Re Gallagher

The High Court, sitting as the Court of Disputed Returns, has decided a matter referred to it by the Senate on s 44(i) eligibility. Section 44(i) of the Australian Constitution provides that any person who is ‘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’. Senator Katy Gallagher (who first became a senator by filling a vacancy in 2015), lodged her nomination for the 2016 election on 31 May and was duly elected on 2 July 2016. At the date of nomination, she was a British citizen and thus was a citizen of a foreign power within the meaning of s 44(i). In August 2016, the UK Home Office acknowledged her renunciation of that citizenship. In December 2017, the Senate referred questions over Senator Gallagher’s eligibility to the Court of Disputed Returns.

The Court (Kiefel CJ, Bell, Keane, Nettle, and Gordon JJ, Gageler J, Edelman J) held that Gallagher was not eligible to be chosen by reason of s 44(i), and consequently there was a vacancy in the representation of the ACT which should be filled by a special count of the ballots.

The joint judges (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) first reiterated the principles laid down by the Court in Sykes v Cleary [1992] HCA 60 and Re Canavan [2017] HCA 45 (see [7]ff). Section 44(i) disqualifies foreign citizens from being chosen as a Senator or MP, and has this effect regardless of that person’s knowledge of that status or intention to act on the duty of allegiance to a foreign power. Foreign citizenship, and the ability to renounce that citizenship, is determined by reference to the laws of relevant country. In Re Canavan, the Court recognised an implicit qualification to s 44(i) arising from the ‘constitutional imperative’ underlying that section: that no Australian citizen could be ‘irremediably’ prevented by foreign law from participating in Australia’s representative government, and that, at least, this could be so where that person has taken all reasonable steps under the foreign law to renounce that citizenship (see [11]). Gallagher’s submission here was that British law should be read as operating in exactly this way (at [12]).

Turning to the details of British renunciation law, the joint judges noted that the British Nationality Act 1981 (UK) allows a person to renounce British citizenship, and on registration of that declaration by the Secretary of State, that person ceases to be a British citizen (at [14]). The renunciation must be made in a particular form, Form RN, documents proving British citizenship must be provided, and a fee must be paid (at [15]). Gallagher completed the form on 20 April 2016, provided her birth certificate and Australian passport, and credit card details, which was debited on 6 May 2016 (at [16ff]). But in July 2016 the Home Office requested documents showing that she was indeed a British citizen (here, her parents’ birth and marriage certificate), which she did: sometime before 30 August 2016, the Home Office advised Gallagher that the declaration had been registered (at [18]).

Before the Court of Disputed Returns, Gallagher contended that by 20 April 2016, or at the latest by 6 May 2016 (the date of debiting), she had taken all steps required under British law that were ‘within her power’ to renounce her citizenship: it was then for the Secretary of State to choose the time and manner to perform the duty under that law, and that discretion was an ‘irremediable impediment’ to Gallagher’s participation in the 2106 election (see [19]). The Commonwealth Attorney-General contended that it is not enough for a person to merely take steps to renounce, unless the foreign law provides an irremediable impediment to renunciation: British law does not do so as it does not make it impossible or not reasonably possible to renounce (at [21]).

The joint judges accepted the Commonwealth’s argument as clearly reflecting the law stated in Sykes v Cleary and Re Canavan (at [22]). The constitutional imperative is narrowly focused on foreign laws that prevent a person from ever ‘freeing’ himself or herself of the citizenship of that foreign country, thus preventing them from lifting the disqualification in s 44(i) (at [23]ff). Foreign laws that require particular steps be taken will not ‘irremediably prevent’ renunciation: it must rather be an insurmountable obstacle, or a process that was unreasonable for, for example, putting the renouncer at personal risk (at [27]ff). The joint judges also explicitly rejected Gallagher’s submission that it is not sufficient that a person only take all steps reasonably required for the exception to s 44(i) to apply: the foreign law must also itself ‘irremediably prevent’ renunciation (at [30]ff). The joint judges added that the requirement of taking all those steps, even where the law prevents renunciation, is required by s 44(i)’s concerns about the duty or allegiance to a foreign power: taking those steps is a manifestation that the person has done all they can (at [32]). Gallagher could not identify any aspect of British law that would constitute an irremediable impediment, and that a decision might not be made in time for a particular person’s nomination for an election does not constitute an irremediable impediment (see [37]ff).

