Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
16.
Knowledge of foreign citizenship as an element of s 44(i)
Section 44(i) does not say that it operates only if the candidate knows of the disqualifying circumstance. It is a substantial departure from the ordinary and natural meaning of the text of the second limb to understand it as commencing:
"Any person who:
- … knows that he or she is a subject or a citizen …"
Further, to accept that proof of knowledge of the foreign citizenship is a condition of the disqualifying effect of s 44(i) would be inimical to the stability of representative government. Stability requires certainty as to whether, as from the date of nomination, a candidate for election is indeed capable of being chosen to serve, and of serving, in the Commonwealth Parliament[1]. This consideration weighs against an interpretation of s 44(i) which would alter the effect of the ordinary and natural meaning of its text by introducing the need for an investigation into the state of mind of a candidate.
The approach urged on behalf of the Attorney-General echoes that of Deane J in Sykes v Cleary. Deane J considered that while only the first limb of s 44(i) expressly requires some form of voluntary manifestation of allegiance, the balance of s 44(i) should also be understood as incorporating a mental element so that the provision in its entirety applies "only to cases where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned."[2]
It had been submitted for Mr Kardamitsis, the third respondent in Sykes v Cleary, that "only a person who is presently subject to a continuing allegiance to a foreign power brought about by some voluntary act, or one whose real and effective nationality is foreign, would be disqualified."[3] Deane J accepted the
