothing, except presumably they didn’t want a potentially hostile conservative Senator taking her seat.

    Really dumb.

  43. Fisky

    It was such a stupid move by Labor, I wonder why they didn’t put the Greens up to it.

  44. kae

    Oh wait. Let me guess …

    The woman is not of the left. That’d be the prejudice.

  45. Peter Bayne

    Notafan – calm down. I did not question Nettle J’s ruling that Labor had been too tardy. So far as concerns the Mau Mau comment, I was speculating, but not without foundation. I know from personal experience that Kenyan men – while pleased to have a white wife – do not like their women marrying whites. But I withdraw that comment.

    Fisky – I don’t know just which of the factual assumptions made by Brandis’ expert Labor wanted to challenge. Reading the 11 April transcript, nor did the High Court on that day, and I suspect that annoyed the judge. We will have to wait until today’s transcript becomes available. (You can access it via austlii – go to ‘Commonwealth’ and then to the ‘other Commonwealth resources’; High Court Transcripts are near the top of that list.)

  46. Peter Bayne

    Just as well that I with drew my Mau Mau comment. Lucy Gichuhi’s husband is a black Kenyan!

  47. Sinclair Davidson

    Nice try Peter – but an individual who has been an Australian citizen since the early noughties and the foreign government states that she is not their citizen is eligible to be in the Parliament if elected. Those nasty little racists at the ALP thought they could pull a stunt but quickly got found out.

    Pity the Liberals are too soft to capitalise.

  48. Rebel with cause

    Legal scholars can debate the semantics, but I agree with Fisky – bad optics to challenge her eligibility. Parliament is full of politicians born overseas anyway, have they all tabled formal proof they have renounced their citizenships?

  49. EB

    Seems the duopoly is working given they didn’t say boo about Abetz and not much about Abbott.

  50. Diogenes

    Peter,
    Thd question had nothing to do with the electoral act , but rather section 44 1) of the constitution. A strict reading would have it that any dual citizen can’t enter parliament, regardless if they tried to ‘renounce’ their other citizenship , but the other country does not recognise this, or indeed they merely started the process (hence references to Sam Dastardly).

  51. notafan

    Just as well that I with drew my Mau Mau comment. Lucy Gichuhi’s husband is a black Kenyan!

    Oh please, your comment was utter rubbish and as a consequence nothing you now say is credible.

  52. Mark A

    kae
    #2358461, posted on April 19, 2017 at 3:23 pm

    Hi kae, long time since we heard from you. Are you well?
    Did the floods reach your property?

    Cheers.

  53. Antonin D

    I believe it’s silly to claim that this is a case of racism. This might be a stunt, but it’s not a racist act.
    It’s “lame” to have a different opinion on this?
    “Lame” is crying, ‘Oh Oh awful nasty racists’.
    Of course Brandis may have received top-drawer legal advice. (I admit I detest him. Nevertheless…)

    Maybe I’m the ‘racist’? and don’t want foreign-born people in the Parliament. That’s not lame, that’s bad.

    When did Tony Abbott renounce his British citizenship? or maybe he’s already said when the deed was done.
    I don’t know.

    Regardless, we’ll see how special Lucy Gichuhi is. She could well be better than the rest of the women on both sides. It wouldn’t be hard.

  54. Libby Zee

    I didn’t think Labors attempted challenge was racist. Lucy Gichuhi has been somewhat ambivalent in her statements about whether or not her Kenyan citizenship is still in place or was in place at the time of last years election. Seeking leave to have it tested in the High Court is the appropriate course of action in my view. Who knows why they were so late making the challenge? Maybe they were expecting to win the special recount. In any event, I think that they should have challenged on more thane one ground. With Days disqualification, Family First had only one candidate, so if the special recount included above the line votes then Labor should have challenged the count.

  55. Shy Ted

    Just another way to put money in the pockets of Labor lawyers.

  56. notafan

    When did Tony Abbott renounce his British citizenship? or maybe he’s already said when the deed was done.
    I don’t know.

    Maybe the same time Julia Gillard renounced her British citizenship.

    I don’t know.

  57. Antonin D

    How could I forget Julia Gillard. Please include her!
    Ms I-Did-Nothing-Wrong.

  58. Rebel with cause

    Members of Parliament by place of birth.

    Not that I care, but can’t find any info on Mathias Cormann renouncing his Belgian citizenship. He’s even be quoted as saying ‘I still feel quite Belgian’.

