Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon
[2017] HCATrans 200
[2017] HCATrans 200
IN THE HIGH COURT OF AUSTRALIA
SITTING AS THE COURT OF
DISPUTED RETURNS
Office of the Registry
Canberra No C11 of 2017
B e t w e e n -
IN THE MATTER 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
Office of the Registry
Canberra No C12 of 2017
B e t w e e n -
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MR SCOTT LUDLAM
Office of the Registry
Canberra No C13 of 2017
B e t w e e n -
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MS LARISSA WATERS
Office of the Registry
Canberra No C14 of 2017
B e t w e e n -
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR MALCOLM ROBERTS
Office of the Registry
Canberra No C15 of 2017
B e t w e e n -
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
THE HON. BARNABY JOYCE MP
Office of the Registry
Canberra No C17 of 2017
B e t w e e n -
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
SENATOR THE HON. FIONA NASH
Office of the Registry
Canberra No C18 of 2017
B e t w e e n -
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING
SENATOR NICK XENOPHON
KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 11 OCTOBER 2017, AT 10.17 AM
(Continued from 10/10/17)
Copyright in the High Court of Australia
____________________
KIEFEL CJ: Yes, Mr Bennett.
MR BENNETT: May it please the Court. Yesterday I was dealing with the difficulty which arises in many cases of determining whether or not one is a foreign citizen and the uncertainty and difficulty that that can generate. I mentioned that in the case of Senator Canavan there was another quirk. May I just take your Honours to that quirk.
Your Honours will recall that the reason he became an Italian citizen, if he did, because of the constitutional decision, was that his mother’s mother’s successful application for Australian naturalisation took place after the birth of his mother. But let me show your Honours something.
At page 284 to 285 of volume 2 of the court book, your Honours have the statutory declaration made by Senator Canavan’s mother’s mother on her application for naturalisation and your Honours will see on page 285, in the middle of the page, in tiny letters that your Honours will hardly be able to decipher without a magnifying glass, the words:
Unmarried children under sixteen years of age resident in Australia whose names it is desired to have included in Certificate of Naturalisation.
And under that, your Honours see “Maria”, Senator Canavan’s mother, who was then four years old. The whole of that section has been crossed off, presumably by some public servant in the Department of Immigration, and the reason for striking it out has been scribbled in the margin. Your Honours see the words “Aust. born”.
So Senator Canavan’s grandmother, when she became naturalised, attempted to have her daughter – his mother – naturalised and a clerk has said, no, no, no, that is not necessary, she was born in Australia so she need not be included. Now one asks the question, and I am not going to answer it, what would Italian law which says that one forfeits Italian citizenship on foreign naturalisation make of an attempt by a parent to have a child naturalised which is rejected by local authorities on the ground that the person is already a citizen.
Your Honours, I do not ask your Honours even to guess at what an Italian court would make of that. It is no doubt an undecided question. But it is illustrative of the problems that one might get if one were investigating as an objective matter was Senator Canavan an Italian citizen or not? If one had a royal commission into that question with unlimited time and resources to investigate, no doubt that is one additional matter it would need to investigate. But how is Senator Canavan supposed to work that out? How is anyone supposed to work it out?
These matters arise because of the difficulties in applying foreign law. One comes back to what Justice Deane said in Sykes v Cleary at the bottom of page 126. Having referred to section 44(i) – this is the last four lines on page 126 – he says:
Obviously, and this was not disputed, those words –
in section 44:
must be read down to some extent. Otherwise, to take an extreme hypothetical example, it would lie within the power of a foreign nation to disqualify the whole of the Australian Parliament by unilaterally conferring upon all of its members the rights and privileges of a citizen of that nation. The reason why that is so is that s. 44(i) refers only to being “entitled” to the rights or privileges of a subject or a citizen . . . not to the assertion or acceptance of those rights. The real question on this aspect of the case is how the words of the subsection should be read down to avoid such obviously objectionable and unintended consequences.
Your Honours, we submit that indefinite succession automatically imposed a fortiori, if it is done retrospectively, is an exorbitant law for this purpose. It is something that fits very comfortably within the words “lend a connection” in the judgments in Sykes v Cleary and it gives rise to the most undesirable inquiries. Members of Parliament always have people who are desirable of removing them from Parliament. That must apply to every member and to every senator, that there are those who have an interest in having them removed, even if it is only the next person on the ballot.
Now, if one allows citizenship to pass by indefinite succession, one is going to have such people engaging in genealogical witch‑hunts which will occupy this Court every time there is an election. Your Honours, that is reminiscent of the days long past, I am glad to say, when people talked about quadroons, octoroons and even hexadecaroons where a person had one‑sixteenth black ancestry.
Your Honours, such offensive inquiries are totally inappropriate in a nation of immigrants, which was a nation of immigrants as well in 1901, and your Honours should, for that reason, regard indefinite foreign citizenship – sorry, indefinite descent as offensive and something that simply should not be applied. As was said in Oppenheimer v Cattermole the category of foreign laws that should not be applied is wider than the extreme of that case but certainly we would submit it extends to this case.
Your Honours, on the question of nation of immigrants I would just remind your Honours very briefly of the evidence that was found of an expert report on the numbers of people disqualified. That appears at page 348 of volume 2. That page is the end of the report and I will not take your Honours through the tedious statistics. But what he has done is to calculate the number of Australian citizens that may potentially be dual citizens. He says at the top of the page:
Our research suggests that this number may be as high as 45.06% of the relevant population.
