10.
person has done all he or she can towards renunciation that the exception should apply.
33 Senator Gallagher's approach to s 44(i) is based upon a constitutional imperative which is different from or wider in its operation than that described in Re Canavan. The constitutional imperative of which Senator Gallagher speaks is said to be informed by a purpose to preserve participation in representative government and, consistent with that different or wider constitutional imperative, it is necessary that matters which are beyond the control of a candidate are to be taken into account with respect to the operation of the constitutional imperative. By way of example, if a snap election is called, the constitutional imperative should operate to permit a person to nominate, notwithstanding the terms of s 44(i).
34 It is not necessary to address the various aspects of the constitutional imperative for which Senator Gallagher contends which find no expression in that stated in Re Canavan. The constitutional imperative there recognised does not demand that s 44(i) be read so that its effects are more generally ameliorated so as to ensure the ability of foreign citizens to nominate. Its command is much more limited. It is, in terms, "that an Australian citizen not be irremediably prevented by foreign law from participation in representative government"[1].
Identification of foreign law
35 Senator Gallagher's argument as to the constitutional imperative contains one submission which is relevant to the identification of the foreign law to be considered in connection with the exception. It is submitted that the constitutional imperative cannot be made to depend upon the actions of foreign officials or exercises of discretion under foreign law which may be productive of arbitrary results.
36 The submission may be dealt with shortly. The constitutional imperative, and the exception which it informs and of which it forms part, is concerned with how foreign law operates with respect to a renunciation of the status of foreign citizen. A law regarding citizenship and its renunciation may operate by reference to requirements of individuals. It may give powers, including discretions, to and impose duties on officials, including with respect to decision-
- ↑ Re Canavan (2017) 91 ALJR 1209 at 1214 [13], 1223 [72]; 349 ALR 534 at 539, 551.
