“It is relevant to keep in mind the target [of the provision] as it was framed and operated”.

Donaghue says that looking at the history of section 44, it was focused on “voluntarily acquisition” of foreign citizenship.

He says if you were naturalised and became a British subject, you became entitled to the rights and privileges of a citizen, which is the language used in section 44. He argues that it took being actively naturalised to get those rights – they weren’t automatically applied through citizenship.

Going back 30 years before the constitution commenced, Donaghue says the law made distinctions between those who actively applied/obtained foreign citizenship and those who did not.

That comes back to the core of the government’s argument – that if you don’t actively seek out foreign citizenship or do anything active to retain it, and don’t have reasonable suspicions you could be a foreign citizen, then you can’t be in breach of section 44.

The solicitor general has just taken us through a thrilling history of section 44. I don’t want you to get too excited so I’ll save you the nitty-gritty (it is still early, after all) but basically Donaghue was arguing the section was not created for the situation we find ourselves in today.

“The target is not being a dual citizen, it is actively seeking out foreign citizenship” which was identified as being inconsistent with sitting in parliament, he argues.

Donaghue brings up that the British parliament allows dual citizens – as long as they were natural born subjects.

Donaghue is now summarising citizenship laws – for both Australia and some of the foreign powers in question.

We are not allowed to take devices into the room where the case is being held, so in order to transmit was is happening, we have to sit down the hall.

Just for context, the overflow court is one of the high court hearing rooms – but we are all looking at a split screen broadcast of the proceedings.

This is going to be one of the main points we see argued. Given the multicultural nature of Australia, and that a lot of people are aware of potential citizenship conflicts, and renounce before they enter parliament, is it reasonable that these MPs did not check before nominating?

But Donaghue said in the government’s submission, if someone is not aware, or couldn’t be aware, then they shouldn’t be disqualified.

The court has just brought up the fact that “natural-born Australians” are usually “on notice” of potential foreign citizenship, given the nation’s history.

And we have got to the crux of the government’s case – it says section 44 should be read as “voluntarily obtaining or retaining” foreign citizenship.

The chief justice, Susan Kiefel, is questioning Donaghue over “the subjective component over what would be a positive step” towards obtaining/retaining a foreign citizen.

Donaghue says if someone became a citizen because someone filled out paperwork for them and lodged it without their knowledge, that would not be a positive step, or voluntarily becoming a citizen, despite the laws of the foreign power, at least under the test the government is arguing.

“Knowledge of a sufficiently high prospect” that they could have foreign citizenship is another crucial aspect of the government’s case.

Donaghue is arguing that if there was that knowledge “and they shut their eyes to it”, then they should be found in breach – that’s the government’s argument for why Scott Ludlam and Malcolm Roberts should be found in breach.

But it argues the others didn’t have the knowledge of “a sufficiently high prospect” and, therefore, couldn’t have known they were in conflict with section 44.

Updated at 02.50 BST