It is actually higher than that, your Honours, because that does not take into account people who have citizenship by descent for more than one generation.
We have acknowledged the potential for small quantification errors such as double counting. These are known to the ABS. Nevertheless, the ABS data are the best available and even significant downwards error of 4 per cent in the estimates, et cetera, which would still suggest at least 41 per cent of Australian citizens are potentially dual citizens.
Now, your Honours, that is – in Culleton’s Case, your Honours looked at the consequences of construing section 45 in relation to a person who had been convicted and whose appeal was later allowed. This is a stronger case, we would submit, for construing section 44 in the light of its practical consequences both at the time and much more so today.
Other examples, of course, of situations where it is difficult or impossible to determine if one is a foreign citizen might involve children of unmarried mothers who do not know the – have no way of finding out the citizenship of the father. There are also, of course, complexities arising in relation to adopted children but, your Honours, we need not linger on those problems. They are simply further problems that arise when one starts applying this sort of indefinite citizenship by descent.
There are two very short final points I wish to make. The first is this. When one applies a foreign law, one applies the whole of the law of that country including, we would submit, its constitutional law. We have an analogy for that in private international law where under the law of renvoi, one looks at the private international law of the foreign country.
There is no reason why one should not also look at its constitutional law and in this case, of course, under section 44 where one has a foreign law which on the evidence before your Honours may be unconstitutional because of a ground of unconstitutionality in Italy of unreasonableness, why should we be applying that law under section 44 when it would not be applied by the Italian courts? That would be a highly anomalous result.
Your Honours, the second final point I wish to make is this. It does not appear to be in dispute that a right to obtain citizenship on application does not give rise to a disqualification under section 44. If one reads the section, it simply does not talk about entitlement to obtain citizenship. It talks about entitlements to certain rights and it talks about citizenship, but not about an entitlement to citizenship.
That is relevant in this case for two reasons. The first is that the Italian legal opinion says that that is the true interpretation of the Act of 1912, so that all Senator Canavan had, if that is right, is a right to obtain citizenship and by coincidence that is what his mother told him he had. That is what she thought he had and what he thought he had. He thought that if he filled out the form and filed it he would become an Italian citizen.
We know that is not the case, but that belief, in my respectful submission, is quite clearly not a belief that one has citizenship. It is a belief that one does not. It is a type of belief that one does not. One cannot characterise a belief in entitlement to citizenship as being a belief that there is actual citizenship.
Now, your Honours, the conclusion is this. Sykes v Cleary laid down the interpretation of section 44 in relation to persons who had emigrated to Australia. My clients’ case, and some of the cases before your Honours, concerns a person born in Australia and, in my respectful submission, that is the area which this Court should be looking at in answering the questions concerning the exceptions to section 44. May it please the Court.
KIEFEL CJ: Yes, thank you, Mr Bennett. Mr Tokley.
MR TOKLEY: Thank you, your Honours. Your Honours should have a copy of our oral outline. I will be following that fairly closely in the submissions I make to your Honours.
Your Honours will know both from our written submissions and from our oral outline that we adopt the relevant parts of the Commonwealth Attorney‑General’s submissions in relation to what we call issue 1(a), which is addressed in our written submissions. It is accepted by the amicus that, if those submissions by the Commonwealth Attorney‑General are accepted, then Senator Xenophon was not disqualified and we say correctly not disqualified. That is all I need to say on issue 1(a).
In relation to issue 1(b), you have heard from my learned friend, Mr Bennett, in Mr Canavan’s matter, that where a slender connection exists between an individual and the foreign state that slender connection should not be recognised. Our written submissions address the question of the slender connection in paragraph 18 of our written submissions and we adopt the relevant parts of Senator Canavan’s submissions on those points. So if those are accepted, Senator Xenophon is also not disqualified.
In relation to the second of the issues that we identified in our written submissions, which is the question of reasonable steps, it is clear from the affidavit of Senator Xenophon – and I do not need to take your Honours to it because I know your Honours will have read it already – that he did not know he was what is called a “British Overseas Citizen”, that because of his background and the way he was brought up he always believed that he was the descendent of a Greek tradition – Greek Cypriot on his father’s side, Greek on his mother’s side.
As your Honours will know from his affidavit, he wrote to both embassies, first to ascertain whether he was in fact a Greek or Cypriot citizen and then, having received a response from them, to make sure that he could renounce whatever citizenship he may have had. In fact, he was told by both embassies that he is not and never was a Greek citizen.
One of the questions that arises in relation to the second of those two issues – that is, the reasonable steps matter as put against us – is the question of constructive knowledge. If that is relevant at all – and we say it is not for the reasons given in the oral outline on behalf of Mr Joyce that this is not an area of discourse that should bring in notions of constructive knowledge. We are not here dealing with the understanding of deeds or that area of the law where questions of constructive knowledge arose. But, if it is relevant at all, it is clear from Senator Xenophon’s affidavit that he was not aware of facts that would have put a reasonable person on notice that he held the British overseas citizenship status.