Gageler J agreed with the responses given by the joint judges, and with their reasons, adding further reasons explaining his Honour’s view of the constitutional imperative. Gageler J emphasised that the implied exception avoids rigidly operating in a way that undermines the system of responsible and representative government that it aims to protect; namely, that arbitrary or intransigent foreign laws cannot frustrate the ability of Australian citizens to participate in Australian government (at [43]). Specifically, it aims at allowing Australian citizens who irremediable retains foreign citizenship; who have attempted to renounce but are prevented from doing so (at [44]). It is not engaged merely because a person has taken all reasonable steps and is awaiting the completion of that process: ‘Retention of foreign citizenship can hardly be said to be irremediable while it remains in the process of being remedied’ (at [45]). Instead, the implied exception can only be engaged if and when the process of renunciation turns out, for practical purposes, to be one that will not permit renunciation, ‘requiring if not that an impasse has actually occurred then at least that an impasse can be confidently predicted’ (at [45]). Gallagher remained a citizen of a foreign power (at [46]), and the precise timing of the 2016 election has no bearing on the disqualification requirements in s 44 (see at [47]ff).

Edelman J also agreed with the responses given by the joint judges, agreeing with ‘generally those [reasons given] in the joint judgment’ (at [69]), and offered his own reasons on the constitutional imperative and non-recognition of foreign laws. Edelman J first noted that foreign laws will generally not be recognised where they are inconsistent with local policy or the maintenance of local political institutions (at [52]). This rule has been applied to foreign laws on citizenship, notably by Brennan J in Sykes v Cleary, who used recognition as an ‘anterior question’ to be considered prior to the application of s 44(i): ‘that whether a person was a subject or citizen of a foreign power was a question for the law of that foreign power, subject to exceptions recognised by international law as well as exceptions sourced in public policy derived from both common law and the Constitution‘ (at [53]), such as a ‘mischievous’ foreign statute conferring citizenship on all Australians to disqualify them from their own Parliament (at [54]). Edelman J noted that it was unnecessary in this matter to consider if any further exceptions should exist: while Gallagher’s arguments suggested that parts of the British law should not be ‘recognised’ she did not focus on the anterior question and instead ‘correctly assumed that none of the existing, limited exceptions applied to prevent recognition of the foreign law’: at [55]).

Turning, then, to the implied constitutional qualification, Edelman J saw s 44(i) against the backdrop of other limitations on participation in government in the Constitution, and as focusing on preventing foreign laws from ‘stultify[ing] a persons’ qualified ability to participate’ (at [58]). The ‘irremediable’ aspect includes situations where the foreign law would make participation permanently impossible (at [59]), though it also extends to laws that have the practical effect of imposing unreasonable obstacles to renunciation (at [60]). Edelman J rejected Galalgher’s submission that the British law here involved unreasonable obstacles, specifically, the action of a foreign official: while some circumstances might involve foreign officials making unreasonable requests, or unreasonably refusing to exercise discretion, that is not clear in this situation (see at [64]ff, and [68]):

Ultimately, perhaps the most fundamental difficulty for Senator Gallagher’s submission that actions of foreign officials should be automatically excluded by the implication is that the submission shears the constitutional implication from its rationale of ensuring that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. The submission treats as an ‘unreasonable obstacle’ falling within the implication any foreign law that does not irremediably prevent participation, but which might have an arbitrary or discriminatory effect. This would require a different implication, one which is lacking in any textual or structural constitutional foundation.

Gallagher’s vacancy will be filled by a special count of the ballots. The directions needed to give effect to that count will be made by a single Justice (Answer to Question (b)).

High Court Judgment [2018] HCA 17 9 May 2018
Result Vacancy in the Senate for the representation of the ACT for which Gallagher was returned, to be filled by special count
High Court Documents Re Gallagher
Full Court Hearing [2018] HCATrans 46 14 March 2018
Hearings, Kiefel CJ [2018] HCATrans 14 12 February 2018
[2018] HCATrans 1 19 January 2018

ORDER

The questions referred to the Court of Disputed Returns by the Senate be answered as follows:

Question (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?

Answer

Yes.

Question (b)

If the answer to Question (a) is “yes”, by what means and in what manner that vacancy should be filled?

Answer

The vacancy should be filled by a special count of the ballot papers. Any direction necessary to give effect to the conduct of the special count should be made by a single Justice.

Question (c)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

Unnecessary to answer.

