12/10/2017 2:29 PM AEDT | Updated 12/10/2017 4:54 PM AEDT

It Is 'Un-Australian'! The Testing High Court Testimony Of Malcolm Roberts

What are we getting out of this, the Chief Justice asked.

Alex Ellinghausen/Fairfax
One Nation Senator Malcolm Roberts arrives at the High Court.

CANBERRA -- One Nation senator Malcolm Roberts has argued the anti-immigration dual citizenship case against him and his possible breach of the Constitution is "un-Australian" as he tested the patience of the High Court in stating he was "entitled to put out of his mind that he was a British citizen".

In what does not bode well for the senator in this citizen by descent case, the Justices have been repeatedly questioning relevance, "where this argument is taking us?", "what are we getting out of this?" and "can you bring us up to date?"

Now remember, the High Court has previously found, under cross examination, Roberts -- who was born in India in 1955 to a Welsh father and an Australian mother -- was a dual-British citizen when he nominated and was elected in 2016.

This is already a technical breach of Section 44 of the Constitution, but the full bench of the High Court is still to rule on the case of Roberts as well as the six other federal politicians; Barnaby Joyce, Matt Canavan, Fiona Nash, Nick Xenophon, Larissa Waters and Scott Ludlam.

Roberts is attending the High Court on Thursday and his legal representative, Robert Newlinds QC, quickly argued that the previous cross-examination of the senator had "misfired" and there has been "nonsense arguments" and then, essentially described the potential for kicking him out of parliament for being an Australian immigrant as "un-Australian".

The QC for the anti-immigration party argued to the High Court's full bench, there should not be a distinction between Australian born citizens and Australian immigrants or foreign born Australians, that being born overseas was almost irrelevant.

Anything else for Newlinds was "a fundamentally un-Australian notion".

What was he? Well it was put that it does not matter that he was born in India, in fact, it was a "dangerous distraction".

"We are here because he father is welsh, No one is suggesting he was an India".

Justice Virginia Bell asked, "is it your submission that Senator Roberts is a natural born Australian? Newlinds flung his hands in the air and responded, "he is a natural born Indian, whatever that means".

The Commonwealth argues politicians born overseas should have been aware there was a risk they were dual citizens.

But Roberts lawyer then claimed that the UK was not a foreign power, or at least has only been one since 1986, but this change in view had happened without "flag-waving and clarion calls." His assertion was that Roberts was a British subject, but also Australian.

The key here, for Roberts and his team, was that Roberts father came to Australia in 1962 as a British citizen and became an Australian solely by "setting up a domicile".

That, it is argued how things were done back in the day for British subjects.

The other back in the day argument was that body politic - or general Australian population - in the 1970s did not view Britain a "foreign power", so Roberts was "entitled to put of his mind that he was a British citizen."

The senator, Newlinds said, always thought he was an Australian and in 1994 his dad came home with a citizenship certificate and he "did not think it was a big deal" and he did not get any extra rights or duties.

The argument exasperated the justices who urged a hurry on during the third and final day of hearings into the dual citizenship statuses.

How does this take us to 2016, when Roberts nominated for parliament while knowing he was a dual citizen?

Justice Bell wanted to know.

"Putting to inside what people may or may not have thought, we are to determine this on the facts that have been found. It is just unclear to me where this argument is taking us?" she asked.

Roberts put that It would be different Roberts had stood for nomination in 1987, but, Justice Bell, said in exasperation, "we are dealing with a nomination in 2016?"

It was tendered he knew prior to 1974 that he was a British citizen, but Newlinds said Roberts did not know in 2016 he was British citizen, but he had the "wit to think he might be".

"His state of mind was embedded and set in 1974 and it doesn't change," nNewlinds told the court.

It is then, he argued, that Roberts took "reasonable steps" to renounce citizenship. It just happened to be after he nominated and had tried email accounts that were non-existent.

The Justices want to get to 2016. At one point, it was put "we are in 1898, we have a long way to (get to 2016)."

The Chief Justice Susan Kiefel stated in frustration, "I don't understand the relevance to the case," "what are we getting out of this?" and "can you bring us up to date?"

Newlinds is trying to mix Roberts's "state of mind" or the view he is "entitled to" with a recounting of history, we will find out if he has managed to take the Justices there.