It is also clear from his affidavit that as soon as he found that out, which was in August of this year, he acted quickly to renounce any such status and that renunciation has been accepted. In fact, it is clear from his affidavit that the natural inference, given his background, his upbringing, for example, the fact that he was baptised in the Greek Church, was that he might be a Greek or Cypriot citizen. As he says, it never entered his mind that he might be a British overseas citizen.
The rest of the time I wish to devote to what we call argument number 3, or issue number 3, and that is whether those rights that are conferred upon the British overseas citizen – in fact, the status of the British overseas citizen – would answer the question or would fall within the words that the person is a subject or citizen or entitled to the rights and privileges of a subject or citizen of a foreign power.
A section of our Constitution is obviously a matter for the domestic law of this country. So, whatever the section means, it is ultimately a matter of Australian law and not foreign law. But, it is fairly clear from the words of the section themselves because it talks about the rights and privileges, for example, of a foreign power, that one has to have some regard to what is said by a foreign country about persons it or may regard as their citizens. So much is clear from cases such as Sykes v Cleary.
In one sense, I think, there are two perspectives that need to be borne in mind whenever one is reading section 44 of the Constitution. The first is that – and the primary perspective – we are looking at it through the prism or eyes of Australian law and, in particular, Australian constitutional law. But, the second aspect of it is that it refers to subjects or citizens of a foreign power which means that through the eyes of that perspective we look at what the foreign law is doing. But, nowhere does section 44, for example, say that the foreign law is to be determinative of that question, indeed it could not be as a matter of international comity. No foreign power could take from this Court or the Australian people the right to decide what its laws were and how they are to be applied by this Court.
Your Honours – I am not saying it is the only distinction that can be made - but there is a logical distinction between recognising a bestowal of status under foreign law on the one hand and determining on the other hand whether what is bestowed comes within section 44(i) of our Constitution. For a person to be disqualified, both aspects must be satisfied. In other words, a foreign law must confer the status of a subject or citizen upon a person or confer the rights and privileges of a subject or citizen upon such a person.
Secondly, that has to come within section 44 as interpreted or as construed by this Court. For section 44(i) to apply to disqualify someone, both aspects must be satisfied. In other words, if there is no bestowal of a relevant status that is recognised by Australian law, there can be no disqualification and that is relevant to issues 1 and 2 which we deal with in our written submissions. However, if some status is bestowed and recognised by this Court, the question is whether it comes within section 44(i), and if it does not there again is no disqualification.
Having made those introductory words, what I would now like to do is to give to your Honours the two planks of our argument about what we call the attenuated status of a British overseas citizen. The first is that as a matter of Australian law, when one thinks about the fact that the words “subject or citizen” with the history that the learned Solicitor‑General outlined yesterday, it is clear that the words “subject or citizen” started appearing at least as early as 1840 and certainly appeared in the 1867 British North America Act. So whoever drafted those words had in mind some idea of what they meant by “subject or citizen”.
It is equally clear that those words have been borrowed by way of precedent or template and incorporated into our Australian Constitution. But it is unlikely that whoever used the words first and those who have come after them adopting them did not have some idea in mind of what those words must mean.
Now, there is always a debate about whether something falls within the core meaning of a word and whether it is on the penumbra of the word. In our view, the core meaning that is attached to “a citizen” is someone who has a right of entry and a right of abode in a country. For example, we could not deport our own citizens. Indeed, many countries around the world could not deport their own citizens.
The second plank – and this is just by way of overview – is that when one looks at the United Kingdom law itself, the United Kingdom law itself draws a distinction between British citizens and British overseas citizens. So the second plank is this. If the foreign law itself draws that distinction, and if we have regard to that foreign law for the purposes of our Constitution under what I called the first bestowal aspect, then why would we accord – a rhetorical question – why would we accord to somebody who does not receive under that legal system a status that is not accorded to them? In other words, if the United Kingdom Government, for whatever reasons, sees fit to draw a distinction between a British citizen and a British overseas citizen, then that distinction should be recognised.
KEANE J: You are saying, are you, that a British overseas citizen is not a citizen of a foreign power?
MR TOKLEY: Yes, your Honour. That is the ultimate submission.
GORDON J: Is it limited to right of entry and abode or does it extend to the duty of allegiance?
MR TOKLEY: Your Honour, the core meaning of “a citizen” is a person who has a right of entry and a right of abode. There may be other aspects attached to citizenship by the foreign power but absent that core meaning the person is not relevantly a citizen. If I can make good that point and then take your Honour to the actual document, it is clear from Mr Fransman’s report that the British overseas citizen does not have the right of entry and does not have the right of abode in the United Kingdom.
So that is where, in one sense, the two planks of the argument overlap on the question of what we have called minimum characteristics of citizenship as recognised by Australian law, the right of entry and right of abode, and the requirement under UK law which separates a British citizen from a British overseas citizen.
It is also significant – I will make the point and then take your Honours very shortly to Mr Fransman’s report – that Mr Fransman addresses the situation of a British overseas citizen for the purposes of the European Union law, where it is accepted that in its relations with the European Union a British overseas citizen is not regarded as a British citizen or British national.
EDELMAN J: But neither of those expert characterisations has any real effect here, does it? Whether someone is a citizen or not under section 44(i) is not or should not be affected by whatever label is put on the person or the person’s rights by the foreign country. Whether the label “overseas citizen” is used or whether the label “European citizen” is used, it is the content of the rights that we are concerned with, not the label.