Question (d)

What, if any, orders should be made as to the costs of these proceedings?

Answer

Unnecessary to answer.

This entry was posted in Case Pages, Decided Cases, Opinions by Martin Clark. Bookmark the permalink.

About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

17 thoughts on “Re Gallagher

  1. The High Court got bloody-minded about all the s44 cases and decided to go black letter, thus making all the bush lawyers screaming “the Constitution doesn’t include any exceptions, how can you imply exceptions into the Constitution?” a lot more right than everyone who thought the High Court would continue to imply practical exceptions.

    That this puts eligibility into the hands of foreign officials (who managed to process John Alexander’s renunciation at lightspeed so he could nominate in time for a byelection called before he’d even start the renunciation process) apparently doesn’t bother the High Court.

    That this deters Australians from migrant backgrounds and poorer backgrounds from standing for Parliament – especially in the event of early elections where there is less time to make arrangements – because of the uncertainty and because of the cost- apparently doesn’t bother the High Court.

    More wealthy white second and third generation Australians to be MPs, then! Great outcome.

    Worst HCA judgment in a long, long time. This is not a partisan call, I would take no issue with them enunciating a reasonable steps test that still left Senator Gallagher out in the cold on the facts. Having no test at all outside the fringe case where someone is “irremediably” (what a terrible word, incidentally; the plain English movement is probably having apoplexy) prevented from renouncing, a difficult thing to prove without someone being put to great expense and delay and uncertainty – what major party will take a risk on that any time in the next few decades?- …. just so lazy, ignoring everything but the black letter of the Constitution. As someone who began studying law soon after Mabo and was so impressed by the work done to balance the competing legal principles and approaches, this is about the farthest thing from a judgment like that.

    • I am not sure one can say that eligibility is placed in the hands of foreign officials. If it is, it is only because the Australian person has allowed it to happen. Any Australian holding foreign citizenship and with a notion that they may want to become as Australian Federal MP simply has to take steps to rid themselves of that citizenship. The sooner they take steps the sooner they are likely to make themselves eligible, except in the case where renunciation is not reasonably possible, ie where their ineligibility is irremediable. In the latter case, they are eligible even though a foreign citizen (which raises an opportunity for genuine foreign mischief: a country X law whereby country X citizens also holding Australian citizenship are not allowed to renounce their country X citizenship).

      Gallagher could have initiated her steps to renounce much earlier than April 2016. Perhaps she did not realize until then that she was a dual citizen, just as Barnaby Joyce and others who have been ruled ineligible did not realize they held foreign citizenship. Unlike the others, Gallagher realized her dual citizenship before nominating. Whether she acted immediately upon realizing her dual citizenship is unclear to me, but ultimately irrelevant. Like the others, she had not rid herself of the foreign citizenship by the time of nominations in May 2016. Had she included with her initial renunciation application better proof of her father’s UK citizenship and her parent’s marriage, processing would have been quicker and she may have been solely Australian by the time the process of choosing Senators began. Had there not been a July election, but one late in 2016, she would have been ok.

      What disturbs me about Gallagher is why in Aoril 2016, by which time she was aware of her dual citizenship and the need to be rid of it to be an MP (hence her renunciation application), she did not immediately inform the Senate, in which she was then sitting, of her foreign citizenship and remove herself from the 44th Parliament. It seems to me she knowingly sat in Senate as an ineligible person. Contempt of Parliament, I suggest; but perhaps not contrary to law. She might argue her own beliefs about her citizenship were irrelevant to her eligibility and that she was actually eligible, particularly given that the High Court, in Alley v Gillespie, has ruled that only the CDR or a purported MP’s house can rule a purported MP ineligible; and that did not happen, albeit because of Gallagher’s silence on her foreign citizenship. One wonders why there is not a recognized ‘constitutional imperative’ that would allow, indeed require, the High Court itself to rule on eligibility, at least in some circumstances. One wonders too why there is not some appropriately defined offence and penalty in the Electoral Act.

      I too have a ‘beef’ wrt John Alexander but not with the fact that he apparently managed to rid himself of his UK citizenship more quickly than did Gallagher. My issue is whether he (and likewise any of those MHRs who have resigned following Re Gallagher and who stand at consequent by-elections) ought to be eligible to be elected. By resigning because of his acknowledged (possible) foreign citizenship, Alexander avoided a ruling by either the House or the Court of Disputed Returns (CDR) on referral that he was ineligible and that the vacancy in his seat created by the May 2016 dissolution of the House remained unfilled. His resignation led to a standard by-election for Bennelong.

