Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
20.
In addition, on the approach urged on behalf of Mr Joyce MP and Senator Nash, a person who has been elected to Parliament and then discovers that he or she is a foreign citizen is to be allowed a period in which to take reasonable steps to renounce that citizenship before the disqualifying effect of s 44(i) or s 45(i) bites. During that period the person will have, and may well be seen to have, dual citizenship. That state of affairs cannot be reconciled with the purpose of these constitutional guarantees.
Finally, while it may be said that it is harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question; the nomination form for candidates for both the Senate and the House of Representatives requires candidates to declare that they are not rendered ineligible by s 44. It is necessary to bear in mind that the reference by a house of Parliament of a question of disqualification can arise only where the facts which establish the disqualification have been brought forward in Parliament. In the nature of things, those facts must always have been knowable. A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the Parliament.
Reasonable steps
Section 44(i) is not concerned with whether the candidate has been negligent in failing to comply with its requirements. Section 44(i) does not disqualify only those who have not made reasonable efforts to conform to its requirements. Section 44(i) is cast in peremptory terms. Where the personal circumstances of a would-be candidate give rise to disqualification under s 44(i), the reasonableness of steps taken by way of inquiry to ascertain whether those circumstances exist is immaterial to the operation of s 44(i).
The reasons of the majority in Sykes v Cleary do not support the proposition that a person who is a foreign citizen contravenes the second limb of s 44(i) only if that person actually knows that he or she is a foreign citizen and fails to take reasonable steps available to him or her to divest himself or herself of that status under the foreign law. Nor do the reasons of the majority in Sykes v Cleary support the view that a person who is a foreign citizen is not disqualified if, not knowing of that status, he or she fails to take steps to divest himself or herself of that status.