MR TOKLEY: Yes, your Honour, that is correct. The way in which section 44 operates is that it is for Australian law to look at the foreign law’s situation having regard to what we think are the minimum content rights that a foreign country would afford to that person in order for them to be a citizen within the meaning of section 44.
EDELMAN J: So why could it ever be relevant what the European Union’s position is about whether or not for the purposes of European law a person is a citizen of the United Kingdom?
MR TOKLEY: It is not relevant to the determination of whether the person falls within section 44. But what it illustrates is that you can have a body politic which considers that a British overseas citizen is not a British citizen, in the same way that we are asking the Court here to accept that a British overseas citizen is not a British citizen. Obviously, the United Kingdom not only accepts that position but that position is the product of the declaration that was made by the United Kingdom for the purposes of European Union law.
The mere fact that there exists, as we accept and must do, a juridical link between the United Kingdom Parliament in terms of its domestic law and the individual, outside of that sphere – and Australian constitutional law is outside of that sphere – the United Kingdom has not sought to make British overseas citizens citizens with the same rights and privileges of British citizens.
Your Honours, could I now take your Honours to the Fransman report. Your Honours will find that in volume 2, at page 732. Your Honours, I take your Honours to this report for several reasons. I am not going to read large slabs because I know your Honours will have already read it. I simply take your Honours to it to make some of the points that I mentioned orally. Could I first invite your Honours – and I will be fairly quick in this coverage – to go to page 746, in paragraph 69. Your Honours will see that Mr Fransman concludes that:
Senator Xenophon himself became a CUKC by descent ex lege at the moment of birth –
under the British Nationality Act of 1948 at section 5(1). If your Honours then go to page 747, paragraph 76, your Honours will see that:
On 1 January 1981 –
as a citizen of the United Kingdom and colonies:
without the right of abode in the UK and without a specified connection with a territory that on that date remained a colony . . . Senator Xenophon was automatically reclassified as a –
British overseas citizen, all of this of course being done without any notice to Senator Xenophon or without any application or action on his part at all. On page 753, paragraph 109, Mr Fransman says:
In my view, it is a juridical relationship between the individual and the UK.
Of course, one can accept that. The person has a status for the purposes of United Kingdom law, but that is not the ultimate question here. At paragraph 111:
In principle and practice, where a BOC is issued a BOC passport –
That is not the case here because Senator Xenophon has never applied and has never received a British overseas passport, so he is not entitled to British consular protection and other consular services, as stated at the end of paragraph 111.
Critically, at page 754, paragraph 113, one of the distinctions between a British citizen and a British overseas citizen is there set out. The British citizen has the right of abode, which includes “a right to enter and reside”, and a British overseas citizen “does not have the right of abode”. It goes on to say, relevantly, he or she:
can only enter the UK by satisfying the requirements of immigration control.
As Mr Fransman recognises at 754, paragraph 114, the first sentence:
This is not consistent with international law, as the UK has recognised.
Paragraph 115:
In 2002, new legislation in the UK extended British citizenship to almost all BOTCs, and also to BOCs . . . was limited to BOCs with no other citizenship of nationality.
Which, of course, Senator Xenophon had, so he was not caught by the 2002 legislation. Relevantly, at paragraph 117 on page 755, Mr Fransman says:
Accordingly, although BOCs are British nationals in British domestic law –
and we can accept that:
they – or at least those who have another citizenship or nationality –
and Senator Xenophon does:
do not have the right to enter and reside in the country of their nationality (the UK) and therefore lack one of the main characteristics of a national in international law.
KIEFEL CJ: The position of Senator Xenophon can be contrasted with the positions of each of the second and third respondents in Sykes v Cleary.
MR TOKLEY: Yes, your Honour.
KIEFEL CJ: Each of them had a right to enter and reside in the foreign country and I think a right, consistently with that, to hold a passport.
MR TOKLEY: Yes, your Honour, exactly. Thank you, your Honour. In fact, at paragraph 118 – again, I do not wish to labour points ‑ but I think, with respect, it is helpful ‑ the opinion says:
a BOC with, say, Australian nationality could be regarded as having a British status which falls short of a nationality in international law.
So to the extent to which international law is relevant, if at all, there is a query as to whether a British overseas citizen would be regarded as a national within international law, or could be regarded as a British national but one whose treatment violates international law. It is hardly likely.
It is very hard to say that such a person is entitled to the rights and privileges of a citizen if the country of which he is supposed to be a citizen violates international law in respect of his right to enter and reside in the country. At page 756, paragraph 121, Mr Fransman assumes:
that the duty of loyalty of a BOC by reclassification . . . is the same as the duty of loyalty of a person who is registered as a BOC ‑
We have not been able to find – it is not stated in his report and we do not know where the assumption comes from. We do not know why he would make the assumption. It is not evident from the actual legislation itself ‑ which is the British Nationality Act 1981, section 26 – that any such duty is owed and unfortunately it is not stated what is the basis for that.
It is fairly clear from what is said on page 757 – I will not bother to take your Honours to any particular paragraph – but there is a difference between a registered and an unregistered British overseas citizen. A registered British overseas citizen has taken the oath ‑ that appears on the previous page. A registered British overseas citizen would be entitled to get a passport and so on.
