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Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [ 2017] HCA 45 (27 October 2017)
Last Updated: 14 March 2018
HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN
JJ
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT
TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
SENATOR THE HON MATTHEW CANAVAN
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT
TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
MR SCOTT LUDLAM
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT
TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
MS LARISSA WATERS
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT
TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
SENATOR MALCOLM ROBERTS
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT
TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
THE HON BARNABY JOYCE MP
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT
TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
SENATOR THE HON FIONA NASH
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT
TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
SENATOR NICK XENOPHON
Re Canavan
Re Ludlam
Re
Waters
Re Roberts [No 2]
Re Joyce
Re
Nash
Re Xenophon
[2017] HCA 45
27 October
2017
C11/2017, C12/2017, C13/2017, C14/2017, C15/2017, C17/2017 and
C18/2017
ORDER
Matter No C11/2017
The questions referred to the Court of Disputed Returns by the President
of the Senate in his letter dated 9 August 2017 be answered
as follows:
Question (a)
Whether, by reason of s 44(i) of the Constitution, there is a vacancy in
the representation of Queensland in the Senate for the place for which Senator
[the Hon] Matthew Canavan was
returned?
Answer
There is no vacancy by reason of s 44(i) of the Constitution in the
representation of Queensland in the Senate for the place for which Senator the
Hon Matthew Canavan was returned.
Question (b)
If the answer to Question (a) is "yes", by what means and in what manner
that vacancy should be filled?
Answer
Does not arise.
Question (c)
What directions and other orders, if any, should the Court make in order
to hear and finally dispose of this reference?
Answer
No further order is required.
Question (d)
What, if any, orders should be made as to the costs of these
proceedings?
Answer
No further order is required.
Matter No C12/2017
The questions referred to the Court of Disputed Returns by the President
of the Senate in his letter dated 9 August 2017 be answered
as follows:
Question (a)
Whether by reason of s 44(i) of the Constitution there is a vacancy in the
representation of Western Australia in the Senate for the place for which
Senator Ludlam was returned?
Answer
There is a vacancy by reason of s 44(i) of the Constitution in the
representation of Western Australia in the Senate for the place for which Mr
Scott Ludlam was returned.
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
directions necessary to give effect to the conduct of the
special count should
be made by a single Justice.
Question (c)
If the answer to Question (a) is "no", is there a casual vacancy in the
representation of Western Australia in the Senate within the
meaning of
s 15 of the Constitution?
Answer
Does not arise.
Question (d)
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.
Matter No C13/2017
The questions referred to the Court of Disputed Returns by the President
of the Senate in his letter dated 9 August 2017 be answered
as follows:
Question (a)
Whether by reason of s 44(i)[] of the Constitution there is a vacancy in
the representation of Queensland in the Senate for the place for which Senator
Waters was returned?
Answer
There is a vacancy by reason of s 44(i) of the Constitution in the
representation of Queensland in the Senate for the place for which
Ms Larissa Waters was returned.
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
directions necessary to give effect to the conduct of the
special count should
be made by a single Justice.
Question (c)
If the answer to Question (a) is "no", is there a casual vacancy in the
representation of Queensland in the Senate within the meaning
of s 15 of
the Constitution?
Answer
Does not arise.
Question (d)
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.
Matter No C14/2017
The questions referred to the Court of Disputed Returns by the President
of the Senate in his letter dated 10 August 2017 be answered
as follows:
Question (a)
Whether by reason of s 44(i) of the Constitution there is a vacancy in the
representation of Queensland in the Senate for the place for which Senator
Roberts was returned?
Answer
There is a vacancy by reason of s 44(i) of the Constitution in the
representation of Queensland in the Senate for the place for which Senator
Malcolm Roberts was returned.
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
directions 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.
Matter No C15/2017
The questions referred to the Court of Disputed Returns by the Speaker of
the House of Representatives in his letter dated 15 August
2017 be answered as
follows:
Question (a)
Whether, by reason of s 44(i) of the Constitution[,] the place of the
Member for New England (Mr Joyce) has become vacant?
Answer
By reason of s 44(i) of the Constitution, the place of the Member for New
England, the Hon Barnaby Joyce MP, is vacant.
Question (b)
If the answer to Question (a) is "yes", by what means and in what manner
that vacancy should be filled?
Answer
There should be a by-election for the election of the Member for New
England.
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.
Matter No C17/2017
The questions referred to the Court of Disputed Returns by the President
of the Senate in his letter dated 5 September 2017 be answered
as
follows:
Question (a)
Whether, by reason of s 44(i) of the Constitution, there is a vacancy in
the representation of New South Wales in the Senate for the place for which
Senator [the Hon] Fiona Nash was
returned?
Answer
There is a vacancy by reason of s 44(i) of the Constitution in the
representation of New South Wales in the Senate for the place for which Senator
the Hon Fiona Nash was returned.
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
directions 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.
Matter No C18/2017
The questions referred to the Court of Disputed Returns by the President
of the Senate in his letter dated 5 September 2017 be answered
as
follows:
Question (a)
Whether by reason of s 44(i) of the Constitution there is a vacancy in the
representation of South Australia in the Senate for the place for which Senator
Xenophon was returned?
Answer
There is no vacancy by reason of s 44(i) of the Constitution in the
representation of South Australia in the Senate for the place for which Senator
Nick Xenophon was returned.
Question (b)
If the answer to question (a) is "yes", by what means and in what manner
that vacancy should be filled?
Answer
Does not arise.
Question (c)
What directions and other orders, if any, should the Court make in order
to hear and finally dispose of this reference?
Answer
No further order is required.
Question (d)
What, if any, orders should be made as to the costs of these
proceedings?
Answer
No further order is required.
Representation
S P Donaghue QC, Solicitor-General of the Commonwealth with
P D Herzfeld, M P Costello and J D Watson appearing on behalf of the
Attorney-General
of the Commonwealth (instructed by Australian Government
Solicitor)
D M J Bennett QC with A L Tokley SC, G J D del Villar and
A K Flecknoe-Brown appearing on behalf of Senator Canavan (instructed
by
Stokes Moore)
B E Walters QC with E A Bennett and A N P McBeth appearing on behalf of Mr
Ludlam and Ms Waters (instructed by FitzGerald and Browne)
C R C Newlinds SC with P Kulevski and R J Scheelings appearing on behalf of
Senator Roberts (instructed by Holman Webb Lawyers)
B W Walker SC with G E S Ng appearing on behalf of Mr Joyce MP and Senator
Nash (instructed by Everingham Solomons Solicitors and
MinterEllison)
A L Tokley SC with H M Heuzenroeder and S A McDonald appearing on behalf of
Senator Xenophon (instructed by Nick Xenophon & Co
Lawyers)
R Merkel QC and J T Gleeson SC with E M Nekvapil and S Zeleznikow appearing
on behalf of Mr Windsor in the reference concerning Mr
Joyce MP
(instructed by Quinn Emanuel Urquhart & Sullivan)
G R Kennett SC with B K Lim appearing as amicus curiae in the references
concerning Senators Canavan, Nash and Xenophon (instructed
by Australian
Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal
revision prior to publication in the Commonwealth Law
Reports.
CATCHWORDS
Re Canavan
Re Ludlam
Re Waters
Re Roberts
[No 2]
Re Joyce
Re Nash
Re Xenophon
Constitutional law (Cth) – Parliamentary elections – References
to Court of Disputed Returns – Where referred persons
elected to
Commonwealth Parliament – Where evidence to suggest each held dual
citizenship at date of nomination for election
– Whether each person
incapable of being chosen or of sitting as senator or member of House of
Representatives by reason of
s 44(i) of Constitution – Proper
construction of s 44(i) of Constitution – Whether s 44(i)
contains implied mental element in relation to acquisition or retention of
foreign citizenship – Whether each person subject
or citizen of foreign
power or entitled to rights or privileges of subject or citizen of foreign power
for purposes of s 44(i).
Words and phrases – "a subject or a citizen ... of a foreign power",
"constitutional imperative", "foreign citizenship", "incapable
of being chosen",
"knowledge", "natural-born", "naturalised", "reasonable steps", "voluntariness",
"voluntary act", "wilful blindness".
Constitution, ss 16, 34, 44(i), 45(i).
Commonwealth Electoral Act
1918 (Cth), ss 163, 376.
- KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ. Section 44 of
the Constitution relevantly 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."
- Section 45(i)
of the Constitution provides that if a senator or a member of the House of
Representatives "becomes subject to any of the disabilities mentioned in the
last preceding section", his or her place "shall thereupon become vacant."
- It
is settled by authority, and not disputed by any party, that in s 44 the
words "shall be incapable of being chosen" refer to the process of being chosen,
of which nomination is an essential
part[1].
Accordingly, the temporal focus for the purposes of s 44(i) is upon the
date of nomination as the date on and after which s 44(i) applies until the
completion of the electoral process.
The proceedings
- Under
the Commonwealth Electoral Act 1918 (Cth) any question respecting the
qualifications of a senator or a member of the House of Representatives, or
respecting a vacancy
in either house of the Parliament, may be referred by
resolution to the Court of Disputed Returns by the house in which the question
arises[2].
Questions concerning the qualifications of six persons elected as senators at
the general election for the Parliament held on 2
July 2016 have been so
referred. In each case the principal question is whether by reason of
s 44(i) of the Constitution there is a vacancy in the place for which the
person was returned.
- The
references concern the qualifications of Senator the Hon Matthew Canavan,
Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm
Roberts,
Senator the Hon Fiona Nash and Senator Nick Xenophon in circumstances
in which there is material to suggest that each held
dual citizenship at the
date he or she nominated for election as a senator. The House of
Representatives has referred like questions
respecting the qualifications of
the Hon Barnaby Joyce MP in circumstances in which there is
material to suggest that he held dual
citizenship at the date of his nomination
for election for the Electoral Division of New England.
- The
subject of reference and the Attorney-General of the Commonwealth is in each
case deemed to be a party to the reference pursuant
to orders made by
Kiefel CJ[3].
In each reference, Kiefel CJ ordered that the statement of the questions
together with all the attachments to the statement transmitted
by the President
of the Senate or the Speaker of the House of Representatives (as the case may
be)[4] is
evidence on the hearing of the reference.
- Mr Kennett SC
was appointed amicus curiae to act as contradictor on issues of law in the
references concerning Senators Canavan,
Nash and Xenophon. Mr Antony
Windsor was deemed a party to the reference concerning Mr Joyce MP.
Mr Ludlam resigned his seat upon
learning that he held dual citizenship.
Ms Waters resigned her seat upon learning that she held dual citizenship.
They were jointly
represented on the hearing of the references.
- The
only reference in which there were any contested issues of fact was that
concerning Senator Roberts. Those issues were resolved
at a hearing before
Keane J[5].
- The
questions referred to this Court, though directed in substance to the same
issues, took three different forms. The questions
relating to
Senators Canavan, Roberts, Nash and Xenophon were as
follows:
"(a) whether, by reason of s 44(i) of the
Constitution, there is a vacancy in the representation of [the Senator's State]
in the Senate for the place for which [the Senator] 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."
- The
questions relating to Mr Joyce MP, whose reference was the only one to
come from the House of Representatives, were nearly identical
to those of the
four Senators mentioned above, except that question (a) asked "whether, by
reason of s 44(i) of the Constitution[,] the place of the Member for New
England (Mr Joyce) has become vacant".
