22.
s 12(2), the constitutional implication would require the person to take the reasonable steps (futile under foreign law) of submitting the form and paying the fee, in order to satisfy (i) and (ii), before renunciation were deemed to take effect. On another view, the requirement to take all reasonable steps to renounce applies only where all the required steps are reasonable. In other words, if the constitutional imperative were engaged in the above example the person would not be required to take the futile steps of submitting a form and paying a fee as part of a process that was not "effective under the relevant foreign law"[1] and could never lead to renunciation. However, as I indicated above, the person would still be required by s 44(i) to demonstrate that he or she is not "under any acknowledgment of allegiance, obedience, or adherence" to the foreign power. It is not necessary to resolve that issue in this case.
67 Other circumstances involving the actions of foreign officials might engage the constitutional imperative in their practical effect. Again, although it is not necessary to express any concluded opinion, one example given in oral submissions was of a foreign law requiring renunciation to be processed by an official where, in its practical operation, such processing had not taken place after three years. Another might arguably be where a foreign official unreasonably refuses to exercise a discretion to allow renunciation when all steps had otherwise been taken[2].
68 Ultimately, perhaps the most fundamental difficulty for Senator Gallagher's submission that actions of foreign officials should be automatically excluded by the implication is that the submission shears the constitutional implication from its rationale of ensuring that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. The submission treats as an "unreasonable obstacle" falling within the implication any foreign law that does not irremediably prevent participation, but which might have an arbitrary or discriminatory effect. This would require a different implication, one which is lacking in any textual or structural constitutional foundation.
69 For these reasons, as well as generally those in the joint judgment, I would also answer the questions reserved as in the joint judgment.
