Free v Kelly

The parties to this proceeding were Ross Vincent Free (the applicant) and Jacqueline Marie Kelly and the Australian Electoral Commission (the respondents). The dispute concerned the validity of the election of Ms Kelly as a Senator for New South Wales at the 2022 federal election. The applicant sought to have Ms Kelly's election declared void. The matter was heard by the High Court of Australia, sitting as the Court of Disputed Returns.

The primary legal issue before the Court was whether Ms Kelly was incapable of being chosen as a Senator by reason of being a subject or citizen of a foreign power, contrary to section 44(i) of the *Constitution*. Specifically, the Court was required to determine whether Ms Kelly, by virtue of her dual citizenship with the United Kingdom, was disqualified from election to the Parliament of the Commonwealth.

The Court's reasoning focused on the interpretation of section 44(i) of the *Constitution* and the application of established High Court jurisprudence concerning dual citizenship. The Court considered the circumstances of Ms Kelly's acquisition of British citizenship and whether she had taken "any oath, affirmation, or declaration of allegiance, obedience, or adherence to a foreign power" or had become "a subject or citizen of a foreign power" within the meaning of the constitutional provision. The Court applied the principles that a person is disqualified under section 44(i) if they are a subject or citizen of a foreign power at the time of nomination and election, unless they have taken reasonable steps to renounce that foreign allegiance.

The Court found that Ms Kelly had not been a subject or citizen of a foreign power at the time of her nomination and election, and therefore was not disqualified under section 44(i) of the *Constitution*. Accordingly, the Court dismissed the application and declared Ms Kelly to be duly elected as a Senator for New South Wales.