- The
questions relating to Mr Ludlam and Ms Waters were in slightly
different form, reflecting the circumstance that they both resigned
their seats
in the Senate prior to the references to this Court concerning them. Those
questions were as follows:
"(a) whether by reason of s 44(i) of
the Constitution there is a vacancy in the representation of [the former
Senator's State] in the Senate for the place for which [the Senator] was
returned;
(b) if the answer to Question (a) is 'yes', by what means and in what manner
that vacancy should be filled;
(c) if the answer to Question (a) is 'no', is there a casual vacancy in the
representation of [the former Senator's State] in the
Senate within the meaning
of s 15 of the Constitution; and
(d) what directions and other orders, if any, should the Court make in order to
hear and finally dispose of this reference."
- The
principal question turns upon the proper construction of s 44(i) of the
Constitution.
The competing approaches to the construction of
s 44(i)
- The
approach to construction urged by the amicus and on behalf of Mr Windsor
gives s 44(i) its textual meaning, subject only to the implicit
qualification in s 44(i) that the foreign law conferring foreign
citizenship must be consistent with the constitutional imperative underlying
that provision,
namely, that an Australian citizen not be prevented by foreign
law from participation in representative government where it can be
demonstrated
that the person has taken all steps that are reasonably required by the foreign
law to renounce his or her foreign citizenship.
Three alternatives to this
approach were proposed. Each of these alternatives involves a construction that
departs substantially
from the text. The minimum required by all three
approaches was, as Deane J said in dissent in Sykes v
Cleary[6],
that s 44(i) be construed as "impliedly containing a ... mental element"
which informs the acquisition or retention of foreign citizenship.
- First,
the approach of the Attorney-General, adopted by Senators Canavan, Roberts
and Xenophon, was that s 44(i) requires that the foreign citizenship be
voluntarily obtained or voluntarily retained. The implied element of
voluntariness was
said to import a requirement that the person know or be
wilfully blind about his or her foreign citizenship. At some points in the
Attorney-General's submissions it was submitted that awareness of a
"considerable, serious or sizeable prospect" or a "real and substantial
prospect" of foreign citizenship would be sufficient.
- This
approach was applied by the Attorney-General in a way that drew a distinction
between "natural-born" Australians – that
is, those who are Australian
citizens by the circumstances of their birth – and naturalised
Australians. A natural-born Australian
would be disqualified if he or she took
active steps to become a foreign citizen or, after obtaining the requisite
degree of knowledge,
failed to take reasonable steps to renounce that
citizenship. On the other hand, a naturalised Australian who had not taken all
reasonable steps to renounce a foreign citizenship would be deemed to have
voluntarily retained that foreign citizenship even if
he or she honestly
believed that naturalisation had involved renouncing the foreign citizenship.
That was said to be because a naturalised
Australian citizen could be expected,
in the ordinary case, to have the requisite knowledge of his or her pre-existing
foreign citizenship.
- Secondly,
the approach urged by Mr Joyce MP and Senator Nash was that
s 44(i) requires that foreign citizenship be chosen or maintained.
The essence of this approach was knowledge of the foreign citizenship. It was
submitted that a person cannot make
a choice to retain or renounce any foreign
citizenship if he or she has no knowledge of that citizenship. Although the
degree of
knowledge that was said to apply in this context did not include
constructive knowledge, it did include wilful blindness.
- Thirdly,
the approach urged by Mr Ludlam and Ms Waters was that s 44(i)
requires that a person be "put on notice". On this approach, the person would
be disqualified under s 44(i) if he or she had knowledge of facts that, in
the mind of a reasonable person taking a properly diligent approach to
compliance with
the Constitution, ought to call into question the belief that he
or she is not a subject or citizen of a foreign power and prompt proper
inquiries.
Knowledge would include, at least, knowledge of "primary facts" that
would prompt inquiry and, at most, all of the knowledge of
the person.
- By
way of a variation on the Attorney-General's principal theme, it was said that
s 44(i) applies only to a person who has by voluntary act acquired foreign
citizenship, or exercised a right pursuant to the status of foreign
citizenship,
the latter being a way of describing an overt act of retention of foreign
citizenship.
- The
approach urged by the amicus and on behalf of Mr Windsor must be accepted.
It adheres most closely to the ordinary and natural
meaning of the language of
s 44(i). It also accords with the views of a majority of the Justices in
Sykes v Cleary, the authority of which was accepted by all parties. A
consideration of the drafting history of s 44(i) does not warrant a
different conclusion. Further, that approach avoids the uncertainty and
instability that attend the competing
approaches.
The text and
structure of s 44(i)
- As
to the text and structure of s 44(i), in Sykes v Cleary
Brennan J said that "[p]utting acknowledgment of adherence to a foreign
power to one side", s 44(i) consists of three categories of
disqualification, each of which describes a source of a duty on the part of a
candidate for parliamentary
office[7]:
"The
first category covers the case where such a duty arises from an acknowledgment
of the duty by the candidate, senator or member.
The second category covers the
case where the duty is reciprocal to the status conferred by the law of a
foreign power. The third
category covers the case where the duty is reciprocal
to the rights or privileges conferred by the law of a foreign power.
The second category refers to subjects or citizens of a foreign power –
subject being a term appropriate when the foreign power
is a monarch of feudal
origin; citizen when the foreign power is a republic. ...
The third category ... covers those who, though not foreign nationals, are
under the protection of a foreign power as though they
were subjects or citizens
of a foreign power."
- The
amicus submitted that s 44(i) has two limbs, not three as was suggested by
Brennan J. He contended that the first limb disqualifies a person who "is
under any
acknowledgment" of the stated kind, and the second limb disqualifies a
person who "is a subject or a citizen or entitled to the rights
or privileges of
a subject or a citizen of a foreign power". In the first limb, the words "under
any acknowledgment" capture any
"person who has formally or informally
acknowledged allegiance, obedience or adherence to a foreign power and who has
not withdrawn
or revoked that
acknowledgment"[8].
Within this limb the word "acknowledgment" connotes an act involving an exercise
of the will of the person concerned. In contrast,
in the second limb of
s 44(i), the words "subject", "citizen" and "entitled to the rights"
connote a state of affairs involving the existence of a status or of
rights
under the law of the foreign
power[9].
- There
is evident force in the submission of the amicus that s 44(i) consists of
only two limbs: the verb "is" is used in s 44(i) only twice, and there is
a comma followed by the disjunctive "or" at the end of the first limb but not
within the second limb.
- For
present purposes, however, little turns upon this difference between the
analysis of Brennan J in Sykes v Cleary and that of the amicus;
indeed, Brennan J dealt with his "second and third categories"
together[10].
Each approach highlights the distinction expressly drawn in s 44(i) between
a voluntary act of allegiance on the part of the person concerned on the one
hand, and a state of affairs existing under
foreign law, being the status of
subjecthood or citizenship or the existence of the rights or privileges of
subjecthood or citizenship,
on the other. For the sake of clarity, these
reasons will use the two-limb classification adopted by the
amicus.
The purpose of s 44(i)
- In
Sykes v Cleary, the plurality, comprising Mason CJ, Toohey and
McHugh JJ, said that s 44(i) was adopted to ensure "that members of
Parliament did not have a split
allegiance"[11].
Brennan J explained that the purpose of s 44(i) "is to ensure that no
candidate, senator or member of the House of Representatives owes allegiance or
obedience to a foreign power
or adheres to a foreign
power."[12]
Deane J said that the "whole purpose" of s 44(i) is to "prevent
persons with foreign loyalties or obligations from being members of the
Australian
Parliament."[13]
- It
is evident that the first limb of s 44(i) pursues this purpose by looking
to the conduct of the person concerned. The second limb of s 44(i) does
not look to conduct manifesting an actual split in the allegiance of the person
concerned or the person's subjective feelings
of allegiance. On the contrary,
it operates to disqualify the candidate whether or not the candidate is, in
fact, minded to act
upon his or her duty of allegiance.
- In
the course of arguing that a candidate cannot be disqualified by the second limb
of s 44(i) if he or she does not know that he or she has the status of a
foreign citizen, Senior Counsel for Mr Joyce MP and
Senator Nash made
the rhetorical point that "[y]ou cannot heed a call that
you cannot hear and you will not hear the call of another citizenship if
you do
not know you are a citizen of that other country." The answer to that point is
that, as a matter of the ordinary meaning
of the second limb of s 44(i),
proof of actual allegiance as a state of mind is not required. Rather, as
Brennan J explained in Sykes v Cleary, the second limb is concerned
with the existence of a duty to a foreign power as an aspect of the status of
citizenship[14].
The drafting history of s 44(i)
- The
drafting history of s 44(i) does not support identification of a narrower
purpose sufficient to constrain the ordinary and natural meaning of the language
ultimately
chosen.
- The
first official draft of the Constitution Bill prepared for the National
Australasian Convention in 1891 contained two identical clauses which provided
respectively that the
place of a senator and a member of the House of
Representatives "shall become vacant ... [i]f he takes an oath or makes a
declaration
or acknowledgement of allegiance, obedience, or adherence to a
Foreign Power, or does any act whereby he becomes a subject or citizen,
or
entitled to the rights or privileges of a subject or citizen of a Foreign
Power"[15].
The language was derived from the British North America Act 1840
(Imp)[16] as
replicated in the New Zealand Constitution Act 1852
(Imp)[17] and
the British North America Act 1867
(Imp)[18] and
as substantially replicated in the constitutions of each of the Australian
colonies which were to become
States[19].
- Within
a week of the first official draft, following the voyage of the Lucinda,
the two clauses were recast to take the form in which the predecessors of ss
44(i) and 45(i) came to be adopted without substantial
debate in the final draft
of the Constitution Bill to emerge from the National Australasian Convention in
1891. The clauses as so recast each applied to both senators and members
of the
House of Representatives. Departing from the Imperial and colonial precedents,
they were no longer confined to vacating places
of parliamentarians by reference
to acts done by them after election. They extended also to disqualifying for
election as parliamentarians
persons who had done any of the same acts before
election.
- The
first clause, the predecessor of s 44(i),
provided[20]:
"Any person ... [w]ho has taken an oath or made a declaration or acknowledgment
of allegiance, obedience, or adherence to a Foreign
Power, or has done any act
whereby he has become a subject or 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 Member of the House of
Representatives until
the disability is removed by a grant of a discharge ... or
otherwise."
- The
second clause, the predecessor of s 45(i),
provided[21]:
"If a Senator or Member of the House of Representatives ... [t]akes an oath or
makes a declaration or acknowledgment of allegiance,
obedience, or adherence to
a Foreign Power, or does any act whereby he becomes a subject or citizen, or
entitled to the rights or
privileges of a subject or citizen, of a Foreign Power
... his place shall thereupon become vacant."
- The
clauses remained in substantially identical form in the successive drafts of the
Constitution Bill prepared for and considered and approved by the National
Australasian Convention at its Adelaide session in April
1897[22] and
again by the Australasian Federal Convention at its Sydney session in September
1897[23] when a
motion that the words "until parliament otherwise provides" be inserted at the
beginning of the predecessor of s 44 was
negatived[24].
- The
clauses were then recast to take their final form which became the text of ss
44(i) and 45(i) in the revised version of the Constitution Bill presented soon
after the beginning of the Melbourne session of the Australasian Federal
Convention in March
1898[25]. That
final recasting of the two clauses occurred as part of a large number of
amendments prepared by the Convention's drafting
committee in the period between
the Sydney session and the Melbourne session. Mr Barton, the chairman of the
committee, described
them as "drafting" amendments not intended to alter the
"sense" of the draft as approved by the Convention at the Sydney
session[26].
The drafting amendments were made after receipt by the drafting committee of
confidential memoranda from the Colonial Office commenting
on the Constitution
Bill in the form approved by the Convention at the Adelaide session. One of
those memoranda had raised as a query, in relation to
the clause which was the
predecessor of s 44(i), "[s]hould not some provision be made for a person
who, after he has acknowledged allegiance to a foreign power, has returned to
his old allegiance and made himself again a British
subject?"[27]
Whether or not it is appropriate to have regard to the confidential Colonial
Office memorandum, the extent of the redrafting of
the predecessors of both ss
44(i) and 45(i) which occurred in the period between the Sydney session and the
Melbourne session is such that it cannot adequately be explained
as doing no
more than responding to that query.
