Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
18.
Toohey and McHugh JJ expressly adverted to the circumstance that "s 44(i) finds its place in a Constitution which was enacted at a time, like the present, when a high proportion of Australians, though born overseas, had adopted this country as their home" without drawing any distinction between them in terms of the application of s 44(i)[1]. And neither Brennan J nor Dawson J was disposed to draw any distinction between natural-born Australian citizens and naturalised Australian citizens for the purposes of the application of s 44(i). In this, their Honours were, with respect, clearly correct. The text of s 34 of the Constitution draws a distinction between natural-born and naturalised Australians for the purpose of qualifying to be a candidate for election; in contrast, s 44(i) draws no distinction between foreign citizenship by place of birth, by descent or by naturalisation. The absence from the text of s 44(i) of any such distinction cannot be attributed to inadvertence on the part of the framers, both because the concept of citizenship by descent was commonplace at the time of federation, and because of the express provision in s 34[2].
It was submitted on behalf of Mr Windsor that the operation of the constitutional guarantee of single-minded loyalty provided by s 44(i) should not be made to depend upon the diligence which a candidate brings to the observance of the provision. There is force in this submission. To introduce an issue as to the extent of the knowledge obtained by a candidate and the extent of the candidate's efforts in that regard is to open up conceptual and practical uncertainties in the application of the provision. These uncertainties are apt to undermine stable representative government.
At the conceptual level, questions would necessarily arise as to the nature and extent of the knowledge that is necessary before a candidate, or a sitting member for the purposes of s 45(i), will be held to have failed to take reasonable steps to free himself or herself of foreign citizenship. In this regard, the state of a person's knowledge can be conceived of as a spectrum that ranges from the faintest inkling through to other states of mind such as suspicion, reasonable