      Had there been a decision that he was ineligible, he would have been in the same situation as Barnaby Joyce. Joyce’s reelection at the New England by-election was not challenged on eligibility grounds in the CDR by petition and nor has the question of his current eligibility been raised in the House. I have raised it in an earlier comment (http://blogs.unimelb.edu.au/opinionsonhigh/2017/12/06/re-canavan-et-al-case-page/ ). I was interested to read Gageler J in Re Gallagher [at 48], “ … the process of being chosen to which each of the disqualifications in s 44 applies will always commence at the time of nomination and will continue until a candidate who is qualified to be chosen and who is not disqualified from being chosen as a senator or member of the House of Representatives is returned as elected”. The process of choosing a member for New England for the 45th Parliament commenced in May 2016 with nominations for a July 2016 poll. Though the election was subsequently voided by the CDR, the process of choice necessarily continued, in the form of a supplementary by-election. Joyce’s renunciation by the time of the by-election could not have the effect of overcoming his ineligibility dating from earlier in the choice process, the very ineligibility that gives rise to the supplementary election.

      While probably not to the liking of some (John Pyke, for example), it seems to me (just thinking off the top of my head) it would be expedient for Parliament to amend the Electoral Act to make it explicit that any person (successful candidate or not) ineligible to be chosen to fill a vacancy at a general election remains ineligible to be chosen to fill any such vacancy until the vacancy is duly filled. That would prevent further instances like that of Joyce. To deal with strategic resignations like Alexander’s to avoid the possibility of being found ineligible and then re-standing if no longer disqualified, there could be included a clause to the effect that any MP who resigns from a seat shall be ineligible to be chosen to fill any vacancy in that seat until the end of the MP’s term or the dissolution of the house in which the MP sits, whichever is the sooner.

      • And wrong as well as harsh, Ross. The HC has consistently taken different approaches to the filling of Senate and Reps vacancies after finding that a successful candidate had been ineligible.

        For the Senate, they have reasoned that, since the introduction of proportional representation in 1949, another election is not necessary; because someone who has voted for a disqualified candidate would probably have voted for the next person on the party’s ticket, ordering the votes to be recounted as if the disqualified candidate was not on the ballot will produce a fair result; Re Wood [1988] HCA 22 at [19]-[20]. So in a rather strained sense the election is still potentially “on” as long as someone might be declared ineligible and the people who were next on a party’s ticket can’t do anything disqualifying for the whole of the term, as Hollie Hughes found out in Re Nash (No 2). You can follow the logic of this but it seems harsh and unreasonable, unless you just have no sympathy at all for the people who put themselves up as political candidates. In fact it’s a perfect example of what Baron Parke in the 19h century would have called a “strong” opinion – “one in which by the employment of pure legal reasoning one arrived inescapably at a conclusion which no layman could possibly have foreseen”. The bit you’re quoting above from Re Gallagher of course applies to the Senate.

        For Reps elections it is quite different; since recounting the votes with the winner eliminated would produce crazy results another election must be held – see Sykes v Clearly at [31]-[33]. [They used to point out that this is not technically a by-election but a second attempt to conduct the original election, but they seem to have dropped that insistence lately.] This means that the first election has finished when the writs were returned and, contrary to your analysis, a new “process of choice” starts again (whether you call it a by-election or not) with the issue of new writs, so eligibility is assessed at the *new* nominations date. So Cleary was re-elected, as Joyce and Alexander were more recently, and most of the recent four will be (with a question mark over Susan Lamb).

        Complicated? Yes. A bit silly? Yes. Unfair to some people, like Hollie Hughes? Yes. But there is *some* logic behind it all.

  2. Hmmm yes, fairly predictable and consistent with the earlier decisions. [I trust, despite Bill Shorten’s predictions of success, counsel had told the Senator “Look, this point is worth arguing but it may well not persuade the court”.] The words of para 44(i) are archaic and unjust in some of their effects, but they’re pretty intractable – it says anyone who *is* a subject or citizen of a foreigh power is ineligible. Really hard to get around that, even by applying purposive, contextual, or mischief-avoiding interpretation.