- When,
a few days later, the Australasian Federal Convention came to consider the
redrafted clauses in committee of the whole, the
redraft of the clause that was
to become s 44(i) was agreed to without
discussion[28].
Turning to s 45(i), Mr Isaacs relevantly commented only that "[v]ery good
work ha[d] been done by the committee in the attainment of
brevity"[29].
- The
drafting history demonstrates that the adoption of s 44(i) in its final form was
uncontroversial and that the differences between the text that emerged from the
Convention in 1891 and the
text that emerged from the Convention in 1898 cannot
be attributed to any articulated difference in the mischief sought to be
addressed
by the disqualification it introduced. What the drafting history
fails to demonstrate is that the mischief was exhaustively identified
in the
earlier reference to disqualification arising as a result of an "act" done by a
person whereby the person became a subject
or citizen, or entitled to the rights
or privileges of a subject or citizen, of a foreign power. The earlier
reference to an "act"
was obviously drawn from the Imperial and colonial
precedents. But the drafting history, beginning in 1891, cannot be treated as
indicative of an intention on the part of the framers to cleave particularly
closely to those precedents. The precedents were confined
to vacating the place
of a parliamentarian. Disqualification from being chosen as a parliamentarian
was an innovation.
- There
is another aspect of the historical context in which the Constitution was
drafted which affirmatively supports the wider purpose of s 44(i) which its
language suggests. The addition of disqualification under s 44(i) to
qualification under s 34 would, at the time of federation, have been redundant
unless disqualification under s 44(i) was capable of applying to a person
qualified under s 34. Section 34(ii) required, in 1901 and until the
Parliament otherwise provided, that a senator or member of the House of
Representatives "must be
a subject of the Queen". By operation of the
Naturalization Act 1870 (Imp), a subject of the Queen who by voluntary
act became a subject or citizen of a foreign state automatically ceased to be
a
subject of the Queen and was "from and after" that time to "be regarded as an
alien"[30]. A
person who by voluntary act had become a subject or citizen of a foreign state
was therefore not qualified under s 34(ii). For
the second limb of s 44(i)
to add anything to s 34(ii), that limb needed to extend beyond acquisition of
the status of a subject
or citizen of a foreign power by some voluntary
act.
Subject or citizen – the role of foreign law
- Whether
a person has the status of a subject or a citizen of a foreign power necessarily
depends upon the law of the foreign power.
That is so because it is only the
law of the foreign power that can be the source of the status of citizenship or
of the rights
and duties involved in that status. In Sykes v Cleary,
Mason CJ, Toohey and McHugh JJ said that "[a]t common law, the
question of whether a person is a citizen or national of a particular
foreign
State is determined according to the law of that foreign
State"[31], the
common law rule being, in part, a recognition of the principle of international
law that "it is for every sovereign State ...
to settle by its own legislation
the rules relating to the acquisition of its
nationality"[32].
Statements to similar effect were also made in Sykes v Cleary by Brennan,
Deane, Dawson and Gaudron JJ
respectively[33].
- In
Sue v Hill, Gleeson CJ, Gummow and Hayne JJ referred with
approval to the reasoning of Brennan and Gaudron JJ in Sykes v
Cleary[34]
in confirming the proposition that s 44(i) looks to the relevant foreign
law to determine whether a candidate is a foreign
citizen[35].
In Sue v Hill, Gaudron J also accepted the proposition that "the
question whether a person is a citizen of a foreign country is, as a general
rule,
answered by reference to the law of that
country."[36]
Thus, the majority of the Court in Sue v Hill adhered to the position
taken on this point in Sykes v Cleary.
- That
having been said, all members of the Court in Sykes v Cleary accepted
that s 44(i) does not contemplate that foreign law can be determinative of
the operation of
s 44(i)[37].
An Australian court will not apply s 44(i) to disqualify by reason of
foreign citizenship where to do so would be to undermine the
system of
representative and responsible government established under the Constitution.
- In
this regard, s 16 of the Constitution provides: "The qualifications of a
senator shall be the same as those of a member of the House of
Representatives."
- Section 34
provides:
"Until the Parliament otherwise provides, the
qualifications of a member of the House of Representatives shall be as
follows:
(i) he must be of the full age of twenty-one years, and must be an elector
entitled to vote at the election of members of the House
of Representatives, or
a person qualified to become such elector, and must have been for three years at
the least a resident within
the limits of the Commonwealth as existing at the
time when he is chosen;
(ii) he must be a subject of the Queen, either natural-born or for at least five
years naturalized under a law of the United Kingdom,
or of a Colony which has
become or becomes a State, or of the Commonwealth, or of a
State."
- Since
shortly after federation, Parliament has made provision for the qualification of
candidates. Currently, those requirements
are set out in s 163 of the
Commonwealth Electoral Act, pursuant to which an Australian citizen
enrolled to vote is qualified to stand for election.
- It
is the evident intention of the Constitution that those of the people of the
Commonwealth who are qualified to become senators or members of the House of
Representatives are
not, except perhaps in the case of a person "attainted of
treason" within the meaning of s 44(ii), to be irremediably disqualified.
They have the entitlement to participate in the representative government which
the Constitution establishes. In oral argument this was described as the
constitutional imperative. The purpose of s 44(i) neither requires nor
allows the denial by foreign law of that entitlement.
- Consistently
with that view, the Court in Sykes v Cleary recognised that an Australian
citizen who is also a citizen of a foreign power will not be prevented from
participating in the representative
form of government ordained by the
Constitution by reason of a foreign law which would render an Australian citizen
irremediably incapable of being elected to either house of the
Commonwealth
Parliament[38].
In this regard, Mason CJ, Toohey and McHugh JJ
said[39]:
"It
would be wrong to interpret the constitutional provision in such a way as to
disbar an Australian citizen who had taken all reasonable
steps to divest
himself or herself of any conflicting allegiance ... [Section 44(i)] ...
could scarcely have been intended to disqualify
an Australian citizen for
election to Parliament on account of his or her continuing to possess a foreign
nationality, notwithstanding
that he or she had taken reasonable steps to
renounce that nationality."
- It
is convenient to note here that their Honours were not suggesting that a
candidate who could be said to have made a reasonable
effort to comply with
s 44(i) was thereby exempt from compliance. As Brennan J
explained[40]:
"It
is not sufficient ... for a person holding dual citizenship to make a unilateral
declaration renouncing foreign citizenship when
some further step can reasonably
be taken which will be effective under the relevant foreign law to release that
person from the
duty of allegiance or obedience. So long as that duty remains
under the foreign law, its enforcement – perhaps extending to
foreign
military service – is a threatened impediment to the giving of unqualified
allegiance to Australia. It is only after
all reasonable steps have been taken
under the relevant foreign law to renounce the status, rights and privileges
carrying the duty
of allegiance or obedience and to obtain a release from that
duty that it is possible to say that the purpose of s 44(i) would not be
fulfilled by recognition of the foreign law."
- The
focus of concern of the majority in Sykes v Cleary is upon the impediment
posed by foreign law to an Australian citizen securing a release from foreign
citizenship notwithstanding reasonable
steps on his or her part to sever the
foreign attachment. As Dawson J
said[41]:
"I
agree with Mason CJ, Toohey and McHugh JJ, and with Brennan J,
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 the Commonwealth Parliament."
Knowledge of foreign citizenship as an element of s 44(i)
- Section 44(i)
does not say that it operates only if the candidate knows of the disqualifying
circumstance. It is a substantial departure from
the ordinary and natural
meaning of the text of the second limb to understand it as commencing:
"Any person who:
(i) ... knows that he or she is a subject or a citizen
..."
- Further,
to accept that proof of knowledge of the foreign citizenship is a condition of
the disqualifying effect of s 44(i) would be inimical to the stability of
representative government. Stability requires certainty as to whether, as from
the date of
nomination, a candidate for election is indeed capable of being
chosen to serve, and of serving, in the Commonwealth
Parliament[42].
This consideration weighs against an interpretation of s 44(i) which would
alter the effect of the ordinary and natural meaning of its text by introducing
the need for an investigation into the
state of mind of a candidate.
- The
approach urged on behalf of the Attorney-General echoes that of Deane J in
Sykes v Cleary. Deane J considered that while only the first limb
of s 44(i) expressly requires some form of voluntary manifestation of
allegiance, the balance of s 44(i) should also be understood as
incorporating a mental element so that the provision in its entirety applies
"only to cases where the
relevant status, rights or privileges have been sought,
accepted, asserted or acquiesced in by the person
concerned."[43]
- It
had been submitted for Mr Kardamitsis, the third respondent in Sykes v
Cleary, that "only a person who is presently subject to a continuing
allegiance to a foreign power brought about by some voluntary act, or
one whose
real and effective nationality is foreign, would be
disqualified."[44]
Deane J accepted the argument that a "qualifying element ... must be read
into the second limb of
s 44(i)"[45].
His Honour referred to the qualifying element in relation to a naturalised
Australian
citizen[46]:
"whose origins lay in, or who has had some past association with,
some foreign country which asserts an entitlement to refuse to allow
or
recognize his or her genuine and unconditional renunciation of past allegiance
or citizenship. Accordingly ... the qualifying
element which must be read into
the second limb of s 44(i) extends not only to the acquisition of the
disqualifying relationship by a person who is already an Australian citizen but
also to
the retention of that relationship by a person who has subsequently
become an Australian citizen. A person who becomes an Australian
citizen will
not be within the second limb of s 44(i) if he or she has done all that can
reasonably be expected of him or her to extinguish any former relationship with
a foreign country
to the extent that it involves the status, rights or
privileges referred to in the sub-section."
- Deane J
concluded that Mr Kardamitsis, who had publicly renounced his allegiance to
any country other than Australia, had "done all
that he could reasonably be
expected to do for the purposes of the Constitution and laws of this country to
renounce and extinguish his Greek nationality and any rights or privileges
flowing from
it."[47]
- The
approach taken by Deane J draws no support from the text and structure of
s 44(i): indeed, Deane J used the first limb of the provision to
alter the ordinary and natural meaning of the second. Not only does that
approach alter the plain meaning of the second limb of s 44(i), it renders
that limb otiose because, so understood, it adds nothing to the first limb in
terms of the practical pursuit of the purpose
of s 44(i).
- In
addition, the approach of Deane J places naturalised Australian citizens in
a position of disadvantage relative to natural-born
Australian citizens. A
majority in Sykes v Cleary did not countenance such a distinction.
Mason CJ, Toohey and McHugh JJ expressly adverted to the circumstance
that "s 44(i) finds its place in a Constitution which was enacted at a
time, like the present, when a high proportion of Australians, though born
overseas, had adopted this country
as their home" without drawing any
distinction between them in terms of the application of
s 44(i)[48].
And neither Brennan J nor Dawson J was disposed to draw any
distinction between natural-born Australian citizens and naturalised
Australian
citizens for the purposes of the application of s 44(i). In this,
their Honours were, with respect, clearly correct. The text of s 34
of the Constitution draws a distinction between natural-born and naturalised
Australians for the purpose of qualifying to be a candidate for election;
in
contrast, s 44(i) draws no distinction between foreign citizenship by place
of birth, by descent or by naturalisation. The absence from the text of
s 44(i) of any such distinction cannot be attributed to inadvertence on the
part of the framers, both because the concept of citizenship
by descent was
commonplace at the time of federation, and because of the express provision in
s 34[49].
