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Re Gallagher 502 HIGH COURT OF AUSTRALIA [(2018) Re Gallagher [2018] HCA 17 Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ 14 March, 9 May 2018 Constitutional Law — The non-judicial organs of government — The legislature — Elections and related matters — Candidates for election — Eligibility of candidate for nomination or election — Citizens of foreign power and persons subject to related disqualifications — Renunciation of foreign citizenship — Time at which renunciation takes effect — Effect of foreign law on eligibility for nomination — Implicit qualification to constitutional imperative — “Reasonable steps” to renounce — United Kingdom — Registration of formal renunciation — Where dependent on administrative action or discretion — Whether such as to irremediably prevent participation in electoral process — Constitution, s 44(i) — British Nationality Act 1981 (UK), s 12(1). The Constitution s 44(i) provides that “any person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives”. Senator Gallagher lodged her nomination for election as a Senate candidate on 31 May 2016 and was returned as a senator for the Australian Capital Territory on 2 August. It was not disputed that on and after her nomination date Senator Gallagher was a British citizen by descent. On 20 April 2016 she submitted her declaration renouncing that citizenship and supporting documentation to the Australian Labor Party which forwarded the documents to the United Kingdom Home Office which in turn received them on 26 April and processed the relevant fee on 6 May. Senator Gallagher provided further evidence of her status as a British citizen following the Home Office’s request made on 1 July and her declaration of renunciation was finally registered on 16 August. On 7 December 2017, the Senate referred questions concerning Senator Gallagher’s eligibility under s 44(i) to the High Court of Australia, sitting as the Court of Disputed Returns. Before the court, Senator Gallagher submitted that the implicit qualification to s 44(i), as stated in Re Canavan (2017) 91 ALJR 1209, that an Australian citizen not be irremediably prevented by foreign law from participation in representative government where a citizen has taken all steps reasonably required by foreign law to renounce his or her foreign citizenship, was engaged in her situation. She contended that by 20 April 2016, or at the latest 6 May 2016 when the fee was paid, she had taken every step required by the British Nationality Act 1981 (UK), s 12(1) that was in her power to renounce her British citizenship and that as a consequence the constitutional imperative worked to allow her to participate in the election. The Commonwealth Attorney-General submitted that unless the relevant foreign law imposed an irremediable impediment to effective renunciation, it was necessary that a candidate divest themselves of their status as foreign citizens before nomination. The Attorney-General further submitted that the exception to s 44(i) did not apply to British law because it did not, either in its terms or in its operation, render it 92 ALJR 502] RE GALLAGHER 503 impossible, or not reasonably possible, to renounce British citizenship and that as Senator Gallagher remained a British citizen when she was nominated, she was incapable of being chosen. The referred questions were relevantly whether there was a vacancy, by reason of the Constitution, s 44(i), for the place in which Senator Gallagher had been returned, and if yes, by what means, and in what manner, that vacancy should be filled. Held (by the court): (1) (by Kiefel CJ, Bell, Keane, Nettle and Gordon JJ; Gageler J agreeing; Edelman J agreeing) The constitutional imperative that Australian citizens be able to participate in the representative government for which the Constitution provides requires that s 44(i) be subject to an implicit qualification to meet the concern that if it were to apply in its terms, an Australian citizen might forever be unable to participate in elections because a foreign law prevents that person from freeing himself or herself of the foreign citizenship. The qualification operates in its own terms. [23], [24], [34], [41], [43], [69] Re Canavan (2017) 91 ALJR 1209, considered. (2) (by Kiefel CJ, Bell, Keane, Nettle and Gordon JJ; Gageler J agreeing; Edelman J agreeing) For s 44(i) to be subject to that implicit qualification or exception, two circumstances must be present: first, that a foreign law operates irremediably to prevent an Australian citizen from participation, and second, that that person has taken all steps reasonably required by the foreign law which are within his or her power to free him- or herself of the foreign