The conclusion that Mr Fransman reaches is at page 758 in paragraph 131 and he is basically saying there are two ways one can look at it but his view is that he:
is probably a British national in international law, although the UK is in breach of ‑ ‑ ‑
its international obligations. Just over the page at 759 and 760 is the example of where in the United Kingdom declaration in 1982 – this is at paragraph 134 – you will see at about point 5 of the page:
‘nationals’, ‘nationals of Member States’ . . . are to be understood to refer to:
(a) British citizens;
(b) persons who are British subjects by virtue of Part IV of the British Nationality Act 1981 and who have the right of abode ‑
which British Overseas Citizens do not.
I take your Honour Justice Edelman’s point, it is not used for the purposes of demonstrating that he is not a citizen for the purposes of section 44 of our Constitution. But, it does show that, in that particular context, the British Government draws a distinction between British citizens and British overseas citizens and that British citizens obtain a certain different legal treatment from British overseas citizens.
Your Honours, there are other matters which are mentioned in our written submissions. Your Honours should have been provided with a copy of an extract from Mr Fransman’s book on British Nationality Law. It is just a very slim part ‑ your Honours are now being provided with it. It is a very slim document. It is just a copy of the most recent edition of his book on British nationality law and the relevant part is the first paragraph on page 308 and it is the last sentence of that first paragraph.
Your Honours, we have also, I think, provided a copy of an extract from the case R v Secretary of State for Foreign and Commonwealth Affairs. It is otherwise called R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs. It is on your list of authorities. It is number two on our list, I am told. Your Honours, it is a very short point. It is in the dissenting judgment of Lord Bingham of Cornhill at page 491. It is simply paragraph 70 of the judgment. It is the quotation beginning about letter D:
“For my part I would certainly accept that a British subject enjoys a constitutional right to reside in or return to that part of the Queen’s dominions of which he is a citizen.
He there sets out references supporting that proposition. Your Honours, it is trite, in a way, that our Constitution and our legal system are inherited from the British. But, what was true in the 1800s in England was true for us as well.
GAGELER J: What are we to take from Mr Fransman’s evidence concerning any duty of loyalty that Mr Xenophon might owe to the United Kingdom?
MR TOKLEY: Your Honour, because it is only an assumption and because the reason for that assumption was not set out, it is of very little assistance to this Court. In other words, your Honours do not need to make a positive finding of fact that there is any such duty of loyalty.
GAGELER J: I am sorry, say that again.
MR TOKLEY: Because it is an assumption, it is only an assumption and the ‑ ‑ ‑
GAGELER J: There is no basis for us to find it as a fact, you are saying.
MR TOKLEY: Exactly, your Honour, yes.
NETTLE J: It is only a duty of loyalty if it is to the Queen rather than Queen and the right of the United Kingdom, is it not?
MR TOKLEY: Exactly, your Honour, yes. In fact, Mr Fransman goes through the distinction between the Queen and the right of the United Kingdom, Queen and the right of Australia, but what is clear from Mr Xenophon’s affidavit is he has never taken any such oath of allegiance and what we do not know, and unfortunately this is probably a fault on our part or may be a fault on our part, but when it was raised by the amicus in their submissions, put in terms that there is such a duty of loyalty, but it is only an assumption. There is nothing in the Act, the 1981 Act, which refers to that duty of loyalty.
GORDON J: Is not the point being made by Fransman building on 121 and then picked up again at 128 to 129 that which Justice Nettle just put to you and the distinction to be drawn is that there is no duty of loyalty owed to the United Kingdom.
MR TOKLEY: No, correct, your Honour.
GORDON J: That is the critical distinction to be drawn between that and other classifications of British citizenship.
MR TOKLEY: Yes, your Honour. Your Honour is right, and I think in part Mr Fransman makes the point at 125 that it is one thing to owe duty to an individual, it is another thing to owe a duty to the United Kingdom, and in the Hicks Case the Court of Appeal said that as he was not a British citizen he did not owe any duty of loyalty to the United Kingdom. I am sorry, your Honour. At paragraph 125, the distinction is drawn in the Hicks Case of the existence of a duty of loyalty to the state as opposed to the duty of loyalty to the individual, and there is no duty of loyalty on the part of the BOC to the United Kingdom.
GAGELER J: So does that mean there is a basis for us to find affirmatively that there is no duty of loyalty to the Queen in right of the United Kingdom?
MR TOKLEY: Correct, your Honour, yes.
GAGELER J: On the basis of the reasoning in the Hicks Case.
MR TOKLEY: Well, for several reasons, your Honour. First, there is no evidence of any such duty of loyalty being imposed by English law and none is referred to by Mr Fransman. Secondly ‑ ‑ ‑
GAGELER J: Being imposed by what?
MR TOKLEY: English law, United Kingdom law.
GAGELER J: Yes, thank you.
MR TOKLEY: Secondly, Senator Xenophon himself says, I have never taken any step as regards that. Thirdly, the form of oath which is taken by the registered British overseas citizen is clearly not one that he took as he is not a registered British overseas citizen. In any event, your Honours ‑ and this is the last case I will take your Honours to ‑ citizenship does not just focus or arise if there is a duty of loyalty because even aliens, aliens within the state, owe a duty of loyalty. That is trite law, but we will provide your Honours with one of the principal authorities on that called Johnstone v Pedlar.
