The constitutional imperative in s 44(i) of the Constitution

Introduction

The High Court of Australia sitting as the Court of Disputed Returns in Re Gallagher [2018] HCA 17 has provided further details about the “constitutional imperative”, the implicit qualification or exception to the operation of s 44(i) of the Commonwealth Constitution which renders a citizen of a foreign power incapable of being chosen or of sitting as a senator or a member of the House of Representatives. The constitutional imperative was described in Re Canavan [2017] HCA 45; (2017) 91 ALJR 1209; (2017) 349 ALR 534.

Background

The background to Re Gallagher was that KG had held British citizenship by reason of her father having been born in England and had taken steps to renounce her British citizenship under the relevant British law.  She had, on 20 April 2016, submitted to the Secretary of State at the British Home Office a completed form of declaration of renunciation of her British citizenship, various accompanying documents and her credit card details for the payment of the relevant fee. Her credit card had been debited with the fee on 6 May 2016. On 31 May 2016, KG had lodged her nomination as a candidate for election to the Senate in the federal election to be held on 2 July 2016. On 20 July 2016, KG had been notified by the Home Office that further (identified) documents were required in order to demonstrate to the Secretary of State that she was a British citizen. KG had replied the same day providing further documents and, on 16 August 2016, the declaration of renunciation had been registered. In the meantime, on 2 August 2016, KG had been returned as a senator for the Australian Capital Territory.

In December 2017, the Senate had resolved to refer to the High Court, sitting as the Court of Disputed Returns, questions which included whether, by reason of s 44(i) of the Constitution, there was a vacancy in the representation for the Australian Capital Territory in the Senate for the place for which KG had been returned.

The issue

It was not in issue that, at the time of her nomination for election as a senator (the date of nomination being the commencement of the process of being chosen to which s 44(i) of the Constitution applies) and subsequent to the time she was returned as elected as a senator, KG had been a British citizen and so was a citizen of a foreign power within the meaning of s 44(i). What was in issue was whether the constitutional imperative which had been referred to in Re Canavan had been engaged such that KG was capable of being chosen as a senator notwithstanding that she had been a British citizen during the process of being chosen. Re Canavan had said as follows:

• s 44(i) was subject to an implicit exception arising from the constitutional imperative underlying it, that an Australian citizen not be irremediably prevented by foreign law from participation in representative government.
• Where it could be shown that the person had taken all steps that were reasonably required by the foreign law to renounce his or her foreign citizenship and within his or her power, the constitutional imperative was engaged.

(For a summary of Re Canavan, see K Ottesen, “Commonwealth parliamentarians disqualified by reason of s 44(i) of the Constitution”, 13 November 2017.)

KG’s submissions

KG submitted that, by 20 April 2016, when she had submitted her declaration of renunciation, or at the latest by 6 May 2016, when her credit card had been debited with the relevant fee, she had taken all steps required by the relevant British law that were within her power to divest herself of her British citizenship and that it was only by reason of matters which were beyond her control that she did not cease to be a British citizen before the date of her nomination as a candidate for the Senate – those matters being the time and manner in which the Secretary of State chose to cause the declaration of renunciation to be registered. Accordingly, it was said that the ability of the Secretary of State to choose the time and manner in which to perform this function under the British law was an irremediable impediment to KG’s participation in the 2016 election, with the result that the constitutional imperative was engaged, entitling her to participate in the election (at [19]).

Court’s decision

The Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) unanimously found that the constitutional imperative had not been engaged and, accordingly, answered the referred question by saying that there was a vacancy in the representation for the Australian Capital Territory in the Senate for the place for which KG was returned.

