7.
22 The Attorney-General's alternative submission is that if it were sufficient for Senator Gallagher to have taken all steps reasonably required by British law to renounce her British citizenship prior to nomination, she did not do so. It is not necessary to resolve the issues arising from that submission. The Attorney-General's primary submission is clearly correct. It reflects the law stated in Sykes v Cleary and Re Canavan.
The constitutional imperative
23 A concern of the constitutional imperative discussed in Re Canavan is the ability of Australian citizens to participate in the representative government for which the Constitution provides. But the context for the constitutional imperative narrows its focus. The particular constitutional context for the imperative is s 44(i) and the disqualification it effects by reference to a person's status as a foreign citizen. Its concern, properly understood, is that an Australian citizen might forever be unable to participate in elections because a foreign law prevents that person from freeing himself or herself of the foreign citizenship which, if s 44(i) were to apply in its terms, would disqualify that person from nomination.
24 The constitutional imperative thus requires that s 44(i) be seen as subject to an implicit qualification which gives effect to the constitutional imperative in circumstances where it may be said that the purpose of's 44(i) is met. Consistently with the limits which are accepted to apply with respect to the making of a constitutional implication, the qualification to s 44(i) can extend only so far as is necessary to give effect to the textual and structural features which support it[1]. There is no warrant for reading it, or the constitutional imperative upon which it is based, more widely. The qualification operates in its own terms.
25 In Re Canavan the qualification to s 44(i) was expressed as an exception[2]:
"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