GORDON J: What is the proposition we are to take from this case?
MR TOKLEY: Your Honour, that an alien, whilst in the territory of a state, owes a duty of allegiance for the time that they are there. So the minimum content of a citizen’s rights and duties cannot be just loyalty, because even an alien owes loyalty.
KIEFEL CJ: Where is that stated in the judgment?
MR TOKLEY: Your Honours will find it at page 272.
KIEFEL CJ: This is the House of Lords [1921] 2 AC?
MR TOKLEY: Yes, it is. Thank you, your Honour. Beginning at page 262, at page 272, at point 9, your Honour, in the judgment of Viscount Finlay:
An alien in British territory is normally regarded as a British subject for the time being in virtue of local allegiance ‑
At page 276, in the judgment of Viscount Cave, about point 9 again:
But so long as he remains in this country with the permission of the Sovereign . . . he is a subject by local allegiance with a subject’s rights and obligations –
At page 283, in the judgment of Lord Atkinson, at the very last line on that page, over to the next page:
A friendly alien resident in this country can undoubtedly be prosecuted for high treason . . . because it can then be averred that he acted contra ligentiæ suæ debitum : Calvin’s Case.
And then I will just give your Honours two more, at page 292, in the judgment of Lord Sumner, at about point 9, beginning with the words:
The matter, which he had in hand –
And then, finally, at page 297, in the judgment of Lord Phillimore, at about point 3:
From the moment of his entry into the country the alien owes allegiance to the King till he departs from it, and allegiance, subject to a possible qualification which I shall mention, draws with it protection, just as protection draws allegiance.
Can I give your Honours the reference, without taking your Honours to it, in Singh’s Case which, of course, is a judgment of this Court: Singh v The Commonwealth (2004) 222 CLR 322, in the plurality judgment at page 399, paragraph 202:
Just as an alien friend resident in Britain owed a temporary and local allegiance to the Crown, so too the British subject, voluntarily resident in the territory of a nation at war with Britain, came under obligations to the country of residence of a kind sufficient to classify that person as an enemy alien.
In the judgment of his Honour Justice Kirby, at page 419 at paragraph 272:
Like any other temporary member of the community, she owes local allegiance whilst in Australia.
May it please the Court, those are our submissions.
KIEFEL CJ: Yes, thank you, Mr Tokley. Yes, Mr Walters.
MR WALTERS: May it please the Court. By submissions filed before the first directions hearing, our clients, Mr Scott Ludlam and Ms Larissa Waters, conceded that at the time they nominated for the Senate they were citizens of a foreign power and accordingly disqualified and, indeed, each of them, upon learning that they had foreign citizenship, immediately resigned their seats and arranged for their positions to be referred to this Court. In doing so they complied with their duty to the Parliament and the Constitution and they have acted consistently ‑ ‑ ‑
KIEFEL CJ: Well, perhaps we could proceed into the legal argument rather than addressing us.
MR WALTERS: Certainly, your Honour. Our contention as to the construction is that properly construed section 44 operates to disqualify any person from being chosen or sitting in Parliament where they are a dual citizen unless they have taken all reasonable steps to renounce the foreign citizenship. A failure to take such steps would not disqualify them if reasonably diligent inquiries could not have disclosed their dual citizenship status, and to focus on the issue that is squarely raised in the argument in this case, a belief that one is not a citizen of a foreign power, ought not absolve a person from compliance with section 44 if one has knowledge of facts that in the mind of a reasonable person, taking a properly diligent approach to compliance with the Constitution, ought to call in question that belief and prompt proper inquiries.
KIEFEL CJ: How do you insert into the Constitution a requirement based upon the mind of a reasonable person and how are the courts going to deal with that as it arises in each particular case?
MR WALTERS: Well, the touchstone of reasonableness is one that courts often must deal with, so ‑ ‑ ‑
KIEFEL CJ: As a matter of urgency in relation to elections?
MR WALTERS: Yes. So, for example, in terms of knowledge, if one cannot know that one is a foreign citizen – and one can think of several practical examples, none of which arise in this case – but for example, suppose a person inquires of the appropriate embassy, “Am I a citizen of your country?” and the answer comes back, “No, you’re not”, a person is entitled to act on that and would not be disqualified for so doing if it later turned out that in fact the advice was incorrect. Or, take a situation where a person is elected to Parliament and after their election the foreign law is changed so that they become a citizen of the foreign power. We would accept that they would have a reasonable opportunity to deal with that in a timely fashion.
KEANE J: But in that sort of case a foreign law that purported retrospectively to make an Australian citizen qualified to stand for Parliament unqualified is precisely the sort of overreaching law that all the judges in Sykes v Cleary accepted would not be applied.
MR WALTERS: Yes, and we, with respect, accept that that is right.
KEANE J: But it has nothing to do with any question of knowledge or constructive knowledge.
MR WALTERS: Well, take another example. Take an example where a person does not know the fact that they have any foreign heritage, but they do. Unless they know that and they have the capacity to know that, there is not a basis for them to make an inquiry.
KEANE J: Even though, by definition, it is provable that they do.