Court’s reasoning

A joint judgment of Kiefel CJ, Bell, Keane, Nettle and Gordon JJ (“Joint Judgment”) explained the constitutional imperative in the following way (at [23]-[36]):

• In the context of s 44(i), the concern of the constitutional imperative was that an Australian citizen might forever be unable to participate in elections because a foreign law prevented that person from divesting himself or herself of the foreign citizenship which, if s 44(i) were to apply in its terms, would disqualify that person from nomination. Thus, s 44(i) was subject to an implicit qualification or exception which gave effect to the constitutional imperative in circumstances where it could be said that the purpose of s 44(i) was met. The qualification extended only so far as was necessary to give effect to the textual and structural features which supported it, and the qualification operated in its own terms.
• Re Canavan indicated that two circumstances had to be present for s 44(i) to be read as subject to the qualification. The first, which arose from the terms of the constitutional imperative, was that a foreign law operated irremediably to prevent an Australian citizen from participation in representative government. The second was that that person had taken all steps reasonably required by the foreign law which were within his or her power to divest him or herself of the foreign nationality.
• A foreign law would not “irremediably prevent” an Australian citizen from renouncing the foreign citizenship simply by requiring that particular steps be taken to achieve it. For a foreign law to meet this description, it had to present something of an insurmountable obstacle, such as a requirement with which compliance was not possible (for example, a requirement that the acts of renunciation take place in the territory of the foreign power where the person’s presence within that territory involved risk to the person). The operation of the foreign law and its effect were to be viewed objectively.
• The “test” for the engagement of the constitutional imperative was not contained in the second circumstance that the person have taken all steps that were reasonably required by the foreign law which were within his or her power to renounce his or her foreign citizenship. Both of the circumstances referred to in Re Canavan had to be present for the qualification to apply. There needed to be a foreign law which operated to irremediably prevent an Australian citizen from participation in representative government and in every case it was necessary that all steps reasonably required which were able to be taken towards renunciation were taken under that same foreign law.
• All reasonable steps had to be taken even though the foreign law would in any event operate to prevent renunciation being achieved because of the concerns of s 44(i) that so long as a person’s duty or allegiance remained under foreign law, there would be an impediment to unqualified allegiance to Australia. It was not until it was manifest that a person had done all he or she could towards renunciation that the qualification should apply.
• KG’s submissions in relation to s 44(i) were based upon a constitutional imperative which was different or wider in its operation than that referred to in Re Canavan. The constitutional imperative referred to in Re Canavan did not require that s 44(i) be read so that its effects were more generally ameliorated so as to ensure the ability of foreign citizens to nominate. What it required was much more limited – it was that an Australian citizen not be irremediably prevented by foreign law from participation in representative government.
• The constitutional imperative, and the qualification which it informed and of which it formed part, was concerned with how foreign law operated with respect to a renunciation of the status of foreign citizen. A law regarding citizenship and its renunciation might operate by reference to requirements of individuals. It might give powers, including discretions, to and impose duties on officials, including with respect to decision-making.

The Joint Judgment concluded that the constitutional imperative was not engaged in the case of KG for the following reasons (at [37]-[39]; see also [21]-[22]):

• There was no aspect of the relevant British law which operated to irremediably prevent KG from nominating for an election. No requirement of the British law was onerous, the procedure for renunciation was simple and there was never any doubt that a decision to register the declaration of renunciation would be made – the only issue was as to the timing of the registration of the declaration.
• There was no support in Re Canavan for KG’s submission that, because she had done all that was required of her by British law and which was within her power to do, everything that occurred thereafter under British law which prevented her nomination was to be regarded as an irremediable impediment. It was not sufficient for the qualification in s 44(i) to apply for a person to have made reasonable efforts to renounce the foreign citizenship.
• British law did not operate to irremediably prevent a person from achieving renunciation of British citizenship merely because a decision might not be provided in time for a person’s nomination. The qualification to s 44(i) was not engaged by a foreign law which presented an obstacle to a particular individual being able to nominate for a particular election.

In their separate judgments, Gageler and Edelman JJ agreed with the reasons given in the Joint Judgment (at [41] and [69]) but gave further reasons for reaching the same conclusion as the Joint Judgment.