  59. Antonin D

    ‘I still feel quite Belgian’ . . lol . . that’s really offensive

  60. Squirrel

    I believe I heard Senator Gichuhi saying some inconvenient (to big government progressives) things about welfare creating victims – not at all what the ALP would have expected or wanted to hear from someone they would quite likely have seen in their instinctive identity politics frame.

  61. Malcontent and his Ludicrous Party have just been handed the finest opportunity for giving Labor a major burn, but given his past performances, he’ll be very reluctant to hurt his mates on the Left.

  62. Roger

    The issue in question was surely her nationality, not her race, even though it was inept of the ALP to pursue the matter at this late stage. A white Kenyan born Australian citizen could reasonably be asked the same question re dual citizenship and other cases come to mind, including Dastyari.

  63. Zyconoclast

    MT does not know politics.

    He is PM.
    He knows enough.

  64. Zyconoclast

    If only Abbott had half a brain

    If he only had a brain.

  65. nerblnob

    I believe it’s silly to claim that this is a case of racism

    Like 99% of such claims.

    But the media run with them when it suits their narrative.

  66. Zyconoclast

    ‘I still feel quite Belgian’ . . lol . . that’s really offensive

    No it’s not

  67. Antonin D

    Sorry, I forgot Stella

  68. Zyconoclast

    While a lot of Cats are screaming ‘racist ALP’
    They are scum and just trying it on. It is not a race thing. Just as Shanghai Sam.

    Wait till she goes the full inclusive SJW.

  69. Antonin D

    . . . and there’s Georges Simenon

  70. rafiki

    Diogenes – yes, I accept that the issue arises under s 44 of the Constitution, rather than section 163 of the Commonwealth Electoral Act. The transcript of 11 April did not specify the legal basis and I took it that it was the Act.

    This does not however alter the thrust of my comment, which is that raising an issue of this kind cannot be labelled racist. Another error is the assumption that Brandis’ opinion somehow settled the issue so Labor must have some motive other than to attempt to unseat Lucy Gichuhi. That is the stuff of politics, and this kinds of challenges is not new (see the Webster case).

    Notafan – you are still overexcited.

  71. Michel Lasouris

    Aw, not another Kenyan tried this The Americans tried this and it did not turn out well……..

  72. Iain Russell

    Doom Lord and others are right. The Libs, as pathetic as they are, need to hammer the Filth over this. Waaaacist and Miss Oxygenist

  73. Roger

    This is more ineptitude than racism. The issue was her nationality, not her race. But they left it too late.

    The same question could reasonably have been asked of a white Kenyan born Australian citizen elected to parliament.

    Or Sam Dastyari.

  74. Notafan

    Why am I overexcited?

    The Kikuyu comment was nonsensical.

    The Tony Abbott one is a constant meme on Facebook along with accompanying absurdly fake documenation.

    I’m sick of the left controlling the narrative.

  75. Hydra

    If an African is not receiving handouts the ALP consider this an inequity and attempt to rectify it so they are on handouts.

  76. Antonin D

    I hate the left controlling the narrative.
    But I didn’t know of a Tony Abbott constant meme with fake documentation on Facebook.

    Reason being, I wouldn’t go near Facebook. Not saying people who do are shallow, or anything
    But I imagine there’s a fair bit of self-important “oh nasty racist person” stuff on Facebook.
    Not for me. I believe in snobbery.

  77. stackja

    Notafan – the Left control of the narrative continues while allowed. Only the gullible accept the Left version. Few Cats are gullible. Only hope is people will soon not accept the fakes.

  78. stackja

    ALP/unions invented racism to win votes. First in 1901, then Gough in 1972.

  79. Ms Smith

    “What qualifications would a Kenyan know about Australia and politics?” may be their thinking! Frankly, I am excited that Lucy will be part of the Australian political landscape! Makes you wonder whether Labor/Greens will make her welcome in the Senate!!

  80. rafiki

    Goodness me Notafan. I am not a leftist trying to control any narrative. I did make a mistake – on a relatively minor point – without checking, and withdrew the comment. I will not re-open the matter. I will just make 3 points (1) This is not a case of the ALP acting on racists grounds. They were (or hoped to be) trying to unseat Lucy and thereby get one of their own up. (2) Their High Court strategy failed because they did not get their act together quickly enough. (3) Labor’s case did not, on the face of it, seem hopeless. Diogenes (above) made an interesting point about some uncertainty about what s 44 of the Constitution means. It looks as if these issues will not now be explored.

