11.
making. To ignore these powers and their exercise would be to distort the reality of the foreign law and its effect. Moreover it is evident from the discussion in Sykes v Cleary[1] and Re Canavan[2] that a discretionary power is to be regarded as part of foreign law for the purposes of s 44(i).
An irremediable impediment?
37 Senator Gallagher does not identify any aspect of the relevant British law which operates to prevent her irremediably from nominating for an election. No requirement of the relevant provisions could be described as onerous. The procedure is simple. There was never any doubt that a decision to register would be made. The issue for Senator Gallagher was only ever to be the timing of the registration.
38 Senator Gallagher's contention is that because she had done all that was required of her by British law and which was within her power to do, everything that occurred thereafter under British law which prevented her nomination is to be regarded as an irremediable impediment. Such a submission finds no support from what was said in Re Canavan. It is not sufficient for the exception to s 44(i) to apply for a person to have made reasonable efforts to renounce. In Re Canavan it was explicitly said[3] that the majority in Sykes v Cleary did not suggest that a candidate who made a reasonable effort to comply with s 44(i) was thereby exempt from compliance with it.
39 The questions in this reference turn upon one issue: whether British law operated to irremediably prevent an Australian citizen applying for renunciation of his or her British citizenship from ever achieving it. An affirmative answer cannot be given merely because a decision might not be provided in time for a person's nomination. The exception is not engaged by a foreign law which presents an obstacle to a particular individual being able to nominate for a particular election.
