Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
13.
acquisition of its nationality"[1]. Statements to similar effect were also made in Sykes v Cleary by Brennan, Deane, Dawson and Gaudron JJ respectively[2].
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[3] in confirming the proposition that s 44(i) looks to the relevant foreign law to determine whether a candidate is a foreign citizen[4]. 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."[5] 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)[6]. 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:
- ↑ Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4 at 20.
- ↑ (1992) 176 CLR 77 at 109–112, 127–128, 131, 135.
- ↑ (1992) 176 CLR 77 at 112–114, 135–136.
- ↑ (1999) 199 CLR 462 at 486–487 [47]; [1999] HCA 30.
- ↑ (1999) 199 CLR 462 at 529 [175].
- ↑ (1992) 176 CLR 77 at 107–108, 112–113, 126–127, 131–132, 137.