  81. Yohan

    I’ll tell you what the real racist stunt was, Bob Day symbolically choosing a Kenyan running mate so he would not seem like a racist, and now that running mate takes his seat in the Senate.

    What are the chances this women will be a consistent right-libertarian vote like Bob Day was? Zero, that’s what. Ultimately the joke is on Family First supporters.

  82. a reader

    I haven’t met the new Senator but from what I can tell she’s in the Day mould. The bloke who effectively started the party isn’t going to put a SJW as his running mate. Day is not Palmer/Hanson

  83. Libby Zee

    Day is not Palmer/Hanson

    Very droll.

  84. PB

    “Ban all foreign born individuals AND dual citizenship holders from holding office.

    Especially the “right-of-return” club who seem a bit over-represented for their population numbers.

  85. .

    Yohan
    #2358658, posted on April 19, 2017 at 7:26 pm
    I’ll tell you what the real racist stunt was, Bob Day symbolically choosing a Kenyan running mate so he would not seem like a racist, and now that running mate takes his seat in the Senate.

    No.

    She was probably just as churchy.

  86. Up The Workers!

    Racism and the A.L.P. go together like Bull Shittens’ hand, and a Unionists’ pocket.

    What else would you expect from the Party which introduced the “White Australia Policy” into Australia, and which was Federally led by Arthur Augustus (“Two Wongs don’t make a White”) Calwell.

    Even Gough Whitlam once said “I’m not having these f**king Vietnamese Balts coming into the country…”

  87. Wow, a black, immigrant, woman – and the ALP tried to stop her taking up her rightful seat in the Senate. That’s three strikes against them from the leftie playbook rules, yet all we hear is the sound of …….. yes, crickets.

  88. Andrew

    Did Lucy Gichuhi renounce her Kenyan citizenship before July? or not. Technically she didn’t need to. She should have.

    WTF??

  89. Notafan

    So Rafiki you are also Peter Bayne?

    That explains you apparently bizarre comment.

    Making stuff up is a ‘mistake ‘?

    Very leftie.

  90. Antonin D

    WTF and a pair of question marks don’t offer much of an argument.
    When “technicality” gets trotted out, as it did, I think lawyers. Perhaps you’re one, Andrew.

    And it’s strange to see Brandis is considered a good bloke. In this particular case, someone is upset that Brandis is branded .. a liar. Politicians and the truth
    Bob Day seemed like a very good man. Unusual for a politician.

  91. Peter Bayne

    Notafan – as, on my own research, the facts became clear to me, my comment stood as bizarre, and I withdrew it immediately. I don’t think it affects the main points I made, and I think you overreacted.

    Yes, I was rafiki, but now post under my real name. I just can’t follow why you would think my posts leftist, but that’s for you to ponder. I decided to use my name after reading of the reaction of a Canberran concert organiser to being banned from an ANU bar concert on the basis that he had not arranged for female and ‘non-binary’ performers. Not his exact words but close to: ‘Why do I have to put up with this shit. And what does non-binary mean?’ If he could take a public stand, then why couldn’t I?

  92. Gerry

    You can bet your life that they didn’t have the foggiest what the “legitimate questions” were ….the left just like saying those words because its makes them seem important and considered people …..if pushed they would make up something about a connection to the Koch brothers or the Adani mine …..

  93. JB5

    OT and at the same time, not: dual citizenship is bullshit. Either you’re loyal to a country or you’re not. That doesn’t mean you have to go and fight in imperialistic wars for your new country, but you should support the country you chose to come to – not just take the best bits from as many places as you can. Rights and responsibilities.

  94. sabena

    Peter Bayne #2358466
    “According to the 11 April High Court transcript, the opinion of an expert retained by Brandis was based on specified assumptions of certain facts. If any of these assumptions turned out to be false, then the opinion could be challenged. Labor wanted time to gather evidence to do just this. Nettle J refused more time.”
    What you don’t refer to is the fact that the assumptions were based on statements made by Mrs Gichuhi to her lawyers and provided to the Australian Government Solicitor.The likelihood of her statements being false is therefore slim.The counsel for the Attorney General made it clear to Gordon J that the facts on which the assumptions were made could be proved.He would not have done that if there were doubt about the facts.
    Labor were clutching at straws.

