Today the High Court, sitting as the Court of Disputed Returns upon references from the Senate and the House of Representatives, unanimously held that each of Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts, the Hon Barnaby Joyce MP and Senator the Hon Fiona Nash was “a subject or a citizen … of a foreign power” at the time of his or her nomination for the 2016 federal election, and that each was therefore incapable of being chosen or of sitting as a senator or a member of the House of Representatives (as applicable) by reason of s44(i) of the Constitution. The Court unanimously held that neither Senator the Hon Matthew Canavan nor Senator Nick Xenophon was disqualified by reason of that provision.
In each reference, the question: whether the referred person was disqualified, turned upon the proper construction of s 44(i) of the Constitution, having regard to evidence suggesting that each person held dual citizenship at the time of his or her nomination.
The Court appointed an amicus curiae to act as contradictor in the references concerning Senators Canavan, Nash and Xenophon, and Mr Antony Windsor became a party to the reference concerning Mr Joyce MP.
The approach to construction urged by the amicus curiae and by Mr Windsor was to give s 44(i) its ordinary textual meaning, subject only to the implicit qualification in s 44(i) that the foreign law conferring foreign citizenship must be consistent with the constitutional imperative underlying that provision, namely that an Australian citizen not be prevented from participation in representative government where it can be demonstrated that he or she took all steps reasonably required by foreign law to renounce his or her citizenship of a foreign power.
Several alternative constructions were proposed by the referred persons and by the Attorney‑General of the Commonwealth. At a minimum, each of these involved reading s 44(i) as subject to an implied mental element in relation to the acquisition or retention of foreign citizenship. Those constructions varied with respect to the degree of knowledge required and whether a voluntary act of acquiring or retaining foreign citizenship was necessary.
The Court held that the approach of the amicus and Mr Windsor must be accepted, as it adheres most closely to the ordinary and natural meaning of the language of s 44(i), and accords with the views of a majority of the Justices in Sykes v Cleary (1992) 176 CLR 77; [1992] HCA 60. It was held that a consideration of the drafting history of s 44(i) does not warrant a different conclusion. Further, the Court observed that the approach adopted avoids the uncertainty and instability that attends the competing constructions.
Applying that approach, the Court held that Mr Ludlam, Ms Waters, Senator Roberts, Mr Joyce MP and Senator Nash were disqualified by reason of s 44(i). Neither Senator Canavan nor Senator Xenophon was found to be a citizen of a foreign power, or entitled to the rights or privileges of a citizen of a foreign power, within the meaning of s 44(i), and therefore neither was disqualified by reason of that provision.
[IN THE MATTERS OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR THE HON MATTHEW CANAVAN, MR SCOTT LUDLAM, MS LARISSA WATERS, SENATOR MALCOLM ROBERTS, THE HON BARNABY JOYCE MP, SENATOR THE HON FIONA NASH AND SENATOR NICK XENOPHON; the High Court of Australia, 27 October 2017, [2017] HCA 45]
[High Court website: Judgement Summary; LTN 206, 27/10/17; TM Oct 2017]
COMMONWEALTH ELECTORAL ACT 1918
376 Reference of question as to qualification or vacancy
Any question respecting the qualifications of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question.
Commonwealth of Australia Constitution Act – An Act to constitute the Commonwealth of Australia [The Australian Constitution]
Any person who:
(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or
(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or
(iii) is an undischarged bankrupt or insolvent; or
(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or
(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.
Sykes v Cleary [1992] HCA 77
Catchwords
Parliamentary Elections (Cth) – House of Representatives – Candidates – Capacity to be chosen – Disqualifications – Holding office of profit under Crown – Office under State Crown – Date on which office held – State school teacher on leave without pay – Whether disqualified – Citizen of foreign power – Dual citizenship – Unilateral renunciation of foreign citizenship – Whether effective to terminate foreign citizenship – The Constitution (63 and 64 Vict., c 12 ), s. 44(i), (iv).
Hearing
Canberra, 1992, August 26, 27, November 25 25:11:1992
CASE STATED pursuant to s. 18 of the Judiciary Act 1903(Cth).
Ian Grant Sykes petitioned the High Court sitting as the Court of Disputed Returns under the Commonwealth Electoral Act 1918 (Cth) for an order that Philip Ronald Cleary, who had been declared to be elected at a by-election for the Electoral Division of Wills in the House of Representatives, was incapable of being elected as a result of s. 44(iv) of the Constitution by reason of the fact that he held an office of profit under the Crown because he was an officer of the Education Department of Victoria. The petitioner also alleged that two other candidates, John Charles Delacretaz and Bill Kardamitsis, were ineligible for election on the ground that each of them, though a naturalized Australian citizen, was a subject or citizen or entitled to the rights or privileges of a subject or citizen of a foreign power and was therefore under acknowledgment of allegiance to a foreign person within the meaning of s. 44(i) of the Constitution. …