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Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

94 Ms Waters was born in February 1977 in Winnipeg, Canada to Australian parents who were living in Canada at the time for study and work purposes. Neither was a permanent resident of Canada. Ms Waters' birth was registered with the Australian High Commission in Ottawa in June 1977. It was not in doubt that Ms Waters was an Australian citizen by descent. In January 1978, as an infant aged 11 months, Ms Waters left Canada with her parents, who were returning to live in Australia.

95 Ms Waters has never held a Canadian passport. She has not visited Canada since leaving it in January 1978. She has always considered herself to be an Australian and has never understood that she owes allegiance to any other country. She has not sought or received consular assistance or any other kind of government assistance from Canada and she has not exercised any rights as a Canadian citizen. Her mother had given her to understand that she would be eligible to apply for Canadian citizenship when she turned 21. On turning 21 in 1998, Ms Waters considered applying for Canadian citizenship but she decided against it.

96 On 14 July 2017, following Mr Ludlam's resignation from the Senate, Ms Waters' father raised with her a concern that her citizenship status may have been affected by her birth in Canada. Ms Waters sought advice from the Clerk of the Senate and from the Canadian authorities. In light of the advice, Ms Waters concluded that she was a Canadian citizen. On 18 July 2017, Ms Waters wrote to the President of the Senate resigning from the Senate with immediate effect. On 27 July 2017, Ms Waters applied to the High Commission of Canada seeking to renounce her Canadian citizenship. On 7 August 2017, Ms Waters received written confirmation from the High Commission of Canada that she had ceased to be a Canadian citizen with effect from 5 August 2017.

97 The evidence of Canadian citizenship law is contained in the report of Mr Lorne Waldman, a practising Canadian lawyer. In summary, at the time of Ms Waters' birth, Canadian citizenship was governed by the Canadian Citizenship Act, RSC 1970, c C-19, which, relevantly, provided that a person born after 31 December 1946 is a natural-born Canadian citizen if the person is born in Canada. Canadian-born children of parents having certain diplomatic connections are excepted from the conferral of Canadian citizenship at birth. There is no suggestion that Ms Waters' parents came within that exception. The Citizenship Act, SC 1974-75-76, c 108 came into force a week after Ms Waters'