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Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

West Bengal. Senator Roberts was born in Disergarh, West Bengal, India in May 1955 and his name was recorded in the High Commissioner's Record of Citizens of the United Kingdom and Colonies. An entry was made around June 1955 on his mother's passport by the Australian Trade Commissioner in Calcutta to allow Senator Roberts, then a child, to travel with his mother. The entry stated that Senator Roberts "is the child of an Australian citizen but has not acquired Australian citizenship". The Roberts family moved to Australia around 1962. In 1974, Senator Roberts, then a student at the University of Queensland, applied to become an Australian citizen and was naturalised as such on 17 May 1974.

101 Evidence of British citizenship law was given by Mr Laurie Fransman QC, who was called as a witness by the Attorney-General, and by Mr Adrian Berry of Counsel, who was called by Senator Roberts. Each of these barristers practises in the United Kingdom specialising in citizenship law. On the basis of their evidence, Keane J found that Senator Roberts was a citizen of the United Kingdom by descent at the time of his nomination for election as a senator. By virtue of his father's nationality, Senator Roberts was born a "citizen of the United Kingdom and Colonies", the principal form of British nationality in the period 1 January 1949 to 31 December 1982. On 1 January 1983, the British Nationality Act 1981 (UK) ("the BNA 1981") came into force and Senator Roberts became a British citizen by descent.

102 Keane J found that Senator Roberts knew that he did not become an Australian citizen until May 1974 and at the date of his nomination for the Senate Senator Roberts knew that there was at least a real and substantial prospect that prior to May 1974 he had been and that he remained thereafter a citizen of the United Kingdom. Senator Roberts ceased to be a citizen of the United Kingdom on 5 December 2016, on the registration of his declaration of renunciation of citizenship.

103 Senator Roberts was incapable of being chosen or sitting as a senator under s 44(i) of the Constitution, and so there is a vacancy in the representation of Queensland in the Senate for the place for which Senator Roberts was returned.