- It
was submitted on behalf of Mr Windsor that the operation of the
constitutional guarantee of single-minded loyalty provided by
s 44(i)
should not be made to depend upon the diligence which a candidate brings to the
observance of the provision. There is force in this
submission. To introduce
an issue as to the extent of the knowledge obtained by a candidate and the
extent of the candidate's efforts
in that regard is to open up conceptual and
practical uncertainties in the application of the provision. These
uncertainties are
apt to undermine stable representative government.
- At
the conceptual level, questions would necessarily arise as to the nature and
extent of the knowledge that is necessary before
a candidate, or a sitting
member for the purposes of s 45(i), will be held to have failed to take
reasonable steps to free himself or herself of foreign citizenship. In this
regard, the state
of a person's knowledge can be conceived of as a spectrum that
ranges from the faintest inkling through to other states of mind such
as
suspicion, reasonable belief and moral certainty to absolute
certainty[50].
If one seeks to determine the point on this spectrum at which knowledge is
sufficient for the purposes of ss 44(i) and 45(i), one finds that those
provisions offer no guidance in fixing this point. That is hardly surprising
given that these provisions
do not mention the knowledge of a person or the
person's ability to obtain knowledge as a criterion of their operation.
- The
conceptual difficulty may be illustrated by considering the following questions.
Does a candidate who has been given advice that
he or she is "probably" a
foreign citizen know that he or she is a foreign citizen for the purposes of
s 44(i)? Is the position different if the effect of the advice is that
there is "a real and substantial prospect" that the candidate is a
foreign
citizen? Does a candidate in possession of two conflicting advices on the
question know that he or she is a foreign citizen
for the purposes of
s 44(i) only when the advice that he or she is indeed a foreign citizen is
accepted as correct by a court?
- It
may be said that the variation on the principal submission of the
Attorney-General, with its focus on voluntary acts, has the
virtues of eschewing
a distinction in principle between natural-born and naturalised Australians and
of avoiding the conceptual difficulties
associated with interrogating a
candidate's knowledge or state of mind. But ultimately the variation in the
Attorney-General's approach
depends upon the unstable distinction between overt
voluntary acts and conscious omissions. The application of the natural and
ordinary
meaning of s 44(i) serves to avoid the difficulties which attend
this unstable distinction.
- The
practical problems involved in applying the standard for which
Mr Joyce MP and Senator Nash argue would include the difficulties
of proving or disproving a person's state of mind. Not the least of these
difficulties would be the regrettable possibility of a
want of candour on the
part of a candidate or sitting member whose interests are vitally engaged. And
during the fact-finding process
the entitlement of the member to continue to sit
in Parliament would be under a cloud.
- In
addition, on the approach urged on behalf of Mr Joyce MP and
Senator Nash, a person who has been elected to Parliament and then
discovers that he or she is a foreign citizen is to be allowed a period in which
to take reasonable steps to renounce that citizenship
before the disqualifying
effect of s 44(i) or s 45(i) bites. During that period the person
will have, and may well be seen to have, dual citizenship. That state of
affairs cannot be
reconciled with the purpose of these constitutional
guarantees.
- Finally,
while it may be said that it is harsh to apply s 44(i) to disqualify a
candidate born in Australia who has never had occasion to consider himself or
herself as other than an Australian
citizen and exclusively an Australian
citizen, nomination for election is manifestly an occasion for serious
reflection on this question;
the nomination form for candidates for both the
Senate and the House of Representatives requires candidates to declare that they
are not rendered ineligible by s 44. It is necessary to bear in mind that
the reference by a house of Parliament of a question of disqualification can
arise only where
the facts which establish the disqualification have been
brought forward in Parliament. In the nature of things, those facts must
always
have been knowable. A candidate need show no greater diligence in relation to
the timely discovery of those facts than the
person who has successfully, albeit
belatedly, brought them to the attention of the
Parliament.
Reasonable steps
- Section 44(i)
is not concerned with whether the candidate has been negligent in failing to
comply with its requirements. Section 44(i) does not disqualify only those
who have not made reasonable efforts to conform to its requirements.
Section 44(i) is cast in peremptory terms. Where the personal
circumstances of a would-be candidate give rise to disqualification under
s 44(i), the reasonableness of steps taken by way of inquiry to ascertain
whether those circumstances exist is immaterial to the operation
of
s 44(i).
- The
reasons of the majority in Sykes v Cleary do not support the proposition
that a person who is a foreign citizen contravenes the second limb of
s 44(i) only if that person actually knows that he or she is a foreign
citizen and fails to take reasonable steps available to him or her
to divest
himself or herself of that status under the foreign law. Nor do the reasons of
the majority in Sykes v Cleary support the view that a person who is a
foreign citizen is not disqualified if, not knowing of that status, he or she
fails to take
steps to divest himself or herself of that status.
- Particular
reference may be made here to the decision in Sykes v Cleary in relation
to the second and third respondents, Mr Delacretaz and Mr Kardamitsis,
respectively. Mr Delacretaz, who had been born
in Switzerland and was a
Swiss citizen from that time, had lived in Australia for more than 40 years
before the date for nomination
for election to the House of Representatives, and
was naturalised as an Australian citizen nearly 32 years before that date.
When
he was naturalised he renounced all allegiance to any sovereign or state of
whom or of which he was a subject or
citizen[51].
Mr Kardamitsis had been born in Greece and from the time of his birth was a
Greek citizen. He had lived in Australia for more
than 20 years before the
date of nomination and he was naturalised more than 17 years before that
date. At his naturalisation, he
likewise renounced all other
allegiance[52].
- A
majority (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) held that
Mr Delacretaz was disqualified by s 44(i) because, as the plurality
said, he[53]:
"omitted to make a demand for release from Swiss citizenship which
would have been granted automatically as he has no residence in
Switzerland and
has been an Australian citizen for thirty-two years. Because he has failed
to make such a demand, it cannot be said
that he has taken reasonable steps to
divest himself of Swiss citizenship and the rights and privileges of such a
citizen."
- The
plurality said that Mr Kardamitsis was disqualified by s 44(i)
because[54]:
"in the absence of an application for the exercise of the
discretion [of the Greek Minister] in favour of releasing [him] from his
Greek
citizenship, it cannot be said that he has taken reasonable steps to divest
himself of Greek citizenship and the rights and
privileges of such a
citizen."
- Deane
and Gaudron JJ, in separate judgments, would have held that the
renunciation of any foreign allegiance at the naturalisation
ceremonies of
Mr Delacretaz and Mr Kardamitsis was sufficient to take each of them
out of the disqualification in
s 44(i)[55].
It is evident that this view did not commend itself to the other five Justices,
who proceeded on the basis that a unilateral renunciation
was not sufficient to
terminate the status of citizenship under the foreign law.
- No
member of the majority in Sykes v Cleary said that a candidate who
does not know that he or she is a citizen of a foreign country can be said to
take reasonable steps to renounce
that citizenship by doing nothing at all in
that regard. It is true that Dawson J said that what is reasonable will
"depend upon
such matters as the requirements of the foreign law for the
renunciation of the foreign nationality, the person's knowledge of his
foreign
nationality and the circumstances in which the foreign nationality was accorded
to that
person."[56]
His Honour may be taken, consistently with the views expressed by the plurality
and by Brennan J, with whom he agreed, to have had
in mind cases where not
only the tenacity but also the inaccessibility of the foreign law was apt
practically to prevent an Australian
citizen from exercising the choice to
participate in the system of representative government established by the
Constitution. It may be that not all foreign states afford their citizens the
levels of assistance in relation to the ascertainment and renunciation
of their
citizenship that is available from states such as most members of the
Commonwealth of Nations. Some foreign states may
be unwilling or unable to
provide necessary information in relation to the ascertainment and means of
renunciation of their citizenship.
- The
plurality in Sykes v Cleary said that the steps reasonably available to a
candidate to free himself or herself from the ties of foreign citizenship depend
on
"the situation of the individual, the requirements of the foreign law and the
extent of the connexion between the individual and
the foreign
State"[57].
The circumstance that Mr Kardamitsis had participated in a naturalisation
ceremony in which he had expressly renounced his foreign
allegiance was not
sufficient to justify the conclusion that he had taken reasonable steps to
divest himself of his foreign citizenship
because under the foreign law he could
have applied for the favourable exercise of a discretion by the appropriate
Minister of the
Greek government to release him from his citizenship. The
application for the favourable exercise of the discretion was a step reasonably
open to him.
- Such
a step may be contrasted, for example, with a requirement of foreign law that
the citizens of the foreign country may renounce
their citizenship only by acts
of renunciation carried out in the territory of the foreign power. Such a
requirement could be ignored
by an Australian citizen if his or her presence
within that territory could involve risks to person or property. It is not
necessary
to multiply examples of requirements of foreign law that will not
impede the effective choice by an Australian citizen to seek election
to the
Commonwealth Parliament. It is sufficient to say that in none of the references
with which the Court is concerned were candidates
confronted by such obstacles
to freeing themselves of their foreign ties.
Summary as to the
proper construction of s 44(i)
- The
approaches to the construction of s 44(i) urged on behalf of the
Attorney-General, Mr Joyce MP and Senator Nash, and
Mr Ludlam and Ms Waters are rejected.
- Section 44(i)
operates to render "incapable of being chosen or of sitting" persons who have
the status of subject or citizen of a foreign power.
Whether a person has the
status of foreign subject or citizen is determined by the law of the foreign
power in question. Proof
of a candidate's knowledge of his or her foreign
citizenship status (or of facts that might put a candidate on inquiry as to the
possibility that he or she is a foreign citizen) is not necessary to bring about
the disqualifying operation of s 44(i).
- A
person who, at the time that he or she nominates for election, retains the
status of subject or citizen of a foreign power will
be disqualified by reason
of s 44(i), except where the operation of the foreign law is contrary to
the constitutional imperative that an Australian citizen not be irremediably
prevented by foreign law from participation in representative government. Where
it can be demonstrated that the person has taken
all steps that are reasonably
required by the foreign law to renounce his or her citizenship and within his or
her power, the constitutional
imperative is engaged.
- We
turn now to consider the application of s 44(i) to the facts of each
reference.
Senator the Hon Matthew Canavan
- Senator Canavan
nominated for election as a senator at the general election for the Parliament
held on 2 July 2016. At the time,
Senator Canavan believed that he
was a citizen of Australia and of no other country. Senator Canavan was
returned on 5 August 2016
as an elected senator for Queensland. In issue
is whether at the date of his nomination Senator Canavan was a citizen of
Italy by
descent.
- Senator Canavan
was born in Southport, Queensland in 1980. His father was born in Toowoomba,
Queensland. His mother, Maria Canavan,
was born in Ayr, Queensland in
October 1955. Senator Canavan's only link to Italy is through his maternal
grandparents, Gaetano
and Rosalia Zanella, both of whom were born in Lozzo
di Cadore, Belluno, Italy. In 1951 Gaetano and Rosalia Zanella
migrated to
Australia and each later became an Australian citizen: Gaetano was
naturalised in September 1955 and Rosalia was naturalised in
September 1959. By
becoming Australian citizens, and by making Australia their place of residence,
under Italian law Gaetano and
Rosalia Zanella ceased to be Italian
citizens. When Senator Canavan was born, his parents and grandparents were
Australian citizens
and only Australian citizens.
- Senator Canavan
has never visited Italy and has never taken any steps to acquire Italian
citizenship.
- Before
2006, it had not occurred to Senator Canavan that he or his siblings might
be Italian citizens. Sometime during that year,
his mother told him that he was
eligible to apply for Italian citizenship and she gave him some documents to
complete if he wished
to pursue the matter. Senator Canavan did not wish
to become an Italian citizen and he did not complete the documents. He was
aware
that his brother had taken steps to become an Italian citizen and to
acquire an Italian passport.
