Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
19.
belief and moral certainty to absolute certainty[1]. If one seeks to determine the point on this spectrum at which knowledge is sufficient for the purposes of ss 44(i) and 45(i), one finds that those provisions offer no guidance in fixing this point. That is hardly surprising given that these provisions do not mention the knowledge of a person or the person's ability to obtain knowledge as a criterion of their operation.
The conceptual difficulty may be illustrated by considering the following questions. Does a candidate who has been given advice that he or she is "probably" a foreign citizen know that he or she is a foreign citizen for the purposes of s 44(i)? Is the position different if the effect of the advice is that there is "a real and substantial prospect" that the candidate is a foreign citizen? Does a candidate in possession of two conflicting advices on the question know that he or she is a foreign citizen for the purposes of s 44(i) only when the advice that he or she is indeed a foreign citizen is accepted as correct by a court?
It may be said that the variation on the principal submission of the Attorney-General, with its focus on voluntary acts, has the virtues of eschewing a distinction in principle between natural-born and naturalised Australians and of avoiding the conceptual difficulties associated with interrogating a candidate's knowledge or state of mind. But ultimately the variation in the Attorney-General's approach depends upon the unstable distinction between overt voluntary acts and conscious omissions. The application of the natural and ordinary meaning of s 44(i) serves to avoid the difficulties which attend this unstable distinction.
The practical problems involved in applying the standard for which Mr Joyce MP and Senator Nash argue would include the difficulties of proving or disproving a person's state of mind. Not the least of these difficulties would be the regrettable possibility of a want of candour on the part of a candidate or sitting member whose interests are vitally engaged. And during the fact-finding process the entitlement of the member to continue to sit in Parliament would be under a cloud.
- ↑ Cf Baden v Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France SA [1993] 1 WLR 509 at 575–576; [1992] 4 All ER 161 at 235.