  95. Sabena – whether an assertion of fact can be ‘proved’ to be true is not so straightforward, in particular where a relatively high level of inference is involved. In any event, no party to litigation is obliged – or can be expected – to accept the opponent’s assertions of fact as true. That’s just how our common law system works. Some – in particular some feminists – would wish it not to be true, so that an allegation of rape must be true because the women don’t lie. Worse than that, if the woman perceives herself to have been raped, that’s enough proof. I got into trouble at the ANU for challenging these claims in my lectures. I cite these examples to illustrate where your kind of thinking can lead.

    Let’s just remember too what this post is about, which is whether Labor’s challenge to Mrs Gichuhi’s eligibility was ‘racist’. Are you supporting the claim that is was? If so, on what basis?

  96. Sorry, my discarded nickname (rafiki) slipped through.

  97. sabena

    Peter, senior counsel would have been misleading the Court if he said that facts could be proved and then they could not be proved.Further the ALP has and had no evidence that they were untrue and no basis for suggesting that they might be untrue-that is why an adjournment was refused.

  98. Sabena – perhaps you have seen yesterday’s transcript, but from what was said on April 11 and what I read in the media, counsel did not say this but only that her client needed more time to respond to Brandis’ submission (which they received after March 27 according to what was said on April 11) and, in particular, to challenge the assumptions of fact made by Brandis’ expert. (The relevant expertise would have been knowledge of Kenyan law, since the content of foreign law is a question of fact). Nettle J rejected the application for an adjournment on the basis that the client (and their lawyers of course) had had enough time already.

  99. sabena

    Peter I read the transcript of the hearing of April 11 which is here:
    http://www.austlii.edu.au/au/cases/cth/HCATrans/2017/85.html
    The transcript from yesterday is not yet available.

  100. Fisky

    (The relevant expertise would have been knowledge of Kenyan law, since the content of foreign law is a question of fact).

    But the government was informed by the Kenyan high commission that Gichuhi was not a citizen. So in order for the ALP’s birther fantasy to be true, the following people would have to be telling outright lies:
    -George Brandis and/or his counsel
    -Lucy Gichuhi
    -the Kenyan government

    It is really disturbing that the ALP’s thought processes work like this. Because if there’s one thing you don’t want in an alternative government, it’s paranoid racists.

  101. Andrew

    Let’s just remember too what this post is about, which is whether Labor’s challenge to Mrs Gichuhi’s eligibility was ‘racist’. Are you supporting the claim that is was? If so, on what basis?

    On the basis that people such as T666 are UNIVERSALLY called racist for birthering Obama, despite the fact that these birthers specifically cited The Kenyan’s OWN bio and that The Kenyan took advantage of foreign student concessions at uni.

    If the Left wants to throw that one around, they have to cop it when they birther a black wymminz who has made NO contradictory statements about her nationality, where there is NO dispute over the facts of Kenyan law (you don’t have to take the opponent’s word for things, but you DO need to have #AlternativeFacts to contradict them).

  102. Fisky

    Well said Andrew. You won’t get through to them, but it is important to place their interference-running for racism on the record.

  103. Fisky

    Anyone know if the ALP challenged Andrew Murray’s bona fides (former Rhody/Saffa) when he was elected back in the 90’s? Didn’t think so.

  104. Libby Zee

    Anyone know if the ALP challenged Andrew Murray’s bona fides (former Rhody/Saffa) when he was elected back in the 90’s?

    Would it have been racist to do so?

    Andrew Murray

    Commissioner Murray was born in England in 1947. He was placed in a children’s home at the age of two, and at the age of four was sent to Southern Rhodesia (now Zimbabwe), as a child migrant to Fairbridge.
    Raised and schooled in Rhodesia, he went to university in South Africa and England. He migrated to Australia in 1989 with his family. They were accepted as Australian citizens in 1994.

    He was an Australian Democrats member of the Australian Senate from 1996 to 2008, representing Western Australia.

    Fisky, you seem a little uptight about it all. Are you OK? Are you a Family First supporter/party member?

  105. Fisky

    Wow, thanks for that Googlery, but it didn’t really answer the question did it?

    Did the Labor Party ever question the bona fides of Andrew Murray, i.e. did they run him through the High Court?

  106. Sinclair Davidson

    He was an Australian Democrats member of the Australian Senate from 1996 to 2008, representing Western Australia.