nationality. [26], [31], [41], [44], [69] Re Canavan (2017) 91 ALJR 1209, considered. (3) (by Kiefel CJ, Bell, Keane, Nettle and Gordon JJ; Gageler J agreeing; Edelman J agreeing) A foreign law will not “irremediably prevent” an Australian citizen from renouncing foreign citizenship simply by requiring that particular steps be taken to achieve it: it must present something of an insurmountable obstacle, such as a requirement with which compliance is not possible. The operation of the foreign law and its effect are to be viewed objectively. [27], [30], [41], [69] Sykes v Cleary (1992) 176 CLR 77; 67 ALJR 59; Re Canavan (2017) 91 ALJR 1209, applied. (4) (by Kiefel CJ, Bell, Keane, Nettle and Gordon JJ; Gageler J agreeing; Edelman J agreeing) All steps must be taken even though a foreign law will in any event operate to prevent renunciation being effected: so long as a duty or an allegiance remain under foreign law, it could be seen as an impediment to unqualified allegiance to Australia. Accordingly, it is only after all reasonable steps have been taken under foreign law to renounce the status, and with it the duty, of foreign citizenship that it is possible to say that the purpose of s 44(i) would not be fulfilled by recognition of the foreign law. Additionally, it is not until it is manifest that a person has done all he or she can towards renunciation that the exception should apply. [32], [41], [69] (by Gageler J) Retention of foreign citizenship cannot be said to be irremediable while it remains in the process of being remedied. The implied exception cannot be engaged unless and until such time as such process of renunciation as the foreign law provides can be characterised for practical purposes as one that will not permit the person to renounce the foreign citizenship by taking reasonable steps: requiring if not that an impasse has actually occurred then at least that an impasse can confidently be predicted. [45] (by Edelman J) Senator Gallagher’s submission that the constitutional imperative should allow no operation to the British Nationality Act, s 12(2) (which provides for cessation of British citizenship on registration of renunciation), 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 the implication becomes vague and uncertain and the more unpredictable its operation becomes. The constitutional implication is narrowly tailored to ensure that a foreign law does not stultify a person’s qualified ability to participate: it only requires that “an Australian citizen not be irremediably prevented by foreign law from participation in representative government”. [58], [63], [64] Re Canavan (2017) 91 ALJR 1209, applied. 504 HIGH COURT OF AUSTRALIA [(2018) (5) (by Kiefel CJ, Bell, Keane, Nettle and Gordon JJ; Gageler J agreeing; Edelman J agreeing) Senator Gallagher failed to identify any aspect of the relevant British law which operated to prevent her irremediably from nominating for an election. British law did not operate to irremediably prevent an Australian citizen applying for renunciation of British citizenship from ever achieving it. The exception is not engaged by a foreign law which presents an obstacle to a particular individual being able to nominate for a particular election. Senator Gallagher remained a citizen of a foreign power at the time of her nomination and was therefore incapable of being chosen as a senator at the subsequent double dissolution election. [37]-[39], [41], [69] Re Canavan (2017) 91 ALJR 1209, considered. (by Gageler J) Assuming that Senator Gallagher did everything reasonably within her power to renounce her British citizenship, the fact was that she remained a British citizen until her renunciation was registered in accordance with United Kingdom law on 16 August 2016. Retention of her British citizenship was shown to have been remediable by the fact of that subsequent registration. The implied exception to her disqualification was not at any time engaged. It was Senator Gallagher’s responsibility to ensure that renunciation of her British citizenship took effect under the law of the United Kingdom before she nominated for election if she was to escape the disqualifying effect of s 44(i). [46], [50] (6) (by Kiefel CJ, Bell, Keane, Nettle and Gordon JJ; Gageler J agreeing; Edelman J agreeing) There was accordingly a vacancy for the Senate seat for the Australian Capital Territory, which should be filled by a special count of the ballot papers. [40], [41], [69] Questions reserved for the Full Court answered accordingly. Cases Cited Canavan, Re (2017) 91 ALJR 1209. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 71 ALJR 818. Liechtenstein v Guatemala (Nottebohm Case) [1955] ICJR 4.
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