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Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

12 The principal question turns upon the proper construction of s 44(i) of the Constitution.

13 The approach to construction urged by the amicus and on behalf of Mr Windsor gives s 44(i) its textual meaning, subject only to the implicit qualification in s 44(i) that the foreign law conferring foreign citizenship must be consistent with the constitutional imperative underlying that provision, namely, that an Australian citizen not be prevented by foreign law from participation in representative government where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her foreign citizenship. Three alternatives to this approach were proposed. Each of these alternatives involves a construction that departs substantially from the text. The minimum required by all three approaches was, as Deane J said in dissent in Sykes v Cleary, that s 44(i) be construed as "impliedly containing a … mental element" which informs the acquisition or retention of foreign citizenship.

14 First, the approach of the Attorney-General, adopted by Senators Canavan, Roberts and Xenophon, was that s 44(i) requires that the foreign citizenship be voluntarily obtained or voluntarily retained. The implied element of voluntariness was said to import a requirement that the person know or be wilfully blind about his or her foreign citizenship. At some points in the Attorney-General's submissions it was submitted that awareness of a "considerable, serious or sizeable prospect" or a "real and substantial prospect" of foreign citizenship would be sufficient.

15 This approach was applied by the Attorney-General in a way that drew a distinction between "natural-born" Australians – that is, those who are Australian citizens by the circumstances of their birth – and naturalised Australians. A natural-born Australian would be disqualified if he or she took active steps to become a foreign citizen or, after obtaining the requisite degree of knowledge, failed to take reasonable steps to renounce that citizenship. On the other hand, a naturalised Australian who had not taken all reasonable steps to renounce a foreign citizenship would be deemed to have voluntarily retained that foreign citizenship even if he or she honestly believed that naturalisation had involved