    Amendment is the obvious solution, though Malcolm (to nobody’s surprise) seems to be wimping out on that. We could amend the oath at the same time so that MPs swear allegiance to the Queen and the People of Australia, instead of to Her Majesty simply as Queen of the UK of GB and NI. To calm the fears of the hysterics who pop up on blogs to defend s 44 saying “we don’t want MPs with divided allegiances”, we could even add a clause where they promise that in case of a conflict of interests with any other nation they would in all cases favour the interests of Australia and its people.

    The bit of Sykes v Cleary that I hope someone will ask the HC to reconsider some time (though it would have been no help in the recent cases) is the finding that the eligibility rules apply at the time of nomination. If you focus only on the eventually-successful candidate, the decision makes a deal of sense – the process of “being chosen” does, in a way, start, *for that candidate*, at the close of nominations. But if you remember that there are also other candidates in the field it makes much less sense. They are not all “being chosen” – they are *trying* to be chosen and only one eventually succeeds in being chosen. That is, a particular one has “been chosen” only at the announcement of results. Since there *is* some ambiguity in these words (unlike, sadly, “is a subject or citizen”) then some purposive arguments should come into play. The purpose of the “office of profit” paragraph – which is to avoid having people sitting in Parliament who are dependant on the Crown for favours – is *not* promoted by saying that a State school teacher (or even a senior-ish Commonwealth servant) cannot even nominate. It would be perfectly appropriate, and fits one possible meaning of the words, to say they must resign when it looks like they may be “chosen”. In the longer run this should also be amended, to say that MPs can rid themselves of any disqualifying factors before being sworn in, but until that happens there is room, in the standard principles of interpretation, for the strictness of that aspect of Sykes v Cleary to be watered down. I wait in anticipation (but without holding my breath).

  3. Was there any conceivable way for Gallagher to intervene after applying to renounce but before the British authorities had formalised the renunciation?

    If not, then I really can’t see how this judgement makes sense.

    OTOH if so, then [within bounds of the sense of s.44(i)] this follows.

    • Clearly (since John Alexander did it) you can ask them very nicely to process your renunciation urgently, but whether they do is up to them. Perhaps Senator Gallagher could have been pushier, but the High Court’s position is more that if you have a second citizenship and the other country’s process takes a while, well, too bad, you just have to hope they get it done in time. As long as the other country doesn’t completely refuse to process renunciations you are in their hands. “Reasonable steps” is dead.

      That might be fair enough for the UK where it might take a few months but at least you be confident it will happen. This really shafts people from a lot of less transparent countries which might not “irremediably” prevent renunciation but which may also take on the order of years, not weeks, to process it. This is why the decision is so badly written… this “irremediably” test might as well be “no exceptions”.

  4. “Intervene” in what way Damon? I did see a suggestion (from a “Liberal” I think) that she could have asked them to expedite it but didn’t, so “yah boo sucks” or w.t.t.e. to her. And someone else (presumably from Labor) said something to the effect that that’s all very well if you have Tory friends in the High Commission. Advice from anyone with experience of dealing with the Brits in similar matters (if there is such a person) would be appreciated.

    • Ugh yes that was unclear, John (can you tell I’m a layperson!?) Thanks for pointing that out.

      What I meant was once Gallagher submitted her application to renounce, was there any way for her to withdraw her application (“change her mind” in effect)? If so, I understand the Court’s reasoning. If not (i.e. once one has applied then it’s out of one’s hands) then I consider that rather unfair. But perhaps that’s a commentary on the text of s.44(i) rather than the Court’s reasoning.

  5. John, thanks for taking the time and making the effort to respond to my comments. I appreciate your constructive comments. No doubt getting laypersons to recognize their misunderstandings of the law can be time consuming and frustrating; but hopeful rewarding when they show signs of learning. I fear I am going to disappoint you.

    My comments on Barnaby Joyce MHR are obviously not directly relevant to the senate case of Re Gallagher. I made them because one of the (political) consequences of the Re Gallagher decision is that several MHRs have resigned because they too might have been ineligible for similar reasons to Gallagher. These MHRs are in the same situation as John Alexander was last year. Unlike Joyce, who was actually ruled ineligible, they and Alexander have avoided a possible ineligibility ruling by resigning. By the time they stand for election at the consequent by-elections they all (presumably) will have rid themselves of their disqualifying factors.