    Indeed he was – yet the question remains did the ALP challenge his election to the Senate on the basis of his possible dual-citizenship?

  107. Libby Zee

    No need to thank Grigory, Fisky. He’s not here (except in your head).

  108. Oh come on

    Grigory used to deny running sockpuppets until he was blue in the face. Grigory Zee, you’re not fooling anyone.

  109. Libby Zee

    yet the question remains did the ALP challenge his election to the Senate on the basis of his possible dual-citizenship

    Maybe Fisky could find the answer. It seems to be of particular concern to him.

  110. Libby Zee

    If Grigory ever looks in here, Oh come on, he must laugh whenever he sees a comment like yours.

  111. Fisky

    Grigory Z, it is really dumb to tell a professional troll-smoker-outer that you are not in fact Grigory Z. OK?

  112. Fisky

    Hi Sinclair, just wondering if your ban on Grigory is still standing? “Libby Z” sounds very familiar!

  113. Sinclair Davidson

    “Libby Z” sounds very familiar!

    Commies are all the same.

  114. Fisky

    Commies are all the same.

    Especially the Ukrainian ones!

  115. Libby Zee

    You’re lightening up a little, Fisky. That’s good.

  116. Fisky and Andrew – questions about whether Mrs Gichuhi was a Kenyan citizen at the time of her nomination, or whether having attained Australian citizenship she owed some allegiance to foreign power (see section 44 of the Constitution and Diogenes blog a long way upthread), are mixed questions of fact and law. A party to litigation is not bound to accept someone else’s opinion about the existence of the ultimate fact (except of course when a court makes a finding on the issue). I guess the Labor view would not be that Brandis or someone at the embassy was lying, but simply that their view of he conclusion to be drawn from the facts (and Labor might have a different view about what are the underlying facts) was mistaken.

    There is nothing ‘leftist’ about this position; its just bog-standard law.

    Sabena: such a pretty name with a fascinating etymology and historical origin. I hope you find yesterday’s transcript enlightening. If you are not a lawyer, it takes a bit of work.

  117. Sinclair Davidson

    Peter – I’m calling “bullshit”. Whether or not a country has a law that states that citizenship is automatically rescinded when applying for foreign citizenship is not a matter of opinion. Ten seconds of googling would have clarified this matter for the ALP.

    The party that introduced the White Australia Policy came very unstuck when they thought they could have a white Parliament policy. Shame on them.

  118. Fisky

    But Peter, the Kenyan High Commission had a pretty definitive opinion on the status of the senator’s citizenship. Does the Labor Party have a problem with accepting the testimony of black people at face value?

  119. OK lads, I think our positions are clearly staked out.

    Sabena – yesterday’s transcript is now online at austlii. I will read it in the train (from Canberra to Mittagong) and get back to you. At first glance, it looks interesting. (Fisky and Sinclair – you may have reactions too.)

  120. Dr Fred Lenin

    The alp have always been racist they hated the early Chinese migrants , scoffed and abused the “balts and reffos ” .they have been retarding the aboriginals from integrating for political reasons ,they ] have invented
    a new racial group ,the blond blue eyed “indigenius” welfare bludgers . Now they are foolishly allied to the islamofascists In the hope they will help u.n.communus to one world unelected government and then f quietly go back to goat loving ,leaving power to those who really deserve it ,the communists . Yeah right tovasishi thats gonna happen !

  121. Sinclair Davidson

    Now Peter I know that you like to be fair and even handed etc. etc. etc. But having read the transcript it seems to me that you’re on a hiding to nothing.

    The ALP lawyer had some story about a single Kenyan judge questioning a section of Kenyan law and Australian experts on Kenyan law disagreeing about what that meant. The Solicitor-General pointed out that the judge’s statements were obiter, and then quoted from the Kenyan constitution as to what a Kenyan citizen was and how citizenship was lost. Are we being invited to believe that a single Kenyan judge could strike down a section of the Kenyan constitution? That is what the ALP wanted to argue in court.

    At best I can work out the other question seemed to be whether under Australian law she was a dual citizen even if under Kenyan law she wasn’t a dual citizen.

    Times like this I think lawyers and their clients should be jointly and severally liable for costs.

  122. Andrew

    Peter seems to be taking the position that it’s OK for the ALP not to take the word of either Brandis666, or his legal expert, and that the entire premise of litigation is to DISPUTE the opponent’s position.