MR WALTERS: Yes. Once that point is reached then reasonable steps would be required. But until someone has the primary facts, which would prompt inquiry, we accept that they cannot be held disqualified. But once they have the primary facts then, in our submission, when they come to the point of nominating for the Senate and stating in the nomination form that they are not disqualified by section 44, they have a duty not merely to be honest but careful.
GAGELER J: What are the primary facts?
MR WALTERS: There are two primary facts. In the case of Mr Ludlam the primary fact that he knew was that he had been born in New Zealand and had naturalised as a 19‑year‑old in Australia. Now, he subjectively did not know that that made him still a New Zealand citizen.
NETTLE J: He is covered by Sykes v Cleary, is he not?
MR WALTERS: Exactly, which falls squarely within Sykes v Cleary and he acted on the basis of that – whether it be obiter or whatever – that decision and that advice which had been authoritatively considered.
NETTLE J: So you are arguing in support of Sykes v Cleary in its application to a foreign‑born citizen?
MR WALTERS: Yes.
KIEFEL CJ: Well, except to this extent. The distinction, as I understand your argument, between your argument and that put for Senator Joyce by Mr Walker is that both of you say that the “is a foreign citizen” should be subjected to a test of knowledge. But your test of knowledge is limited to knowledge of certain primary facts, which we will put to one side, whereas Mr Walker was talking about knowledge of foreign citizenship itself. That is the distinction, is it not?
MR WALTERS: Yes, and the Attorney‑General ‑ ‑ ‑
KIEFEL CJ: Where in Sykes v Cleary does knowledge of primary facts ‑ ‑ ‑
MR WALTERS: In Sykes v Cleary, of course, the circumstances were that the two relevant respondents were parties who know that they previously held foreign citizenships.
KIEFEL CJ: Yes, I see.
MR WALTERS: So, the question of knowledge did not, in that sense, arise.
KIEFEL CJ: It was not in issue at all.
MR WALTERS: No.
EDELMAN J: Your test is really one which is asking for – or is examining whether, with reasonable diligence, a person in all of the circumstances of the relevant person, could have discovered that he or she was a foreign citizen in the same way, you say, as Sykes v Cleary asks whether a person in all of the circumstances of the relevant person could reasonably have renounced.
MR WALTERS: Yes.
EDELMAN J: You say it is just the same type of test but it is an additional issue based upon the foundation or question of reasonableness.
MR WALTERS: Yes. So, in our submission, it is a concomitant of the qualification that the majority imposed in Sykes v Cleary of reasonable steps to renounce. We say, in circumstances where one knows facts that are relevant to citizenship that includes reasonable steps to inquire.
KIEFEL CJ: Is this subjective knowledge of facts actually held or is this to be an objective test of knowledge that you should have had on proper inquiry or is it a combination where you start with some subjective knowledge and then there is an objective test overlaid to determine reasonableness.
MR WALTERS: In the case of Mr Ludlam, he, on any view, knew that he had been a New Zealand citizen.
KIEFEL CJ: So, he is put on notice – that is your point?
MR WALTERS: Yes. In the case of Ms Waters, she knew that she had been born in Canada. The question is, with those facts, what is reasonable to inquire? There are two common ways that citizenship is obtained. One is by place of birth and one is by descent. If one has knowledge of facts going to those questions – my father was born in Canada, or wherever ‑ ‑ ‑
KIEFEL CJ: Are we supposed to accept that these are matters well known within the community?
MR WALTERS: Yes.
KIEFEL CJ: We do not have any evidence of that.
MR WALTERS: We have ‑ ‑ ‑
KIEFEL CJ: Do we take traditional notice?
MR WALTERS: Yes. Your Honour, if the Court pleases, in our submission, we do because this has been a form of ‑ ‑ ‑
KIEFEL CJ: How, how?
MR WALTERS: ‑ ‑ ‑ this has been a form of citizenship – jus sanguinis and jus soli have both been well known.
NETTLE J: But we do not know that Canada had jus soli, do we, otherwise ‑ ‑ ‑
MR WALTERS: We do not know the specifics of each country and no one would expect persons to know that. But those broad categories are, in our submission, well known because of the fact that it has been around in the law for so long.
NETTLE J: Mr Walters, I am being obtuse about this but, given that your clients apparently accept that they were disqualified and have resigned, how does it avail either of them to put these arguments?
MR WALTERS: They were criticised at the time of their resignation for being negligent in failing to check before they found out their citizenship and before they nominated.
KIEFEL CJ: Is the purpose of your submissions to accept that?
MR WALTERS: Yes.
KIEFEL CJ: Was that all you wished to say then?
MR WALTERS: I wanted to go on in answer to his Honour Justice Nettle’s question. They were then criticised for having resigned but they maintained that they resigned properly and that it was appropriate for them, having made a mistake, to take responsibility for it.
KIEFEL CJ: Is it the proper use of this Court’s time to argue for a vindication of their correctness of their view?
MR WALTERS: We offered at the outset of the first directions hearing to pose answers to the questions.
KIEFEL CJ: I recall that, but the issue was at large. It was not just your clients who were affected by the Court making a consent order when the issue was at large.
MR WALTERS: I understand that, but having been asked to attend, we understood we were being invited to make submissions as to the proper construction of 44(i) and that is what our submissions are directed to. This Court cannot vindicate our clients in that sense, we do not ask that.