    It is my political opinion that anyone like Joyce who is actually ruled ineligible to have been chosen for a seat should not be eligible to fill the unfilled seat he or she has been purporting to rightly occupy. I also think that anyone who resigns, thereby avoiding a ruling on their possible ineligibility, should share the same fate as I would wish for Joyce and so also be barred from standing for the seat from which they have resigned. I suggested how these political aims could be achieved by additions to the Electoral Act. I appreciate many would disagree and would consider me harsh.

    I do have a layman’s ‘legal opinion’ on whether a person who was chosen but who was ineligible to be chosen can become eligible to be chosen and then actually be chosen to fill the unfilled seat he or she has wrongly been occupying. I was wrong to assert (in relation to Joyce) the person would still be ineligible. I think I would be right to say the opinion is arguable and worthy of arguing, just as John suggests he would like to see to argued before the Court the position that capability of being chosen does not relate to time of nomination.

    To avoid further adulterating the discussion of Re Gallagher with discussion of the filling of unfilled House of Reps seats I am just about to submit my rather rambling comment to the more appropriate Re Canavan, Re Joyce, etc. case page, http://blogs.unimelb.edu.au/opinionsonhigh/2017/12/06/re-canavan-et-al-case-page/ . The moderators may or may not accept it.

    • Ross and Damon, I do think you’re both being a bit harsh. There are millions of people in this country who were born here and have never felt anything but Australian, but who have a parent who was born overseas and migrated here before the kid was born. I can perfectly-well understand how they thought they were Australian and nothing but Australian. The fact that people of Irish descent have, or can claim, Irish citizenship was well publicised, but as to all the other countries – who knew? Only experts in citizenship law, and how many of them are there? In fact, when the UK tightened up the rules about “patrials” having a right of entry (which got a lot of publicity at the time), I can understand people with a Brit parent assuming it applied to them and mentally writing off any claim to British citizenship, though I *think* it may have only applied to those with Brit grandparents. And what about people whose parents came from eastern Europe, where the borders changed after WW2 and people were stripped of citizenship and then, in some cases, had it reinstated in the 1990s?

      Sure, after Sykes v Cleary anyone who paid attention to High Court judgments in a particularly weird branch of Constitutional Law should have known – and the parties, with lawyers on staff, certainly should have done their vetting more carefully – but I can well understand that when someone is fighting for preselection and then for election the last thing they would think of is “Hey wait a minute, my Mum or Dad was a Pom; do I have to do something about that?” – especially if Mum or Dad walked out when the kid was a few months, or years, old. Most of the voters seem to think so too – the fact that the ineligible ones have so far all been re-elected may show a degree of rusted-on loyalty-to-party, but it also (journos covering the by-elections say they have detected signs of this) reflects a degree of impatience with the fact that they have to go back to the polls because someone was disqualified on a technicality. [This may even extend to One Nation voters – Pauline says she’s against any amendment of s 44, but one of her Senators fell foul of the section and I wonder how many of her voters are 10-pound Poms or had a parent who was a 10-pound Pom?] Still, everybody knows now – and those who thought there was a broad “reasonable steps” exception (having not read Sykes v Cleary closely enough) have been disabused of it. From now on, but only from now on, if a dual citizen runs for election, they will deserve disqualification and also deserve your disapproval!

      But the section is silly – most other countries allow dual cits in their Parliaments. Even the USA, which insists that its President be native-born, is more relaxed about ordinary members of Congress. And none of our State Parliaments have such a rule – and none of them have been subverted by foreign agents. It really is time that we updated our Book of Rules.

      • I am not unsympsthetic to your point of view, John. A year or so ago, I thought the Court would have some discretion in assigning Constitutional meaning to “subject” and “citizen” and naively argued true citizenship involved a duality between country and person and, as in a contract, requiring formal offer and formal acceptance. The argument got short thrift of course from anyone who knew anything about how countries are to respect the laws of other countries.

        My view that a person ruled ineligible for the House (or resigns, so avoiding such a ruling) should not be able to stand in a consequent by-election apply regardless of what the test of eligibility is. This view applies to all the bases of disqualification, not just foreign citizenship. The view is not directed against dual citizenship per se and not quite as harsh as it first appears.

  6. Oh yes Ross, I just searched High Court Transcripts and found four instances where a judge ruled that a submission by you “will not be received by the Court and will not be taken into account on the hearing of this reference.” They take a harsh line but they seem to think that yours is beyond the pale.

