18.
Oppenheimer v Cattermole[1], was "when the foreign law, purporting to affect nationality of persons who have had no connexion or only a very slender connexion with the foreign power, exceeds the jurisdiction recognized by international law".
55 It is unnecessary on this reference to consider whether, in addition to the exceptions discussed by Brennan J, there are, or should be, any further exceptions in international law or public policy sourced in common law or legislation. Although Senator Gallagher referred in oral submissions to the example of exorbitancy, and although at times she submitted that parts of the relevant foreign law – the British Nationality Act 1981 (UK) – should not be "recognised", her focus was not upon this usually anterior question. Instead, her submissions correctly assumed that none of the existing, limited exceptions applied to prevent recognition of the foreign law. She relied instead upon the implied constitutional qualification upon s 44(i) to prevent the foreign law, assuming it to be recognised, having any application.
56 The implied constitutional qualification was first discussed in Sykes v Cleary. In that case, the joint judgment of Mason CJ, Toohey and McHugh JJ[2] and the separate judgment of Dawson J[3] identified an implication, based on construction of s 44(i) in its context, that unqualified effect would not be given to the common law and international law rules that would otherwise require citizenship to be determined by the foreign state. Deane J, in dissent, also recognised a constitutional implication "which must be read into" s 44(i)[4], although his Honour's broader implication did not command the support of a majority of the Court.
57 In Re Canavan, this constitutional implication was described as a "constitutional imperative". Like the "constitutional imperative" said to underlie the freedom to communicate on political matters[5] or the freedom to vote[6], the
- ↑ [1976] AC 249 at 277.
- ↑ (1992) 176 CLR 77 at 107.
- ↑ (1992) 176 CLR 77 at 131.
- ↑ (1992) 176 CLR 77 at 127–128.
- ↑ Wotton v Queensland (2012) 246 CLR 1 at 30 [76]; [2012] HCA 2.
- ↑ Roach v Electoral Commissioner (2007) 233 CLR 162 at 182 [24]; [2007] HCA 43; Rowe v Electoral Commissioner (2010) 243 CLR 1 at 59 [161], 117 [368], 121 [384]; [2010] HCA 46; Murphy v Electoral Commissioner (2016) 90 ALJR 1027 at 1038 [34], 1069 [239]; 334 ALR 369 at 380, 422; [2016] HCA 36.
