Page:Re Gallagher.pdf/7

 1 KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ. On 31 May 2016 Senator Katy Gallagher lodged her nomination as a candidate for election to the Senate in the federal election to be held on 2 July 2016. Senator Gallagher had already served as a senator from 26 March 2015, having filled a vacancy left by the resignation of a senator. On 2 August 2016 Senator Gallagher was returned as a duly elected senator for the Australian Capital Territory.

2 Section 44(i) of the Constitution in relevant part provides:

""Any person who:

(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; …

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.""

3 The temporal focus for the purposes of s 44(i) is on the date of nomination as the date on and after which s 44(i) applies until the completion of the electoral process. That is because the words in s 44 "shall be incapable of being chosen" refer to the process of being chosen, of which nomination is an essential part.

4 It is not in dispute that on and after the date of her nomination for election as a senator, Senator Gallagher was a British citizen. It follows that Senator Gallagher was a citizen of a foreign power within the meaning of s 44(i). Senator Gallagher retained that status until 16 August 2016, when her declaration of renunciation of that citizenship was registered by the Home Office of the United Kingdom.

5 On 6 December 2017 the Senate resolved that certain questions respecting a vacancy in the representation of the Australian Capital Territory in the Senate, for the place for which Senator Gallagher was returned, should be referred to the