Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
23.
favourable exercise of a discretion by the appropriate Minister of the Greek government to release him from his citizenship. The application for the favourable exercise of the discretion was a step reasonably open to him.
Such a step may be contrasted, for example, with a requirement of foreign law that the citizens of the foreign country may renounce their citizenship only by acts of renunciation carried out in the territory of the foreign power. Such a requirement could be ignored by an Australian citizen if his or her presence within that territory could involve risks to person or property. It is not necessary to multiply examples of requirements of foreign law that will not impede the effective choice by an Australian citizen to seek election to the Commonwealth Parliament. It is sufficient to say that in none of the references with which the Court is concerned were candidates confronted by such obstacles to freeing themselves of their foreign ties.
Summary as to the proper construction of s 44(i)
The approaches to the construction of s 44(i) urged on behalf of the Attorney-General, Mr Joyce MP and Senator Nash, and Mr Ludlam and Ms Waters are rejected.
Section 44(i) operates to render "incapable of being chosen or of sitting" persons who have the status of subject or citizen of a foreign power. Whether a person has the status of foreign subject or citizen is determined by the law of the foreign power in question. Proof of a candidate's knowledge of his or her foreign citizenship status (or of facts that might put a candidate on inquiry as to the possibility that he or she is a foreign citizen) is not necessary to bring about the disqualifying operation of s 44(i).
A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.
We turn now to consider the application of s 44(i) to the facts of each reference.