- On
18 July 2017, Senator Canavan's mother told him that he may have been
registered as an Italian citizen as a result of steps that
she had taken to
become an Italian citizen. The following day Senator Canavan set in train
inquiries to determine his citizenship
status under Italian law. On
24 July 2017, he was informed by an Italian consular official that he had
been registered as an Italian
citizen in 2006. The following day
Senator Canavan received written confirmation from the Italian Embassy that
his name was registered
with the Italian Consulate in Brisbane, that the
registration had been "requested by your mother for yourself and for your
brother
and sister as well" and that his name also appeared in the list of
Italians eligible to vote abroad. Senator Canavan was informed
that the
registration had been received by the Municipality of Lozzo di Cadore on
18 January 2007. A copy of the request was attached
to the letter. It is
contained in a pro forma document described as "Form for Registration in
Register of Italians Resident Abroad
– A.I.R.E.". The form provided for
the inclusion of information about adult children residing with the registrant.
In this
section the names and personal details of Senator Canavan's younger
sister and brother were set out. In a further section headed
"information about
married children or who do not reside with you" Senator Canavan's name and
personal details were set out. The
form was signed by Senator Canavan's
mother and dated 15 June 2006.
- On
31 July 2017, Senator Canavan wrote to the Italian Consulate in
Brisbane stating that he was seeking advice on his status and
that "[r]egardless
of the legitimacy of my Italian citizenship" he wished to renounce any
citizenship or registration he had with
the Italian government. On
7 August 2017, Senator Canavan attended the Italian Embassy in
Canberra and formally renounced any Italian
citizenship. The renunciation took
effect from 8 August 2017.
- The
evidence of Italian citizenship law is contained in the joint report of
Maurizio Delfino and Professor Beniamino Caravita di
Toritto
("the joint report"), both of whom are practising Italian lawyers. From the
joint report it emerges that Senator Canavan's
status, if any, as an
Italian citizen does not arise from any step taken by his mother in 2006 but
rather from the circumstance that
his maternal grandmother had not renounced her
Italian citizenship at the date of his mother's birth. At the time of
Senator Canavan's
mother's birth the fact that her mother was an Italian
citizen did not confer Italian citizenship on her. Under a law enacted in
1912
("the 1912 law") only the child of a father who was an Italian citizen became an
Italian citizen by birth. Senator Canavan's
mother was born in October
1955, a month after her father was naturalised as an Australian citizen. An
Italian citizen who acquired
the citizenship of a foreign country and who took
up residence in the foreign country automatically lost his or her Italian
citizenship.
At the time of her birth Senator Canavan's mother was an
Australian citizen and only an Australian citizen. When Senator Canavan
was born in 1980 he was an Australian citizen and only an Australian citizen.
- The
joint report explains that in 1983 the Italian Constitutional Court declared
provisions of the 1912 law unconstitutional to the
extent that they operated to
deny equal treatment to male and female Italians. From the date of the
Constitutional Court's decision
and with effect from the date the new Italian
Constitution came into force (1 January 1948), Italian citizenship passed
to a child either of whose parents was an Italian citizen. The effect
of the
decision was that Senator Canavan's mother became an Italian citizen by
birth and, on one view, Senator Canavan became an
Italian citizen
"retroactively" to the date of his birth.
- Senator Canavan's
mother's marriage to his father in 1979 did not affect any right of Italian
citizenship arising from the Constitutional
Court's decision. At the time,
Italian law provided that a female citizen lost her Italian citizenship on
marriage to a foreign
citizen provided the husband's citizenship was transmitted
to the wife. The provision did not apply to Senator Canavan's mother
because she was already an Australian citizen when she married an Australian
husband. Italian citizenship is currently governed
under a law enacted in 1992,
which provides that the child of a parent who is an Italian citizen is an
Italian citizen by birth.
- As
will appear, there is a question as to whether registration is merely
declaratory of the status of citizen or a condition of the
grant of the status
in the case of citizenship by descent. The authors of the joint report explain
that where a person files an
application with supporting documents with an
Italian Consulate for registration with A.I.R.E., the Consulate liaises with the
Italian
municipality in which the applicant's ancestor lived in order to
establish "a continuous chain of ancestry". The Consulate sends
the applicant's
birth certificate to the Italian municipality, which registers the applicant.
Registration as a citizen is described
as a "separate and more rigorous
process". The authors of the joint report conclude that Senator Canavan's
mother applied for registration
with A.I.R.E. in her own interest and that the
registration of Senator Canavan and his siblings occurred at the initiative
of the
Consulate in Brisbane.
- Registration
with A.I.R.E. is distinguished in the joint report from a request for the
declaration of Italian citizenship, which
is required to follow the steps set
out in a circular issued by the Italian Ministry of Foreign Affairs in 1991
("the circolare").
The authors of the joint report state that "[o]nly after the
request made by the individual for the recognition iure sanguinis of the
Italian citizenship has been ascertained to be well grounded, may the consulate
issue the relevant certificate of citizenship".
They observe that it is not
known if "the investigation and controls" referred to in the circolare have been
carried out. They
state that the A.I.R.E. certificate issued by the Mayor of
the Municipality of Lozzo di Cadore "should not per se be considered
a recognition of Italian citizenship": under the circolare only the interested
party, who must be of age, can apply
for citizenship.
- In
the concluding section of the joint report, the authors consider whether the
issue of a certificate of citizenship is merely declaratory.
They conclude that
the more reasonable interpretation of Italian law, in line with the adoption of
the "subjective conception of
citizenship" under the Italian Constitution, is
that the administrative steps described in the circolare (which are expressed to
apply to applicants for Italian citizenship
arising from events before the
commencement of the law of 1992) are matters of substance, amounting to a
prerequisite to the "potential"
citizenship right being activated.
- Senator Canavan
has not applied for a declaration of Italian citizenship. On the evidence
before the Court, one cannot be satisfied
that Senator Canavan was a
citizen of Italy. The concluding section of the joint report suggests that he
was not. Given the potential
for Italian citizenship by descent to extend
indefinitely – generation after generation – into the public life of
an
adopted home, one can readily accept that the reasonable view of Italian law
is that it requires the taking of the positive steps
referred to in the joint
report as conditions precedent to citizenship.
- For
these reasons, the first question, namely, whether, by reason of s 44(i) of
the Constitution, there is a vacancy in the representation of Queensland in the
Senate for the place for which Senator Canavan was returned, is answered
"no".
Mr Scott Ludlam
- Mr Ludlam
lodged his nomination as a candidate for election to the Senate for Western
Australia with the Australian Electoral Commission
on 18 May 2016. At the
time of his nomination, Mr Ludlam was unaware that he held any citizenship
other than Australian citizenship.
Mr Ludlam was returned on 2 August
2016 as an elected senator for Western Australia at the general election for the
Parliament held
on 2 July 2016.
- In
July 2017, Mr Ludlam's office was contacted by Mr John Cameron, who
stated that he had reason to believe that Mr Ludlam may be
a citizen of New
Zealand as well as of Australia. In consequence of this contact, Mr Ludlam
made inquiries for the first time as
to whether he was a dual citizen. His dual
citizenship was confirmed by the New Zealand High Commission on 10 July
2017. On 14
July 2017, Mr Ludlam wrote to the President of the Senate
resigning his position as a senator for Western Australia.
- Mr Ludlam
does not dispute that his citizenship of New Zealand, although unknown to him,
disqualified him from being chosen or sitting
as a senator. The circumstances
of his New Zealand citizenship can be briefly stated. Mr Ludlam was
born in Palmerston North, New
Zealand in January 1970. His parents left
New Zealand in 1973. In October 1978 the family arrived in Perth, Western
Australia.
Mr Ludlam, his brother and his parents were naturalised as
Australian citizens in April 1989. Mr Ludlam believed that upon his
naturalisation as an Australian citizen he was exclusively an Australian citizen
and that he held no other citizenship.
- The
evidence of New Zealand citizenship law is contained in the report of
Mr David Goddard QC, of the New Zealand bar. In summary,
at the date
of Mr Ludlam's birth, the British Nationality and New Zealand
Citizenship Act 1948 (NZ) ("the 1948 NZ Act") governed citizenship in
New Zealand. Subject to exceptions to which it is unnecessary to refer, the
1948 NZ Act provided that every person born in New Zealand after its
commencement shall be a citizen of New Zealand by birth. The
1948 NZ Act was
repealed by the Citizenship Act 1977 (NZ) ("the 1977 NZ Act"), which
remains in force today. Mr Ludlam's New Zealand citizenship under the 1948
NZ Act was preserved
by the 1977 NZ Act. Under the 1977 NZ Act a
New Zealand citizen may lose his or her citizenship by renouncing it or, in
limited
circumstances, by ministerial order. It is not in question that
Mr Ludlam had not lost his New Zealand citizenship at the date he
nominated
for election to the Senate.
- Mr Ludlam
was incapable of being chosen or sitting as a senator under s 44(i) of the
Constitution and so there is a vacancy in the representation of Western
Australia in the Senate for the place for which Mr Ludlam was returned.
Ms Larissa Waters
- Ms Waters
nominated with the Australian Electoral Commission for election as a senator for
Queensland on 9 June 2016. At the time,
Ms Waters believed that she
was solely an Australian citizen. Ms Waters was returned on 5 August
2016 as an elected senator for
Queensland at the general election for the
Parliament held on 2 July 2016.
- Ms Waters
was born in February 1977 in Winnipeg, Canada to Australian parents who were
living in Canada at the time for study and
work purposes. Neither was a
permanent resident of Canada. Ms Waters' birth was registered with the
Australian High Commission
in Ottawa in June 1977. It was not in doubt that
Ms Waters was an Australian citizen by descent. In January 1978, as an
infant
aged 11 months, Ms Waters left Canada with her parents, who
were returning to live in Australia.
- Ms Waters
has never held a Canadian passport. She has not visited Canada since leaving it
in January 1978. She has always considered
herself to be an Australian and has
never understood that she owes allegiance to any other country. She has not
sought or received
consular assistance or any other kind of government
assistance from Canada and she has not exercised any rights as a Canadian
citizen.
Her mother had given her to understand that she would be eligible to
apply for Canadian citizenship when she turned 21. On turning
21 in 1998,
Ms Waters considered applying for Canadian citizenship but she decided
against it.
- On
14 July 2017, following Mr Ludlam's resignation from the Senate,
Ms Waters' father raised with her a concern that her citizenship
status may
have been affected by her birth in Canada. Ms Waters sought advice from
the Clerk of the Senate and from the Canadian
authorities. In light of the
advice, Ms Waters concluded that she was a Canadian citizen. On
18 July 2017, Ms Waters wrote to the
President of the Senate resigning
from the Senate with immediate effect. On 27 July 2017, Ms Waters
applied to the High Commission
of Canada seeking to renounce her Canadian
citizenship. On 7 August 2017, Ms Waters received written
confirmation from the High
Commission of Canada that she had ceased to be a
Canadian citizen with effect from 5 August 2017.
