Sykes v Cleary

Sykes v Cleary - [1992] HCA 60 - HCA 1992 case summary — Zoe

[10]

Our law is, of course, familiar with the concept of dual nationality and the English law which is to be applied in deciding whether or not Mr. Oppenheimer was a German national at the relevant time is not simply our municipal law but includes the rule which refers the question whether a man is a German national to the municipal law of Germany. Our law runs parallel with the law of England in this respect [43] . Nottebohm's Case, though it was invoked to avoid this conclusion, in truth confirms it. The International Court of Justice had to determine whether Guatemala was obliged by international law to recognize that Liechtenstein had conferred nationality on Nottebohm so as to entitle Liechtenstein to assert the right of diplomatic protection of Nottebohm by taking international judicial proceedings against Guatemala [44] . The Court acknowledged that nationality is to be settled for the purposes of each State by its own municipal law [45] . However, the Court was not determining an issue under municipal law. Liechtenstein's entitlement to exercise protection had to be determined by international law. In that context, the Court observed that international tribunals, when confronted with competing claims made under the respective municipal laws of two States - have given their preference to the real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person concerned and one of the States whose nationality is involved. Different factors are taken into consideration, and their importance will vary from one case to the next: the habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc. [46] The doctrine of "real and effective nationality" is a doctrine of international law, not municipal law, though it may be imported into municipal law when an issue in the municipal courts makes it necessary to choose between the competing claims of two other States asserting the nationality of an individual [46] . The opinion of the International Court in Nottebohm's Case accords with the provisions of the Convention on Certain Questions Relating to the Conflict of Nationality Laws [47] , which read relevantly as follows:

[14]

When the issue in an Australian court is simply whether an individual is a national of a foreign power, that issue is ordinarily determined by reference to the municipal law of the foreign power [48] . The general rule, however, is subject to qualifications, one of which is stated by Lord Cross in Oppenheimer v. Cattermole [49] : If a foreign country purported to confer the benefit of its protection on and to exact a duty of allegiance from persons who had no connexion or only a very slender connexion with it our courts would be entitled to pay no regard to such legislation on the ground that the country in question was acting beyond the bounds of any jurisdiction in matters of nationality which international law would recognize. In this respect I think that our law is the same as that of the United States as stated by the Circuit Court of Appeals, Second Circuit, in United States ex rel. Schwarzkopf v. Uhl [50] . That qualification has no application either to the second or to the third respondent. Each was born and grew up as a citizen of a foreign power before coming to live in Australia. Each, by the respective laws of those foreign powers, remains a citizen of that power. Each, by those respective laws, owes allegiance to a foreign power. True it is that each purported to renounce his citizenship of, and allegiance to, his native country when he became an Australian citizen but that renunciation was ineffective to alter his status and obligations under the law of his native country. There is no reason to hold that the application of the laws of the second and third respondents' respective native countries exceeds the jurisdiction in matters of nationality which international law would recognize. 1. [1976] A.C. 249, at pp. 278-279; see also pp. 261, 263-264, 267. 2. R. v. Burgess; Ex parte Henry (1936), 55 C.L.R., at pp. 649, 673. 3. [1955] I.C.J., at pp. 13, 17. 4. ibid., at p. 20. 5. ibid., at p. 22. 6. ibid., at p. 22. 7. Signed at The Hague, 12 April 1930, 179 League of Nations Treaty Series 89, at pp. 99, 101. 8. R. v. Burgess; Ex parte Henry (1936), 55 C.L.R., at p. 649. 9. [1976] A.C., at p. 277. 10. (1943) 137 F. 2d 898.

[15]