    • Quite so, the Court has rejected my applications to be heard on several of the referrals. They were rejected for various reasons including being a person without an interest in the case, for being wrong in law, and for my indicated submission being of no help to the Court.

      The Court may indeed think my lines of argument are ‘beyond the pale’ and may have chosen to express that opinion rather euphemistically. The rejections may say more about the quality of the applications and my particular lines of argument than about the arguability of the points of view I was inviting the Court to adopt. That said, no lesser a legal mind than Labor lawyer John McCarthy got short shrift from the Court (Brennan J) when representing Free in Free v Kelly and arguing that a recount should be used rather than a further election in that particular House ineligibility case (as I tried to do for such cases in general).

      It is a pity you did not apply to be heard on the view that no choice is made until the announcement of a person as chosen and that eligibility for election should accordingly be assessed only at that time. It will give you no comfort but it strikes me as a view having merit. Given that the facts of the particular referred case would not be established at the time application to be heard, the Court may well have granted you a hearing, at least conditionally on particular facts emerging during the hearings. I cannot see any further House referrals in the near future or therefore opportunities for your view to be heard. More resignations perhaps, but not referrals.

      • Ross, thank you for your suggestion but I didn’t apply to intervene on that point for several reasons, the main one being that it wasn’t relevant to any of the dual cit’ship cases and only relevant to Hollie Hughes if she cleared several other hurdles first. If it had become relevant, Deane J’s dissent in Cleary was there for counsel to pick up as the basis of their argument. I might have argued it more persuasively, but, like you, I would have to get over the hurdle of interest/standing first. (Hmmm, I wonder if “I could sell more copies of my textbook if you quote me in your judgment” would be sufficient interest? Probably not.)

        I kind of like your “citizenship is a two-way thing” argument, as far as I understand it from your very summary summary. Problem is that the earlier draft of the section referred to persons having taken an oath, etc, or doing an act whereby they had become subjects or citizens, and then it was amended to refer simply to someone who IS a subject or citizen of a foreign power, and the Court has read that as showing an intention on the part of the drafters that they should read it strictly. So by golly they do!

        So I can only say again the section itself is silly in several ways, and rather hard for any but the most creative judge to read down. So we the people should vote to amend it, if the politicians are ever game to suggest a more sensible version.

  7. I am a mere first year JD. This morning, I received PPL interime result. It was a syndicate hypothetical exercise that five questions were given to a group of four or five students. The question I had been allocated was to find source of power for the President of the Senate to refer a matter of a hypothetical Senator’s disputed return to the HCA and to comment on the importance of the principle of separation of power. The mark I received made sense to me, and I am happy with it.

    What I regret, however, is that the fact that I was not sincere enough in facing the question, not in terms of the marks but in terms of the importance of the question.

    Yesterday, the Age had put an article about the effects of Re Gallagher and four MP’s resignation caused by dual citizenship. What caught me was Professor Saunders’ response for the question whether s 44 of the Constitution should be amended. She said “yes” because it is a matter not only about the politicians but of the citizens’ “right to stand for the national parliament.”

    Her comment rang me in two aspects: one is that most people I keep in touch usually draw a clear line between political affairs and their daily lives, and I also usually regard that my days are not a kind of “political”; the other is that I never thought about the importance of this perception while I was researching to answer the question I was given for the assessment.

    As Professor Saunders mentioned on her interview with the Age, only very few Australians become politician, and since they are very few, we do not really in touch with them but via television news. Thus, taking “political affair” as “theirs” is in a way natural to many people I assume.

    But, in the scope of right and duty, a politician and a citizen are never different is what we strongly believe; and this belief is more powerful than the text of the Constitution because it is the foundation of our society that the Constitution has been one of its part.

    So, if you, or one of your family runs for the House, and she or he possesses foreign country’s passport as well as of Australian, then how you would react on this matter should be which I needed to think about before I started to dig the s 44 of the Constitution, is my regret.

    Some may say s 44 does not seem to be read very close to the principle of separation of power.

    Now, after reckoning Professor Saunders’s view, I think it may does because the checks and balances, which the principle of separation of power aim to achieve, is a tool to maintain democracy, and, in this respect, whether s 44 has been blocking ordinary Australian citizens’ right to stand for Parliament, which is another procedural mean to achieve democracy by maintaining representative legislature, may seem to be an important question to answer.

    I do not have solid opinion whether the HCA’s interpretation on s 44 is good or bad yet, still I would keep an eye on what is following up.

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