- The
evidence of Canadian citizenship law is contained in the report of
Mr Lorne Waldman, a practising Canadian lawyer. In summary,
at the
time of Ms Waters' birth, Canadian citizenship was governed by the
Canadian Citizenship Act, RSC 1970, c C-19, which, relevantly,
provided that a person born after 31 December 1946 is a natural-born
Canadian citizen if the
person is born in Canada. Canadian-born children of
parents having certain diplomatic connections are excepted from the conferral
of
Canadian citizenship at birth. There is no suggestion that Ms Waters'
parents came within that exception. The Citizenship Act, SC
1974-75-76, c 108 came into force a week after Ms Waters' birth and
does not affect her status as a Canadian citizen. The registration
of
Ms Waters' birth with the Australian High
Commission[58]
did not affect her acquisition of Canadian citizenship. The sole basis on which
Ms Waters could lose her citizenship from the date
of her birth until June
2014 was by way of renunciation. For a closed period between June 2014 and June
2017 there were limited
circumstances in which the government of Canada was
empowered to revoke the citizenship of persons born in Canada. These provisions
have since been revoked with retroactive effect. Ms Waters maintained her
Canadian citizenship until her renunciation of it.
- Ms
Waters was incapable of being chosen or sitting as a senator under s 44(i)
of the Constitution, and so there is a vacancy in the representation of
Queensland in the Senate for the place for which Ms Waters was returned.
Senator Malcolm Roberts
- Senator Roberts
completed the nomination for election as a senator for Queensland on 3 June
2016. He stated that he was an Australian
citizen by naturalisation and that he
was not by virtue of s 44 of the Constitution incapable of being chosen as
a senator. Senator Roberts was returned on 5 August 2016 as an
elected senator for Queensland at the
general election for the Parliament held
on 2 July 2016. The Senate resolved to refer questions to this Court
concerning whether
there is a vacancy in the representation of Queensland for
the place for which Senator Roberts was returned following the submission
of documents to the Senate that suggested that Senator Roberts was a
citizen of the United Kingdom at the date of his nomination.
- The
reference gave rise to some disputed questions of fact. These were determined
by Keane J in reasons delivered on 22 September
2017[59].
His Honour summarised the uncontroversial evidence as follows.
Senator Roberts' father was born in Wales in 1923. His mother
was born in
Queensland in 1918. Around 1946, his father moved to India to work as the
manager of a coal mine. His father travelled
to Australia around 1954 where he
met and married Senator Roberts' mother. After an Australian passport was
issued to the mother
in September 1954, she and the father moved to
West Bengal. Senator Roberts was born in Disergarh, West Bengal,
India in May 1955
and his name was recorded in the High Commissioner's Record of
Citizens of the United Kingdom and Colonies. An entry was made around
June 1955
on his mother's passport by the Australian Trade Commissioner in Calcutta to
allow Senator Roberts, then a child, to travel
with his mother. The entry
stated that Senator Roberts "is the child of an Australian citizen but has
not acquired Australian citizenship".
The Roberts family moved to Australia
around 1962. In 1974, Senator Roberts, then a student at the University of
Queensland, applied
to become an Australian citizen and was naturalised as such
on 17 May 1974.
- Evidence
of British citizenship law was given by Mr Laurie Fransman QC, who was
called as a witness by the Attorney-General, and
by Mr Adrian Berry of
Counsel, who was called by Senator Roberts. Each of these barristers
practises in the United Kingdom specialising
in citizenship law. On the basis
of their evidence, Keane J found that Senator Roberts was a citizen of
the United Kingdom by descent
at the time of his nomination for election as a
senator[60].
By virtue of his father's nationality, Senator Roberts was born a "citizen
of the United Kingdom and Colonies", the principal form
of British nationality
in the period 1 January 1949 to 31 December 1982. On 1 January
1983, the British Nationality Act 1981 (UK) ("the BNA 1981") came into
force and Senator Roberts became a British citizen by descent.
- Keane J
found that Senator Roberts knew that he did not become an Australian
citizen until May 1974 and at the date of his nomination
for the Senate
Senator Roberts knew that there was at least a real and substantial
prospect that prior to May 1974 he had been and
that he remained thereafter a
citizen of the United
Kingdom[61].
Senator Roberts ceased to be a citizen of the United Kingdom on
5 December 2016, on the registration of his declaration of renunciation
of
citizenship.
- Senator Roberts
was incapable of being chosen or sitting as a senator under s 44(i) of the
Constitution, and so there is a vacancy in the representation of Queensland in
the Senate for the place for which Senator Roberts was returned.
The Hon Barnaby Joyce MP
- Mr Joyce
MP nominated for election to the House of Representatives as the member for the
electorate of New England on 2 June 2016.
His election as the member for
New England in the general election for the Parliament held on 2 July 2016
was declared on 15 July
2016. In issue is whether Mr Joyce MP was
incapable of being chosen as a member of the House of Representatives by reason
of being
a citizen of New Zealand.
- Mr Joyce
MP was born in April 1967 at Tamworth Base Hospital, Tamworth, New South Wales.
His father was born in Dunedin, New Zealand
in 1924. His mother was born in
Gundagai, New South Wales in 1930. Mr Joyce MP's father came to
Australia in 1947, and undertook
studies in veterinary science at the University
of Sydney. While at the University of Sydney, Mr Joyce MP's father met his
mother
and they were married in April 1956. Mr Joyce Snr was naturalised
as an Australian citizen in 1978. At that time, he also renounced
his New
Zealand citizenship. Mr Joyce MP has always known that his father was born
in New Zealand. He understood that his father
had become an Australian citizen
in 1978 and was solely an Australian citizen.
- Mr Joyce
MP grew up on a property outside Tamworth, New South Wales. He was educated at
schools in New South Wales and at the University
of New England, Armidale. He
was a member of the Australian Army Reserve between October 1996 and September
2001. He was elected
as a senator for Queensland in 2004. In 2013 he resigned
from the Senate and was elected to the House of Representatives as the
member
for the electorate of New England at the federal election held that year. When
Mr Joyce MP nominated for election to the
Senate in 2004, he completed
a form which referred to s 44(i) of the Constitution. His belief at that
time and at the time of nominating for election at the general election held on
2 July 2016 was that s 44(i) had no application to him because he was
a citizen of Australia only.
- In
late July 2017, Mr Joyce MP's office received inquiries from the media
asking if he was a dual citizen of Australia and New Zealand.
Mr Joyce MP
had not been aware of the possibility that he held dual citizenship before these
inquiries came to his attention. Mr
Joyce MP has never applied to become a
New Zealand citizen. He has not sought or accepted any privileges as a citizen
of New Zealand.
- On
10 August 2017, Mr Joyce MP met with the New Zealand High
Commissioner, who conveyed to him that in the eyes of the New Zealand
government
he was a citizen of New Zealand by descent. On 12 August 2017,
Mr Joyce MP received a memorandum of advice from Mr David
Goddard
QC, of the New Zealand bar, confirming that under New Zealand law
Mr Joyce MP was a citizen of New Zealand by descent. On
that day,
Mr Joyce MP attended the New Zealand High Commission and completed a
declaration of renunciation of New Zealand citizenship.
- Mr Goddard's
advice concerning New Zealand citizenship law as it applies to Mr Joyce MP
is part of the evidence on the reference.
So, too, is the opinion of
Mr Francis Cooke QC, also of the New Zealand bar, who was retained by
the solicitors acting for Mr Windsor.
Mr Goddard and Mr Cooke
are agreed with respect to Mr Joyce MP's status as a citizen of New Zealand
from birth until he renounced
his citizenship. In summary, the status of "New
Zealand citizen" was first provided under the 1948 NZ Act. Relevantly, persons
who were British subjects immediately before its commencement and who were born
in New Zealand became New Zealand citizens by birth
under the 1948 NZ Act.
Mr Joyce MP became a New Zealand citizen by descent by virtue of s 7
of the 1948 NZ Act, which provided that
a person born after its commencement is
a New Zealand citizen by descent if his father was a New Zealand citizen at the
time of his
birth. Mr Joyce MP's acquisition of New Zealand citizenship by
descent did not depend upon registration or other formality.
- Mr Joyce
Snr's renunciation of his New Zealand citizenship in 1978 operated with
prospective effect only and did not affect his son's
status as a New Zealand
citizen. That status could only be lost by renunciation or, in limited
circumstances, by ministerial order.
Mr Cooke's report describes the main
rights enjoyed by New Zealand citizens under New Zealand law, including to enter
and live in
New Zealand and to hold a New Zealand passport. He also notes that
New Zealand citizens living outside New Zealand are amenable
to certain of the
offences for which the Crimes Act 1961 (NZ) provides.
- At
the date of his nomination Mr Joyce MP was incapable of being chosen or
sitting as a member of the House of Representatives because
he was a citizen of
New Zealand; and so the place of the member for New England in the
House of Representatives is vacant.
Senator the Hon Fiona
Nash
- Senator Nash
nominated for election to the Senate on 1 June 2016. In completing the
nomination form, Senator Nash read the text
of s 44(i). At the time,
she believed that she was a citizen of Australia and of no other country.
Senator Nash was returned on
5 August 2016 as a senator for New South
Wales at the general election for the Parliament held on 2 July 2016.
- Senator Nash
was born in Sydney in May 1965. Her father, Raemond Morton, was born in
East Lothian, Scotland in 1927. Her mother,
Joy Hird, was born in Sydney,
New South Wales in January 1928. Her mother travelled to the United Kingdom to
work as a doctor when
she was aged in her twenties. She met Senator Nash's
father in London and the two were married in April 1956 in Essex, England.
Following the marriage, Senator Nash's older sisters were born in England.
Sometime between 1960 and 1962, Senator Nash's family
moved to Australia.
Her parents divorced in 1973 when she was eight years old. Thereafter
Senator Nash was raised by her mother
and had little contact with her
father until the later years of his life. As a child, Senator Nash was
aware that her father was
born in Scotland. She was also aware that her sisters
were British citizens, having been born in England.
- Senator Nash
was educated in New South Wales and following completion of her studies she
worked with her husband in a mixed farming
business in Crowther, New South
Wales. She was sworn in as a senator for New South Wales on 1 July 2005
and has served as a senator
since that time.
- On
14 August 2017, following Mr Joyce MP's statement to the House of
Representatives concerning his citizenship status, Senator Nash
sought
advice from the United Kingdom Home Office concerning her status. On
14 August 2017, Senator Nash was advised by an official
of the Home
Office of his view that she was a British citizen. On 17 August 2017,
Senator Nash received a copy of the opinion of
Mr Laurie
Fransman QC, that she was a British citizen. Before 14 August 2017
Senator Nash did not know that she was a British citizen.
It was her belief
that if she wished to become a British citizen she would have to apply to have
the status conferred on her. Senator
Nash has never visited the United
Kingdom, nor has she sought or received any privileges from the United Kingdom
by reason of her
citizenship. On 18 August 2017, Senator Nash
completed a declaration renouncing her British citizenship. On 21 August
2017, Senator
Nash received confirmation from the Home Office that she is
no longer a British citizen.
- Mr Fransman's
advice concerning the law governing British citizenship in its application to
Senator Nash forms part of the evidence
on the reference. In summary,
before 1949, the primary form of British nationality was British subject status.
Under the British Nationality and Status of Aliens Act
1914 (UK)[62],
any person born within the King's dominions and allegiance was deemed to be a
natural-born British subject. Following the unification
of England and
Scotland, Scotland formed part of the Crown's dominions and, generally, birth
within the Crown's dominions entailed
allegiance to the Crown.
Senator Nash's father was born within the Crown's dominions and allegiance
and was a natural-born British
subject. The British Nationality Act 1948
(UK)[63] ("the
BNA 1948") made the primary form of British nationality "citizenship of the
United Kingdom and Colonies". On its commencement,
Senator Nash's father
was reclassified as a citizen of the United Kingdom and colonies. The BNA 1948
distinguished between citizens
of the United Kingdom and colonies by descent and
otherwise than by descent. Senator Nash's father was a citizen of the
United Kingdom
and colonies otherwise than by descent. His nationality was
unaffected by his marriage to an Australian or his migration to Australia.