    And that’s exactly right. There must BE an issue in dispute. This issue is not. WhiteAustraliaKaty turned up in our highest court without any evidence whatsoever. Not a single person on the planet appears to believe the black sheila is ineligible. Nobody suggests the purported Kenyan law that revoked her citizenship was in fact forged or misquoted. Their entire case consisted of “I don’t like what Brandis666 is saying, and I don’t want this wymminz in Parliament.”

    They literally went to the HCA with only the Vibe – not even arguing Mabo or the Constitution. You can’t dispute the Facts without #AlternativeFacts. Nor can you ask the HCA to stop her taking her place on the basis that given unlimited time you might be able to find #AltetnativeFacts.

    No lawyer should ever have advised their client to litigate without a single piece of evidence. This idiotic woman wants to be the AG.

  123. Fisky

    Peter Bayne sounds a little bit like that guy who sued Andrew Bolt and lost his house.

  124. Fisky

    Or another Peter lawyer who used to comment at LP.

  125. Sinclair Davidson

    Fisky – you’re being unfair to Peter (who is a long time threadster here at the Cat).

  126. Libby Zee

    Interesting transcript. Nothing racist in it. Nettle J was especially keen to knock back the request for extra time. I thought allowing a further week would have been fair in the circumstances outlined. Gordon J was just along for the ride.

  127. rafiki

    First, to clear up who was challenging Lucy’s eligibility, it was one Anne McEwen. I guess that was the 2005 to 2016 ALP Senator for SA., who stood a chance of getting up again if Lucy was disqualified. Can we assume that the federal ALP backed her? Probably.

    There were two legal issues raised by McEwan. First, did Lucy retain her Kenyan citizenship post-July 2001? This required the court to make a finding of fact as to the effect of Kenyan law. Brandis obtained an opinion from Professor Yash Ghai. I know Yash – having worked in a junior capacity with him in the old University of East Africa in Dar es Salaam in 1969, and in other ways over some 15 years or so subsequently. He has written about the Kenyan Constitution and is a man of skill and integrity. But McEwan was entitled to – and it would have been negligent of her lawyers not to do so – to obtain another expert opinion. In the end, the High Court would have had to make up its own mind, guided by the experts. What Donaghue SC said about the Kenyan case relied upon by McEwan’s expert is of course coming from a lawyer out to achieve a particular result for a client opposed to McEwan. It can’t be accepted as authoritative.

    Sinclair, you cannot assert that the issue was so clearly against McEwan that it was just not arguable, and then take the further step of arguing that McEwan was motivated by racism.

    Perhaps you have modified your position on this score? That somehow McEwan, prompted by Labor, saw some advantage in delaying Lucy’s taking office? But even this is weak. McEwan wanted the position back, and is not that the dominant motive? Note too – as Kirk tried to get across to judges who were clearly unsympathetic from the outset – that until very recently Lucy could not be challenged, and there was little delaying doing so. All they wanted from the court was another week to firm up their evidence and the matter could be determined.

    The second issue, assuming McEwan won on the first, was whether Lucy took reasonable steps to renounce that citizenship? On this point, Kirk SC (for McEwan) indicated that they pretty much accepted Lucy’s affidavit, (so she was not called a liar, but rather a truth-teller), but said that the debate would be about whether to characterise what she did as taking ‘reasonable steps’. Nothing unreasonable about that.

    In the end, Nettle and Gordon JJ refused to allow another week because they took the view that McEwan had had from January time to get the evidence together. For what it’s worth, I think they were on solid ground here. But how they (and Nettle J in particular) went about getting to the end point was not a good example of judicial behaviour.

    At one point, Nettle J got stuck into McEwan’s other lawyers for having not done what was required. This enabled Kirk SC to say something that many barristers would liked to have said (and often had no chance of doing so because they did get the judicial admonition until reasons were delivered). “Your Honour, I, with great respect, must respectfully seek to draw to attention facts which are, in our respectful submission, not consistent with what your Honour has just summarised”. Three gestures of respect in one sentence? Is this a record? Later on, there was another one. “Well, with respect. that is not right either”. Just one ‘respect’ this time, and one feels that Kirk was a bit fed up with how Nettle was going about his (Nettle’s) job.

