Page:Re Gallagher.pdf/9

Kiefel CJ Bell J Keane J Nettle J Gordon J

s 44(i) in their ordinary and natural meaning disqualify a person who has the status of a foreign citizen from being chosen or sitting as a senator or member of the House of Representatives. Section 44(i) will have this effect regardless of the extent of the person's knowledge of that status or his or her intention to act upon the duty of allegiance associated with that status.

9 Whether a person is a foreign citizen to whom s 44(i) applies is necessarily determined by reference to the law of the relevant country because it is only that law which can be the source of the status of citizenship or the rights and duties involved in that status. And it is the law of that country which may enable a person to renounce his or her citizenship so that he or she may be freed from the disqualifying effect of s 44(i).

10 In the joint judgment in Sykes v Cleary the possibility was identified that the continuance of foreign citizenship might be "imposed involuntarily by operation of foreign law" on an Australian citizen notwithstanding that the person had "taken reasonable steps to renounce that foreign nationality". If such a situation were to occur not only would an Australian citizen be disqualified from being elected but the foreign law would also practically determine whether s 44(i) was to apply to that person. This could not have been intended when s 44(i) was enacted, their Honours said, and it would be wrong to construe s 44(i) to disbar an Australian citizen who had taken reasonable steps to renounce that foreign nationality. Dawson J agreed that s 44(i) should not be given a construction that "would unreasonably result in some Australian citizens being irremediably incapable of being elected" to either House of Parliament.