- On
1 January 1973, on the commencement of the Immigration Act 1971 (UK)
("the IA 1971"), Senator Nash's father, having been a citizen of the United
Kingdom and colonies otherwise than by descent,
acquired a new status called
"patriality", otherwise known as the right of abode in the United
Kingdom[64].
On 1 January 1983, on the commencement of the BNA 1981, the primary form of
British nationality became "British citizenship".
At that moment,
Senator Nash's father became a British citizen otherwise than by
descent[65].
- As
a person who was born a legitimate child outside the United Kingdom and colonies
to a father who was a citizen of the United Kingdom
and colonies otherwise than
by descent, Senator Nash became a citizen of the United Kingdom and
colonies by descent at
birth[66]. On
1 January 1973, on the commencement of the IA 1971, Senator Nash
acquired the right of abode in the United
Kingdom[67].
On 1 January 1983, on the commencement of the BNA 1981, Senator Nash
became a British
citizen[68].
- At
the date of her nomination as a senator for New South Wales, Senator Nash
remained a British citizen, having not renounced that
status and not having been
deprived of it. Senator Nash was incapable of being chosen or sitting as a
senator by reason of s 44(i) of the Constitution, and so there is a vacancy
in the representation of New South Wales in the Senate for the place for which
Senator Nash was returned.
Senator Nick Xenophon
- Senator Xenophon
was returned on 4 August 2016 as a senator for South Australia at the
general election for the Parliament held on
2 July 2016.
- Senator Xenophon
has always considered himself to be an Australian. He was born in January 1959
in Toorak Gardens, South Australia.
He has resided all his life in Australia
and has always been an Australian citizen. He was brought up in a household in
which he
describes his cultural heritage as Australian of Hellenic descent. He
spoke Greek and English at home. He was baptised in the Greek
Orthodox faith
and regularly attended the Greek Orthodox Church in Norwood, South Australia.
His father was born in Cyprus in July
1931. His father emigrated from Cyprus to
Australia in 1951 and was naturalised as an Australian citizen in July 1965.
Senator
Xenophon's mother was born in Greece in January 1928. She
emigrated to Australia in 1956 and was naturalised as an Australian citizen
in
September 1963. At the time of their naturalisation each of
Senator Xenophon's parents renounced allegiance to all other foreign
sovereigns.
- In
October 1997, Senator Xenophon was elected as a member of the Legislative
Council in South Australia. Prior to his first election
to the Australian
Senate in November 2007, Senator Xenophon considered it prudent, because of
his Hellenic background, to renounce
any entitlement that he might have to
citizenship of Greece or Cyprus. He wrote to the Greek Embassy and the High
Commission of
Cyprus, in each case renouncing any right of citizenship. It is
common ground that Senator Xenophon is not a citizen of either Greece
or
Cyprus.
- Senator Xenophon
was subsequently re-elected to the Australian Senate on 7 September 2013
and 2 July 2016. At no time prior to either
election did it cross his mind
that he might have some form of British citizenship arising from the fact that
Cyprus was a British
possession at the time of his father's birth. On
12 August 2017, one or more journalists made inquiries of
Senator Xenophon's office
as to whether Senator Xenophon was a British
citizen. As will appear, Senator Xenophon was a "British overseas citizen"
("BOC")
at the date of his nomination for election as a senator for South
Australia. On 25 August 2017, Senator Xenophon signed an application
to renounce his British overseas citizenship. On 31 August 2017, the
United Kingdom Home Office informed Senator Xenophon that he
ceased to be a
BOC on 30 August 2017.
- The
issue is whether as a BOC Senator Xenophon was incapable of being chosen as
a senator because he was "a subject or a citizen
of a foreign power" or a person
"entitled to the rights or privileges of a subject or a citizen of a foreign
power" for the purposes
of s 44(i) of the Constitution. The answer is that
Senator Xenophon was not disqualified under s 44(i). To explain why
that is so it is necessary to describe the incidents of British overseas
citizenship. These incidents, and the circumstances
in which
Senator Xenophon came to acquire the status of BOC under United Kingdom
law, are explained in a further report by Mr Laurie
Fransman QC.
- As
has been noted, before 1949, the principal form of British nationality was
British subject status, which generally was acquired
by virtue of a sufficiently
close connection with the Crown's dominions. In the period 1 January 1949
to 31 December 1982 under
the BNA 1948, the principal form of British
nationality was citizenship of the United Kingdom and colonies. Generally, this
status
was acquired by virtue of a sufficiently close connection with the United
Kingdom and the remaining British colonies. Citizens of
the United Kingdom and
colonies were not subject to United Kingdom immigration control at the start of
the period, although Mr Fransman
explains that some became subject to
immigration control from 1962. Under the IA 1971, which came into force on
1 January 1973,
only a citizen of the United Kingdom and colonies who had
the right of abode in the United Kingdom could continue to enter the United
Kingdom freely.
- From
1 January 1983 to date, British nationality law has been principally
governed by the BNA 1981, which created three forms of
citizenship: British
citizenship; British dependent territories citizenship (later renamed British
overseas territories citizenship);
and British overseas citizenship. All
persons who were citizens of the United Kingdom and colonies were reclassified
on the commencement
of the BNA 1981 within one of the three categories.
Generally, those reclassified as British citizens were persons who immediately
prior to the commencement of the BNA 1981 were citizens of the United Kingdom
and colonies with the right of abode in the United
Kingdom. Citizens of the
United Kingdom and colonies without the right of abode became British dependent
territories citizens if
their citizenship was derived from connection with a
place which remained a British dependent territory. Remaining citizens of the
United Kingdom and colonies without the right of abode were automatically
reclassified as BOCs. BOCs were persons who prior to the
BNA 1981 were citizens
of the United Kingdom and colonies by virtue of a connection with a place that
had been a British colony but
which had attained independence.
- The
island of Cyprus was annexed by Britain in 1914 and remained a British
possession in 1931 when Senator Xenophon's father was
born.
Senator Xenophon's father was born within the King's dominions and
allegiance and was deemed to be a natural-born British
subject[69].
On commencement of the BNA 1948, Senator Xenophon's father was immediately
reclassified as a citizen of the United Kingdom and
colonies otherwise than by
descent[70].
The father's status as a citizen of the United Kingdom and colonies without the
right of abode was unaffected by his naturalisation
as an Australian citizen.
- Arrangements
with respect to nationality were agreed within the framework of the Treaty
Concerning the Establishment of the Republic
of Cyprus entered on 16 August
1960. Annex D to the treaty, which sets out the arrangements, has the
force of law in the United
Kingdom by virtue of its inclusion as a Schedule to
the British Nationality (Cyprus) Order
1960[71].
Applying the provisions of this Order to Senator Xenophon's father,
Mr Fransman advises that the father did not cease to be a citizen
of the
United Kingdom and colonies otherwise than by descent when Cyprus became
independent because he was not ordinarily resident
in Cyprus in the five years
prior to 16 August 1960. Senator Xenophon's father did not have the right
of abode in the United Kingdom
under the IA 1971 or at any time before 1983,
when British nationality law was again revised. On the commencement of the BNA
1981,
Senator Xenophon's father was automatically reclassified as a BOC.
- At
the time of Senator Xenophon's birth in 1959, for the purposes of British
nationality law, Australia was an independent Commonwealth
country. Under the
BNA 1948, citizenship of the United Kingdom and colonies passed automatically to
the legitimate child of a father
who was a citizen of the United Kingdom and
colonies otherwise than by
descent[72].
Therefore, Senator Xenophon became a citizen of the United Kingdom and colonies
by descent at birth. Senator Xenophon did not
have the right of abode in
the United Kingdom under the IA 1971, when that Act came into force on
1 January 1973, and he did not
acquire that right after that date. On
1 January 1983, as a citizen of the United Kingdom and colonies without the
right of abode
in the United Kingdom and without a specified connection with a
territory which on that date remained a colony, Senator Xenophon
was
automatically reclassified as a BOC.
- Senator Xenophon
has not been issued with a BOC passport and has never received British consular
protection or other consular services.
- There
is no question that Senator Xenophon was a BOC at the date he nominated for
election as a senator for South Australia. While
under domestic law British
overseas citizenship is treated as a form of British nationality,
Mr Fransman explains that it is a residuary
form of nationality that
differs from British citizenship in important respects: importantly, a BOC does
not have the right of abode
in the United Kingdom. The right of abode includes
the right to enter and to reside in the country of nationality. As
Mr Fransman
observes, the right of abode is one of the main characteristics
of a national under international law.
- In
this regard, unlike a British citizen, a BOC may only enter the United Kingdom
by satisfying the requirements of immigration control.
It appears that in 2002
British citizenship was extended to include those BOCs who did not possess other
citizenship. The extension
did not apply to Senator Xenophon, who has at
all times possessed Australian citizenship. Senator Xenophon's status,
until he renounced
it, was that of a BOC having no right of abode in the United
Kingdom.
- A
further respect in which Mr Fransman states that the incidents, privileges
and obligations of a BOC differ from those of a British
citizen is in the nature
of the duty of loyalty: a person who is registered as a BOC is not required to
pledge loyalty to the United
Kingdom. This is by way of contrast with the
pledge that is required of a person who is registered as a British citizen.
Mr Fransman
considers that a BOC does not owe loyalty to the United Kingdom
per se but that he or she does owe loyalty or allegiance to Her Majesty
the Queen. He does not express a concluded view on whether the
allegiance is
owed to Her Majesty at large or to Her Majesty in right of the United
Kingdom, although he inclines to the latter view.
The position with respect to
Senator Xenophon is less clear in light of a change in practice.
Mr Fransman assumes that the duty
of loyalty of a person who became a BOC
by reclassification on 1 January 1983, as Senator Xenophon did, is the
same as the duty of
loyalty of a person who registered as a BOC under the BNA
1981. Mr Fransman considers that, while today an Australian citizen
registering
as a BOC would be required to take an oath to Her Majesty in
right of the United Kingdom, under previous practice this would not
have been
required because an Australian was already a citizen of a country of which the
Queen was Head of State. While the date
of the change in practice is not
stated, as at the date Senator Xenophon was reclassified it appears that
had he applied to be registered
as a BOC he would not have been required to take
an oath of allegiance to Her Majesty the Queen in right of the United
Kingdom.
In the event, Senator Xenophon has never applied to be registered
as a BOC, nor has he sworn any oath of loyalty or allegiance as
a BOC.
- To
observe that British overseas citizenship is a juridical relationship between
the individual and the United Kingdom, as Mr Fransman
describes it, is not
to conclude that it is a relationship which for the purposes of s 44(i) renders
the BOC a citizen of a foreign
power. No party contended that the fact that the
foreign power designates a status as that of "citizen" is determinative without
consideration of the rights, privileges and obligations conferred under the law
of the foreign power. The status of BOC distinctly
does not confer the rights
or privileges of a citizen as that term is generally understood: a BOC does not
have the right to enter
or reside in the United Kingdom. Critically, taking
into account the purpose of s 44(i), which is to ensure that members of the
Parliament do not have split allegiance, it does not appear that
Senator Xenophon's status as a BOC entailed any reciprocal obligation
of
allegiance to the United Kingdom per se or to Her Majesty the Queen
in right of the United Kingdom.
- For
the purposes of s 44(i), Senator Xenophon was not a subject or a
citizen of the United Kingdom at the date of his nomination
and election as a
senator. Nor was he entitled to the rights and privileges of a subject or
citizen of the United Kingdom. Accordingly,
there is no vacancy in the
representation of South Australia in the Senate for the place for which
Senator Xenophon was returned.
Filling the vacancies
- On
the proper construction of s 44(i), it operated to render
Senator Nash, Senator Roberts, Mr Ludlam, Ms Waters and
Mr Joyce MP
incapable of being chosen at the 2016 election.