    Finally – because it tells us something about how judges decide cases – there is the justification offered for refusing the week-long adjournment. The Court allowed that their order might cause some prejudice to McEwan, but “[o]n the other hand, the filling of the vacancy .. is a matter of high public importance and it is necessary in the public interest that the issue be resolved and the vacant … be filled so as so as to create certainty as soon as is reasonably practicable”.

    Ah, those old judicial libertines of ‘the public interest’ and ‘reasonableness’! These are not legal standards requiring the possession of arcane knowledge, but matters upon which any intelligent person can have as good a view as a judge. And some in our community might think that ensuring that persons committed to Australia are elected is a high public interest.

    And as an aside, the transcript has Nettle J referring to ‘Ms’ Lucy I wonder whether any body in the court sought out her view as to how she was to be addressed.

  128. Libby Zee

    Excellent, rafiki. I would add that both Justices are Coalition appointees. Kirk preferred to have the matter heard by the Full Bench, but Nettle J was having none of that. Biased? Go figure.

  129. Peter Bayne

    Sorry again for the rafiki. I have now adjusted all the computers I use.

    Libby Zee, thankyou, but I can’t go along with your addition. You do however open up for discussion (at another time) the role of political considerations in judicial reasoning. Some factor other than purely legal reasoning must operate in many cases decided by the courts, and where ‘high public interest’ is the touchstone, and the outcome of political import, political standpoint is an obvious candidate for this other factor. But unless we get some signal from the reasoning used, we can only speculate, not assert.

  130. Sinclair Davidson

    Labor’s national president Mark Butler, a South Australian MP, said the party made a decision late last night to test Ms Gichuhi’s candidacy to become a senator based on legal advice and unanswered questions.

    I can’t comment on Ms McEwan or her motives. As far as can see she is the person with standing to bring an action. As the media quote makes clear she is not the decision maker or mastermind here. But I am happy to label this as being a racist stunt every day of the week. The ALP got another opinion as to the meaning of the Kenyan constitution? Really? Unsurprisingly the court threw out the case.

  131. Antonin D

    Thank you to those who went to the trouble of delving further. There was no racism.
    After all, who would dare

  132. sabena

    Peter,the question of a persons’s eligibility may in other cases be a mixed question of fact and law,but not in this case.Jeremy Sexton(counsel for Anne McEwen the ALP candidate) said to the Court “In terms of resolving it, there are two broad issues, as I indicated. One is strictly an issue of fact, namely, Kenyan law, and whether or not Ms Gichuhi continued to hold Kenyan citizenship after July 2001. The second issue is the “reasonable steps” question which is a matter of Australian law.”
    Incidentally where there is a an issue of foreign law,the Court will receive evidence of what the law is and if interpretations are in dispute,the Court will decide for itself the application of that foreign law .Where that involves a matter of construction,that means it is likely that the ordinary meaning of the words will apply.In this case the application of the ordinary meaning of s97(3) of the Kenyan Constitution would see the question answered in Mrs Gichuhi’s favour.

  133. Libby Zee

    For those interested, the transcript from 19 April 2016 is here:

    http://www.austlii.edu.au/au/cases/cth/HCATrans/2017/86.html

  134. Peter Bayne

    Sabena – you are talking like a lawyer, so I assume you are. As you no doubt know, whether a question is one of fact, or of law, or mixed, is not easily determinable. I don’t say this to diminish what you say, but merely that we may disagree (and there is no way to settle the matter).
    I made the point about foreign law in earlier posts, so we agree here.
    Going by yesterday’s transcript, my guess would also be that the at least one of the questions, and probably the first, would be answered in Mrs Gichuhi’s favour.
    We will probably not ever get a High Court ruling on the point (although that is not certain).
    If we don’t, then it will be open for mischievous people to claim that there is doubt about Mrs Gichuhi’s eligibility, or for media to ask questions about the matter, for it is very clear that Nettle and Gordon JJ did not (properly of course) offer an obiter opinion on this issue. Mrs Gichuhi’s legal advisers must have sought her advice about whether they should oppose McEwan’s application. But I think the outcome for her is not as beneficial as one might think.

    The burden of most of what I have been saying on this thread is that McEwan’s challenge cannot be called racist, but I won’t press you for an opinion.

  135. .

    Peter this is just sad. The ALP are power hungry control freaks that don’t care about diversity. They care about power. Nothing more, nothing less.

    Your argument mangling well known and easily understandable legal concepts is desperate.

    There doesn’t need a ruling beyond a refusal to give leave, because the High Court said their assertion was utterly pathetic.

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