14.
Australian citizen having taken all steps reasonably available to him or her under the applicable foreign law to effect renunciation which justifies the implication of the exception to the operation of the disqualification and which sets the boundaries of the operation of the exception.
45 The implied exception is not engaged merely because a person who has the status of citizen of another country under the law of that other country is an Australian citizen who has taken all steps reasonably within his or her power to renounce that citizenship under the law of that country. An Australian citizen who has done everything reasonably within his or her power to renounce his or her citizenship of another country under the law of that country remains within the ambit of the disqualification expressed in s 44(i) for so long as a process of renunciation provided for by the law of that country simply remains incomplete. Retention of foreign citizenship can hardly be said to be irremediable while it remains in the process of being remedied. The implied exception cannot be engaged unless and until such time as such process of renunciation as is provided for by the law of the other country can be characterised for practical purposes as a process that will not permit the person to renounce the foreign citizenship by taking reasonable steps, requiring if not that an impasse has actually occurred then at least that an impasse can be confidently predicted.
46 Assuming Senator Gallagher to have done everything reasonably within her power to renounce her British citizenship under the law of the United Kingdom by 6 May 2016, the fact is that she remained a British citizen under the law of the United Kingdom until registration of her renunciation in accordance with that law on 16 August 2016. Retention of her British citizenship is shown to have been remediable by the fact of that subsequent registration. It follows that the implied exception to the disqualification expressed in s 44(i) of the Constitution was not at any time engaged. Senator Gallagher remained a citizen of a foreign power at the time of her nomination for election to the Senate on 31 May 2016 and was for that reason incapable of being chosen as a senator at the double dissolution election which occurred on 2 July 2016.
47 Nothing turns on such uncertainty as may have existed as to the timing of the election in which Senator Gallagher sought to participate before the Prime Minister announced on 8 May 2016 that the Governor-General had accepted his request to dissolve both Houses of the Parliament and to call a double dissolution election to be held on 2 July 2016, or before the Governor-General on 16 May 2016 issued a writ for the election of senators for the Australian Capital Territory fixing the closing date for nominations as 9 June 2016.
48 Sections 7, 12, 13, 28, 32, 33 and 57 of the Constitution (and, in respect of Territory senators, ss 42, 43 and 44 of the Commonwealth Electoral Act 1918 (Cth)) allow for a degree of latitude as to the timing of elections, which means that in practice the time at which a particular election to the Senate or the House of Representatives is announced or at which a writ is issued will ordinarily
