13.
41 GAGELER J. The questions referred by the Senate are set out in the joint reasons for judgment. For the following reasons, in addition to those set out in the joint reasons for judgment, I agree with the answers there proposed.
42 The disqualification expressed in s 44(i) of the Constitution is relevantly that "[a]ny person" who is "a citizen … of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives". The disqualification serves the constitutional purpose of preventing a senator or member of the House of Representatives from being conflicted in the performance of his or her parliamentary or executive duties to the Commonwealth of Australia as a result of such allegiance and other duties as may be attendant under foreign law on being a citizen of another country. A person meets the description of a citizen of a foreign power so as to fall within the expressed ambit of the disqualification simply by reason of having the status of citizen of another country under the law of that country.
43 The "constitutional imperative" recognised in Re Canavan[1] is an implied exception to the operation of that disqualification. The implied exception serves the function of ensuring that the disqualification does not operate so rigidly as to undermine the constitutionally prescribed system of representative and responsible government which the disqualification is designed to protect. The centrally informing notion is that an Australian citizen who meets the qualifications for election as a senator or member set by ss 16 and 34 of the Constitution or by a law enacted by the Commonwealth Parliament under s 51(xxxvi) for the purpose of s 34 of the Constitution is not to be permanently disabled from participating in the parliamentary and executive government of Australia by a disqualification in s 44, with the possible exception only of an Australian citizen who "is attainted of treason" within the meaning of s 44(ii). That centrally informing notion is complemented in its application to s 44(i) by the notion that an arbitrary or intransigent operation of the law of another country cannot be permitted to frustrate the ability of such an Australian citizen to participate in the parliamentary and executive government of Australia.
44 The implied exception to the operation of the disqualification expressed in s 44(i) is accordingly engaged where a person who has the status of citizen of another country under the law of that country, and who therefore falls within the expressed ambit of the disqualification, is an Australian citizen who irremediably retains the status of citizen of another country under the law of that country despite having taken all steps reasonably within his or her power to renounce that citizenship under the law of that country. Critical to recognise is that it is the irremediable nature of the retention of foreign citizenship in circumstances of the
- ↑ (2017) 91 ALJR 1209 at 1214 [13], 1218–1219 [43]–[46], 1223 [72]; 349 ALR 534 at 539, 545–546, 551; [2017] HCA 45.
