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)).

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.