- In
each of the references concerning Senators Nash and Roberts, and Ms Waters
and Mr Ludlam, the question arises as to the order
that should be made to
fill the resulting vacancy in the Senate.
- In
this regard, it was not suggested that the taking of a further poll was
necessary; and there is no reason to suppose that a special
count of the ballots
would "result in a distortion of the voters' real
intentions"[73]
rather than a reflection of "the true legal intent of the voters so far as it is
consistent with the Constitution and the [Commonwealth Electoral
Act]"[74].
Accordingly, in each of those cases, votes cast "above the line" in favour of
the party that nominated the candidate should be
counted in favour of the next
candidate on that party's list.
- In
the reference concerning Mr Joyce MP, it was common ground, and
consistent with
authority[75],
that in the event that Mr Joyce MP was incapable of being chosen as a
member of the House of Representatives, the election of Mr
Joyce MP
was void, and a by-election must be held in order to elect the member for New
England.
Conclusions
- In
the reference concerning Senator Canavan, the questions should be answered as
follows:
(a) There is no vacancy by reason of s 44(i) of the
Constitution in the representation of Queensland in the Senate for the place for
which Senator the Hon Matthew Canavan was returned.
(b) Does not arise.
(c) No further order is required.
(d) No further order is required.
- In
the reference concerning Mr Ludlam, the questions should be answered as
follows:
(a) There is a vacancy by reason of s 44(i) of the
Constitution in the representation of Western Australia in the Senate for the
place for which Mr Scott Ludlam was returned.
(b) The vacancy should be filled by a special count of the ballot papers.
Any directions necessary to give effect to the conduct
of the special count
should be made by a single Justice.
(c) Does not arise.
(d) Unnecessary to answer.
- In
the reference concerning Ms Waters, the questions should be answered as
follows:
(a) There is a vacancy by reason of s 44(i) of the
Constitution in the representation of Queensland in the Senate for the place for
which Ms Larissa Waters was returned.
(b) The vacancy should be filled by a special count of the ballot papers.
Any directions necessary to give effect to the conduct
of the special count
should be made by a single Justice.
(c) Does not arise.
(d) Unnecessary to answer.
- In
the reference concerning Senator Roberts, the questions should be answered as
follows:
(a) There is a vacancy by reason of s 44(i) of the
Constitution in the representation of Queensland in the Senate for the place for
which Senator Malcolm Roberts was returned.
(b) The vacancy should be filled by a special count of the ballot papers.
Any directions necessary to give effect to the conduct
of the special count
should be made by a single Justice.
(c) Unnecessary to answer.
(d) Unnecessary to answer.
- In
the reference concerning Mr Joyce MP, the questions should be answered
as follows:
(a) By reason of s 44(i) of the Constitution, the
place of the Member for New England, the Hon Barnaby Joyce MP, is
vacant.
(b) There should be a by-election for the election of the Member for New
England.
(c) Unnecessary to answer.
(d) Unnecessary to answer.
- In
the reference concerning Senator Nash, the questions should be answered as
follows:
(a) There is a vacancy by reason of s 44(i) of the
Constitution in the representation of New South Wales in the Senate for the
place for which Senator the Hon Fiona Nash was returned.
(b) The vacancy should be filled by a special count of the ballot papers.
Any directions necessary to give effect to the conduct
of the special count
should be made by a single Justice.
(c) Unnecessary to answer.
(d) Unnecessary to answer.
- In
the reference concerning Senator Xenophon, the questions should be answered as
follows:
(a) There is no vacancy by reason of s 44(i) of the
Constitution in the representation of South Australia in the Senate for the
place for which Senator Nick Xenophon was returned.
(b) Does not arise.
(c) No further order is required.
(d) No further order is required.
[1] Sykes v Cleary [1992] HCA 60; (1992) 176
CLR 77 at 100-101, 108, 130-131, 132; [1992] HCA 60.
[2] Commonwealth Electoral Act
1918 (Cth), s 376. See also In re Wood [1988] HCA 22; (1988) 167 CLR 145 at 157-162;
[1988] HCA 22.
[3] See Commonwealth Electoral Act
1918 (Cth), s 378.
[4] See Commonwealth Electoral Act
1918 (Cth), s 377.
[5] Re Roberts [2017] HCA 39.
[6] [1992] HCA 60; (1992) 176 CLR 77 at 127.
[7] [1992] HCA 60; (1992) 176 CLR 77 at 109-110.
[8] Nile v Wood [1988] HCA 30; (1987) 167 CLR
133 at 140; [1987] HCA 62.
[9] Cf Sykes v Cleary [1992] HCA 60; (1992)
176 CLR 77 at 107, 110, 131.
[10] [1992] HCA 60; (1992) 176 CLR 77 at 110.
[11] [1992] HCA 60; (1992) 176 CLR 77 at 107,
quoting Australia, Senate Standing Committee on Constitutional and Legal
Affairs, The Constitutional Qualifications of Members of Parliament,
(1981) at 10 [2.14].
[12] [1992] HCA 60; (1992) 176 CLR 77 at 109.
[13] [1992] HCA 60; (1992) 176 CLR 77 at 127.
[14] [1992] HCA 60; (1992) 176 CLR 77 at
109-110.
[15] Williams, The Australian
Constitution: A Documentary History, (2005) at 139, 141.
[16] 3 & 4 Vict c 35, s 7.
[17] 15 & 16 Vict c 72, ss 36,
50.
[18] 30 Vict c 3, s 31(2).
[19] Constitution Act 1854
(Tas) (18 Vict No 17), ss 13, 24; New South Wales Constitution Act 1855
(Imp) (18 & 19 Vict c 54), Sched 1, ss 5, 26; Victoria Constitution
Act 1855 (Imp) (18 & 19 Vict c 55), Sched 1, s 24; Constitution
Act 1855-6 (SA), ss 12, 25; Constitution Act 1867 (Q) (31 Vict
No 38), s 23; Western Australia Constitution Act 1890 (Imp) (53
& 54 Vict c 26), Sched 1, s 29(3).
[20] Official Report of the
National Australasian Convention Debates, (Sydney), 9 April 1891 at
950, cl 46.
[21] Official Report of the
National Australasian Convention Debates, (Sydney), 9 April 1891 at
950, cl 47.
[22] Official Report of the
National Australasian Convention Debates, (Adelaide), 15 April 1897 at
736, 23 April 1897 at 1211, 1218 and 1228.
[23] Official Record of the
Debates of the Australasian Federal Convention, (Sydney), 21 September 1897
at 1022; Williams, The Australian Constitution: A Documentary
History, (2005) at 765.
[24] Official Record of the
Debates of the Australasian Federal Convention, (Sydney), 21 September 1897
at 1014-1015.
[25] Williams, The Australian
Constitution: A Documentary History, (2005) at 849.
[26] Official Record of the
Debates of the Australasian Federal Convention, (Melbourne), 4 March 1898 at
1915.
[27] Williams, The Australian
Constitution: A Documentary History, (2005) at 727.
[28] Official Record of the
Debates of the Australasian Federal
Convention, (Melbourne), 7 March 1898 at
1931-1942.
[29] Official Record of the
Debates of the Australasian Federal
Convention, (Melbourne), 7 March 1898 at
1942.
[30] 33 Vict c 14, s 6.
[31] [1992] HCA 60; (1992) 176 CLR 77 at
105-106.
[32] Nottebohm Case
(Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4 at 20.
[33] [1992] HCA 60; (1992) 176 CLR 77 at 109-112,
127-128, 131, 135.
[34] [1992] HCA 60; (1992) 176 CLR 77 at 112-114,
135-136.
[35] [1999] HCA 30; (1999) 199 CLR 462 at 486-487
[47]; [1999] HCA 30.
[36] [1999] HCA 30; (1999) 199 CLR 462 at 529
[175].
[37] [1992] HCA 60; (1992) 176 CLR 77 at 107-108,
112-113, 126-127, 131-132, 137.
[38] [1992] HCA 60; (1992) 176 CLR 77 at 131.
[39] [1992] HCA 60; (1992) 176 CLR 77 at 107. See
also at 113.
[40] [1992] HCA 60; (1992) 176 CLR 77 at
113-114.
[41] [1992] HCA 60; (1992) 176 CLR 77 at 131.
[42] See Re Culleton (No 2)
[2017] HCA 4; (2017) 91 ALJR 311 at 321-322 [57]; 341 ALR 1 at 13; [2017] HCA 4; Re Day
(No 2) [2017] HCA 14; (2017) 91 ALJR 518 at 535 [97]; [2017] HCA 14; 343 ALR 181 at 201; [2017] HCA
14.
[43] [1992] HCA 60; (1992) 176 CLR 77 at 127.
[44] [1992] HCA 60; (1992) 176 CLR 77 at 89.
[45] [1992] HCA 60; (1992) 176 CLR 77 at
127-128.
[46] [1992] HCA 60; (1992) 176 CLR 77 at
127-128.
[47] [1992] HCA 60; (1992) 176 CLR 77 at 129.
[48] [1992] HCA 60; (1992) 176 CLR 77 at 107.
[49] See Singh v The Commonwealth
[2004] HCA 43; (2004) 222 CLR 322 at 340-341 [30], 359 [81], 392 [179], 413-414 [251];
[2004] HCA 43.
[50] Cf Baden v
Société Générale pour Favoriser le
Développement du Commerce et de l'Industrie en France
SA [1993] 1 WLR
509 at 575-576; [1992] 4 All ER 161 at 235.
[51] [1992] HCA 60; (1992) 176 CLR 77 at 83.
[52] [1992] HCA 60; (1992) 176 CLR 77 at 84.
[53] [1992] HCA 60; (1992) 176 CLR 77 at 108. See
also at 114, 132.
[54] [1992] HCA 60; (1992) 176 CLR 77 at 108. See
also at 114, 132.
[55] [1992] HCA 60; (1992) 176 CLR 77 at 128-130,
136-137, 139-140.
[56] [1992] HCA 60; (1992) 176 CLR 77 at 131.
[57] [1992] HCA 60; (1992) 176 CLR 77 at 108.
[58] See Australian Citizenship
Act 1948 (Cth), s 11 (as at 8 February 1977).
[59] Re Roberts [2017] HCA
39.
[60] Re Roberts [2017] HCA 39
at [73]- [74].
[61] Re Roberts [2017] HCA 39
at [116].
[62] 4 & 5 Geo 5 c 17.
[63] 11 & 12 Geo 6 c 56.
[64] Immigration Act 1971
(UK), s 2(1)(a).
[65] See British Nationality
Act 1981 (UK), s 14.
[66] British Nationality Act
1948 (UK), s 5(1).
[67] Immigration Act 1971
(UK), s 2(1)(b)(i).
[68] British Nationality Act
1981 (UK), s 11(1).
[69] British Nationality and
Status of Aliens Act 1914 (UK), s 1(1)(a).
[70] British Nationality Act
1948 (UK), s 12(1)(a).
[71] SI 1960/2215.
[72] British Nationality Act
1948 (UK), s 5(1).
[73] Sykes v Cleary [1992] HCA 60; (1992)
176 CLR 77 at 102. See also Free v Kelly [1996] HCA 42; (1996) 185 CLR 296 at 302-304;
[1996] HCA 42.
[74] In re Wood [1988] HCA 22; (1988) 167
CLR 145 at 166.
[75] Sykes v Cleary [1992] HCA 60; (1992)
176 CLR 77 at 102, 108, 130-131, 132; Free v Kelly [1996] HCA 42; (1996) 185 CLR 296 at
303-304. Cf In re Wood [1988] HCA 22; (1988) 167 CLR 145 at 165-166.
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