EDELMAN J. Section 44(i) of the Constitution renders a person incapable of being chosen or of sitting as a senator or a member of the House of Representatives if, among other grounds, the person "is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power". That sub-section contains no express provision for how to determine whether a person should be recognised as a subject or a citizen of a foreign power or as entitled to those rights or privileges. Nor does it contain any express constitutional constraint upon whether a recognised foreign law should apply for the purposes of s 44(i). There are, however, two constraints. The first constraint is that in some circumstances the foreign law will not be recognised. One manner of non-recognition can be from a rule of the common law, often reflecting international law. The second constraint is the constitutional implication that was described in Re Canavan as a "constitutional imperative". This reference is concerned only with the latter constraint but it is necessary in these reasons also to discuss the former because the two are not wholly independent.
At Federation, as now, the general common law and international law rule was that the nature of a right or status acquired under the law of another country was to be determined by the law by which that right or status was acquired. However, it was, and is, well recognised at common law and in international law that exceptions exist to this general recognition rule. One of those exceptions is that a foreign law will not be recognised if the foreign law is inconsistent with local policy or the maintenance of local political institutions. It has been said that "[i]t is difficult to conceive, upon what ground a claim can be rested, to give to any municipal laws an extraterritorial effect, when those laws are prejudicial to the rights of other nations, or to those of their subjects". Where this exception applies, "the judge will have to apply the domestic law more exclusively than [the general] principle allows, and must, on the other hand, leave the foreign law unapplied".
The general rule, and exceptions, have been applied to foreign laws concerning citizenship. In Sykes v Cleary, Brennan J effectively treated the question of recognition, ie the general rule and the exceptions, as an anterior question, to be asked before considering the application of s 44(i). His Honour said that whether a person was a subject or citizen of a foreign power was a question for the law of that foreign power, subject to exceptions recognised by international law as well as exceptions sourced in public policy derived from both common law and the Constitution. Similarly, in Sykes v Cleary and in Sue v Hill, Gaudron J relied upon common law authorities in the context of discussion of circumstances when an Australian court might not apply a foreign law.
Several examples of non-recognition of a foreign law as a result of this anterior question were given by Brennan J in Sykes v Cleary. One of those was described as "an extreme example, if a foreign power were mischievously to confer its nationality on members of the Parliament so as to disqualify them all". In cases of such exorbitant foreign laws both public policy and international law require that the foreign law not be recognised. The test for exorbitancy, as expressed by Brennan J, borrowing from Lord Cross of Chelsea in Oppenheimer v Cattermole, was "when the foreign law, purporting to affect nationality of persons who have had no connexion or only a very slender connexion with the foreign power, exceeds the jurisdiction recognized by international law".
It is unnecessary on this reference to consider whether, in addition to the exceptions discussed by Brennan J, there are, or should be, any further exceptions in international law or public policy sourced in common law or legislation. Although Senator Gallagher referred in oral submissions to the example of exorbitancy, and although at times she submitted that parts of the relevant foreign law - the British Nationality Act 1981 (UK) - should not be "recognised", her focus was not upon this usually anterior question. Instead, her submissions correctly assumed that none of the existing, limited exceptions applied to prevent recognition of the foreign law. She relied instead upon the implied constitutional qualification upon s 44(i) to prevent the foreign law, assuming it to be recognised, having any application.
The implied constitutional qualification was first discussed in Sykes v Cleary. In that case, the joint judgment of Mason CJ, Toohey and McHugh JJ and the separate judgment of Dawson J identified an implication, based on construction of s 44(i) in its context, that unqualified effect would not be given to the common law and international law rules that would otherwise require citizenship to be determined by the foreign state. Deane J, in dissent, also recognised a constitutional implication "which must be read into" s 44(i), although his Honour's broader implication did not command the support of a majority of the Court.
In Re Canavan, this constitutional implication was described as a "constitutional imperative". Like the "constitutional imperative" said to underlie the freedom to communicate on political matters or the freedom to vote, the rationale of the implication is to maintain the political institution of representative government. However, just as there are significant, valid limitations that can be placed upon the ability to participate in representative government despite these implied freedoms, so too the implication which maintains the political institution of representative government in the context of s 44(i) cannot displace or ignore all significant limitations or burdens imposed by a recognised foreign law.
Significant limitations that are placed upon a person's ability to participate in representative government by nomination for and election to the Commonwealth Parliament are recognised in the Constitution. The limitations include ss 16, 34, 43, 44 and 45, and any valid law enacted by the Commonwealth Parliament under s 51(xxxvi). These qualifications show that there is no absolute right for every citizen to participate in representative government by nomination for and election to the Commonwealth Parliament. The existence of these express limitations thus militates powerfully against an implication in absolute terms that denies application to any foreign law that has the effect of constraining the same participation. Instead, the constitutional implication is narrowly tailored to ensure that a foreign law does not stultify a person's qualified ability to participate. It requires only that "an Australian citizen not be irremediably prevented by foreign law from participation in representative government". In that way the concrete implication is confined to that which is truly necessary to achieve the more abstract constitutional purpose.
The reference in the rationale for the implication to an "irremediable" prevention of participation includes circumstances where the foreign law would make participation permanently impossible. Hence, on the perhaps contestable assumption that the foreign citizenship law would be recognised by Australian law, one potential application of this constitutional imperative would be to a foreign citizenship law that provides no legal mechanism for renunciation of foreign citizenship. Of course, although the constitutional imperative would mean that citizenship under such a foreign law would not disqualify a person under s 44(i), a person who would otherwise have been a citizen under that foreign law, and who wished to avoid disqualification under s 44(i), may still need to take steps to repudiate "any acknowledgment of allegiance, obedience, or adherence to a foreign power".