However, recognition by our municipal law of the effect of foreign law on status and allegiance is subject to a further qualification. In times of war, common law courts have refused to recognize changes in the status either of British subjects [51] or of enemy aliens [52] under the law of the foreign hostile power. In these cases, non-recognition has been justified on the ground of public policy [53] . But there is no reason why the doctrine of public policy should be confined to that situation. If recognition of status, rights or privileges under foreign law would extend the operation of s. 44(i) of the Constitution to cases which it was not intended to cover, that section should be construed as requiring recognition of foreign law only in those situations where recognition fulfils the purpose of s. 44(i). To take an extreme example, if a foreign power were mischievously to confer its nationality on members of the Parliament so as to disqualify them all, it would be absurd to recognize the foreign law conferring foreign nationality. Section 44(i) is concerned to ensure that foreign powers command no allegiance from or obedience by candidates, senators and members of the House of Representatives; it is not concerned with the operation of foreign law that is incapable in fact of creating any sense of duty, or of enforcing any duty, of allegiance or obedience to a foreign power. It accords both with public policy and with the proper construction of s. 44(i) to deny recognition to foreign law in these situations. If foreign law were recognized in these situations, some Australian citizens would be needlessly deprived of the capacity to seek election to the Parliament and other Australians would be needlessly deprived of the right to choose the disqualified citizens to represent them. However, there are few situations in which a foreign law, conferring foreign nationality or the rights and privileges of a foreign national, is incapable in fact of creating a sense of duty, or is incapable of enforcing a duty, of allegiance or obedience to a foreign power. One such situation does occur 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. That is the situation described by Lord Cross [54] in which international law does not recognize the jurisdiction of the foreign power. A second situation occurs when an Australian citizen has done all that lies reasonably within his or her power (i) to renounce the status or the rights or privileges conferred by the foreign law carrying a reciprocal duty of allegiance or obedience to the foreign power and (ii) to obtain a release from any such duty. It is not sufficient, in the second situation, 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.

[59]

There are, of course, practical considerations which favour the preclusion of a person who is disqualified from becoming, or sitting as, a member of the Parliament from nominating as a candidate or having his or her name included on the ballot paper. It is however, arguable in relation to some of the disqualifying provisions of s. 44, that the preferable approach would be to permit nomination or even participation in the poll at least in circumstances where it is plain, or where it lies within the competence of the particular person to ensure, that a candidate will not be disqualified from being chosen as a member of the Parliament at the time when he or she will, if successful on the poll, be declared to be elected. Thus, as regards disqualification under s. 44 by reason of the holding of an office of profit under the Crown, it has long been recognized that it would be against the national interest and unfair, if the comparatively large percentage of the total employed population employed in the Commonwealth or State Public Services [74] were able to stand as candidates for election to the national Parliament only if they completely forfeit the security and seniority of their respective appointments. Accordingly, one finds provision in both Commonwealth and State legislation aimed at enabling a public servant to resign his or her office to stand for Parliament while being assured that, in the event of not being elected, he or she will be entitled to [1] , or entitled to seek [2] , full reinstatement. There is surely much to be said for the view that a procedure such as the taking of leave without pay or other emoluments followed by resignation when it is apparent that the person concerned will ultimately be elected is a preferable one to the rather devious procedure of an ostensible termination of appointment in the context of a persisting relationship and entitlement to resume the appointment if unsuccessful at the poll [3] . Certainly, it appears to me that, within the context of s. 44's disqualification of a person actually becoming, or sitting as, a member of the Parliament while holding an office of profit under the Crown, it should be competent for the Parliament to determine whether, and if so on what terms, a person holding such an office should be allowed to participate at all as a candidate in the electoral process. In that regard, it is relevant to note that the first Parliament of the Commonwealth considered it to be its function to address and determine the question whether a candidate should, at the time of nomination, be qualified under the Constitution to be actually elected as a member of the Parliament. Sections 94 and 95 of the Commonwealth Electoral Act 1902 provided:

[77]

Section 44(i)'s whole purpose is to prevent persons with foreign loyalties or obligations from being members of the Australian Parliament. The first limb of the sub-section (i.e. "is under any acknowledgment of allegiance, obedience, or adherence to a foreign power") involves an element of acceptance or at least acquiescence on the part of the relevant person [9] . In conformity with the purpose of the sub-section, the second limb (i.e. "is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power") should, in my view, be construed as impliedly containing a similar mental element with the result that it applies only to cases where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned. The effect of that construction of the sub-section is that an Australian-born citizen is not disqualified by reason of the second limb of s. 44(i) unless he or she has established, asserted, accepted, or acquiesced in, the relevant relationship with the foreign power. The position is more difficult in a case such as the present where the relationship with the foreign power existed before the acquisition (or re-acquisition) of Australian citizenship. In such a case, what will be involved is not the acquisition or establishment, for the purposes of s. 44, of the relevant relationship with the foreign power but the relinquishment or extinguishment of it. It does, however, seem to me that the purpose which s. 44 seeks to attain and which "must always be kept in mind" [10] would not have included the permanent exclusion from participation at the highest level in the political life of the nation of any Australian citizen 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, and notwithstanding that citizenship of a country is ordinarily a matter determined by the law of that country [11] , 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.

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