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Kiefel CJ Bell J Keane J Nettle J Gordon J

Court of Disputed Returns. On 7 December 2017, pursuant to s 377 of the Commonwealth Electoral Act 1918 (Cth), the President of the Senate transmitted the following questions for the determination of the Court of Disputed Returns:

(a) whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation for the Australian Capital Territory in the Senate for the place for which Katy Gallagher was returned;

(b) if the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled;

(c) what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and

(d) what, if any, orders should be made as to the costs of these proceedings.

6 The Commonwealth Attorney-General and Senator Gallagher were each deemed to be a party to the reference pursuant to orders made by Kiefel CJ and made submissions as to the questions.

7 The words "subject" and "citizen" of a foreign power, which appear in s 44(i), connote the existence of a state of affairs involving the existence of a status, or of rights referable to such a status, under the law of the foreign power. The second limb of s 44(i) is concerned with the existence of a duty by a person to a foreign power as an aspect of the status of citizenship.

8 In Re Canavan this Court held that, subject only to an implicit qualification in s 44(i), to which reference will shortly be made, the words of