However, as Senator Gallagher correctly submitted, "irremediable" is not limited only to circumstances of permanent impossibility. The constitutional imperative also applies to a foreign citizenship law the "operation" - that is, the legal or practical effect - of which imposes unreasonable obstacles upon the ability of a person to renounce his or her foreign citizenship. Unreasonableness is a relative term. In Re Canavan, this Court gave a telling example of a law having this unreasonable practical effect. That example was a law requiring renunciation to be carried out in the territory of the foreign power, where the citizen's presence in that territory could involve risks to their person or property. The telling nature of this example lies in the unreasonableness required to engage the constitutional imperative.
Senator Gallagher submitted that any foreign citizenship law that required action or inaction by foreign officials as part of a process of renunciation imposed such an unreasonable obstacle in that respect, and therefore ought not to be given effect. It was submitted that otherwise the foreign law could introduce arbitrariness, including discriminatory outcomes and the difficulty of having recourse to the administrative and legal processes of a foreign country. Senator Gallagher also submitted that the actions of foreign officials could otherwise affect the ability of a person to participate in election campaigning during the short period of time between nominations and the return of the writs.
The relevant foreign law that was said to be the source of these unreasonable obstacles is s 12(2) of the British Nationality Act. Section 12 contains the statutory requirements governing renunciation of British citizenship. It provides:
"(1) If any British citizen of full age and capacity makes in the prescribed manner a declaration of renunciation of British citizenship, then, subject to subsections (3) and (4), the Secretary of State shall cause the declaration to be registered.
(2) On the registration of a declaration made in pursuance of this section the person who made it shall cease to be a British citizen.
(3) A declaration made by a person in pursuance of this section shall not be registered unless the Secretary of State is satisfied that the person who made it will after the registration have or acquire some citizenship or nationality other than British citizenship; and if that person does not have any such citizenship or nationality on the date of registration and does not acquire some such citizenship or nationality within six months from that date, he shall be, and be deemed to have remained, a British citizen notwithstanding the registration.
(4) The Secretary of State may withhold registration of any declaration made in pursuance of this section if it is made during any war in which Her Majesty may be engaged in right of Her Majesty's government in the United Kingdom.
(5) For the purposes of this section any person who has been married, or has formed a civil partnership, shall be deemed to be of full age."
Senator Gallagher submitted that s 12 should operate, but that the constitutional imperative meant that no operation should be given to s 12(2) because that sub-section involves the action of a foreign official.
That submission should not be accepted. Although the constitutional implication is not confined to foreign laws that make participation in representative government impossible, the further one departs from a situation of impossibility, and the broader the operation given to "unreasonable obstacles" to renunciation, the more vague and uncertain becomes the implication and the more unpredictable becomes its operation. In turn, this undermines the implication itself. Senator Gallagher's submission, if accepted, would even treat as an unreasonable obstacle to renunciation a law that had the potential to allow efficient renunciation for some and extremely efficient renunciation for others.
Although a foreign law should not be automatically excluded by the implication whenever any action of a foreign official is involved, some circumstances involving actions of foreign officials might still immediately engage the constitutional imperative. An example where this arguably might occur, to adapt from one given in oral submissions by the Attorney-General of the Commonwealth, is where the actions required for renunciation under the foreign law are: (i) submission of a form; (ii) payment of a fee; and (iii) certification by a foreign official that military service for the country has been served, in circumstances in which the country is, and has been, engaged in active combat with another state.
If the constitutional imperative were engaged in the example above, there would be a further issue. The further issue concerns the steps that a person must take to renounce if a foreign law imposes unreasonable requirements. On one view, akin to the approach that Senator Gallagher submitted should apply to s 12(2), the constitutional implication would require the person to take the reasonable steps (futile under foreign law) of submitting the form and paying the fee, in order to satisfy (i) and (ii), before renunciation were deemed to take effect. On another view, the requirement to take all reasonable steps to renounce applies only where all the required steps are reasonable. In other words, if the constitutional imperative were engaged in the above example the person would not be required to take the futile steps of submitting a form and paying a fee as part of a process that was not "effective under the relevant foreign law" and could never lead to renunciation. However, as I indicated above, the person would still be required by s 44(i) to demonstrate that he or she is not "under any acknowledgment of allegiance, obedience, or adherence" to the foreign power. It is not necessary to resolve that issue in this case.
Other circumstances involving the actions of foreign officials might engage the constitutional imperative in their practical effect. Again, although it is not necessary to express any concluded opinion, one example given in oral submissions was of a foreign law requiring renunciation to be processed by an official where, in its practical operation, such processing had not taken place after three years. Another might arguably be where a foreign official unreasonably refuses to exercise a discretion to allow renunciation when all steps had otherwise been taken.
Ultimately, perhaps the most fundamental difficulty for Senator Gallagher's submission that actions of foreign officials should be automatically excluded by the implication is that the submission shears the constitutional implication from its rationale of ensuring that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. The submission treats as an "unreasonable obstacle" falling within the implication any foreign law that does not irremediably prevent participation, but which might have an arbitrary or discriminatory effect. This would require a different implication, one which is lacking in any textual or structural constitutional foundation.
For these reasons, as well as generally those in the joint judgment, I would also answer the questions reserved as in the joint judgment.