KIEFEL CJ: No, of course you cannot. I think you should continue on the basis that you are actually in the position of a contradictor. I now recall from the way in which it was approached during the directions hearings was that you were in fact taking a position of contradictor which affects some of the other parties, so we will proceed in that way.
MR WALTERS: If your Honours pleases - if the Court pleases.
GAGELER J: Are you asking us to find as a fact that your clients were negligent?
MR WALTERS: In our submission, the word “negligent” does not – is not ‑ ‑ ‑
GAGELER J: I think you used it, I may be wrong.
MR WALTERS: That was the criticism that was directed at our clients.
KIEFEL CJ: I think on your submissions it would be unreasonable ‑ ‑ ‑
MR WALTERS: Yes.
KIEFEL CJ: ‑ ‑ ‑ they were unreasonable.
MR WALTERS: So, having taken all reasonable steps, they made a mistake.
GAGELER J: I am sorry. What factual basis do we have to find that your clients acted unreasonably?
MR WALTERS: In the case of Mr Ludlam, he did not take all reasonable steps to renounce his citizenship, albeit that as a matter of his subjective knowledge he did not know that he was a New Zealand citizen, and we will come to the question of voluntary retention in due course, but it is not an act of will when one does not know something. It is not a helpful analysis to speak of voluntary retention of a status of which one is ignorant.
It is more helpful, in our submission, to consider, well, was this a mistake in circumstances where objective facts of which a person is aware should have overwhelmed that subjective knowledge, at least to a point – subjective belief at least to a point of prompting inquiries.
In respect of Ms Waters, she knew that she was born in Canada. She did not understand the Canadian law. She had an incorrect understanding of Canadian law. But she understood that, not having made inquiries about that – or she considered that not having made inquiries about that, she was a person who could not be said to have taken all reasonable steps as per the exception posited in Sykes v Cleary.
NETTLE J: No one disputes that she acted honestly.
MR WALTERS: That is right, and I do not think honesty is a question in respect of any of the persons referred, as we understand it.
BELL J: A distinction that is sought to be drawn in relation to natural‑born Australians which in the Commonwealth Attorney’s submission extends to Ms Waters, given the circumstances of her birth, albeit in Canada but to Australian parents – now, what is your submission in response to the contention that it is appropriate to draw a distinction between a person whose knowledge is that they have owed a duty of loyalty to another country and who becomes a naturalised Australian citizen, and a natural‑born Australian citizen who has no knowledge of the fact of an overseas citizenship?
MR WALTERS: We submit that there are different kinds of facts for the two kinds of citizen that could overwhelm the subjective belief that a person has that they are not a citizen, but it is a question of what those facts would reasonably require.
BELL J: But why is it an object of 44(i) to disqualify a natural‑born Australian who happens to either be a citizen of a foreign state or be entitled to the rights and privileges of such a person?
MR WALTERS: To answer that question, in our submission, involves looking at the purpose of 44(i). Now, what is being put by those who have preceded us is that it has one purpose, a purpose which we agree with but not, we say, the only purpose, and that is the purpose of preventing split or divided allegiance. Now, we agree that that is obvious; that is clear in the provision. But, in our submission, the purposes, when one looks at the text, context, history of the provision, go beyond that.
So, first of all we submit that there is the purpose of preventing the imposition of obligations on parliamentarians by a foreign power, and that was referred to by his Honour Justice Brennan in Sykes at 109 where his Honour referred to a duty “reciprocal to the status”.
The second purpose that we submit 44(i) serves is removing perceptions of divided or potentially divided loyalty and, if I could put that submission in a converse way, it is reinforcing the confidence of the people in the Parliament and that is something that is, in our submission, behind 44(i) as well.
We also submit that this is a provision which asserts Australian sovereignty. It is a provision that requires that the government of Australians will be by Australians and only by Australians and that question of sovereignty and the purpose of dealing with Australia as a free and independent nation has found its way into the authority Sue v Hill at paragraph 48 and also in the judgment of Justice Deane in Sykes at 121.
That purpose can also be seen, in our submission, to be one explanation for the qualification in Sykes because in asserting Australian sovereignty Australia is not to be beholden to a foreign power that seeks to, as it were, override that sovereignty by according a status that is – I think various terms have been used but we will say perverse or beyond what would be normally expected in the case of a foreign power according citizenship.
Finally, in our submission, the drafting of this provision is also intended to promote certainty in identifying categories of disqualified persons and this provision is referable to objective status “is a subject or a citizen of a foreign power”. Now, in section 34 the drafters did draw a distinction between naturalised and natural‑born subjects which, in our submission, bolsters the view that they deliberately did not do so in respect of section 44. So that, in our submission ‑ ‑ ‑
KIEFEL CJ: But your argument does not depend upon it simply being the fact under foreign law that someone is a foreign citizen. Your argument goes against that because you accept that someone could still in fact be a foreign citizen under that foreign law but so long as they acted reasonably it does not matter.
MR WALTERS: Yes.
KIEFEL CJ: How does that fit into your argument?
MR WALTERS: Because that is the qualification of taking reasonable steps that Sykes v Cleary ‑ ‑ ‑
KIEFEL CJ: That was to renounce, though.
MR WALTERS: Yes.
KIEFEL CJ: This is reasonable steps to find out.
MR WALTERS: Well, one cannot renounce unless one finds out.
KIEFEL CJ: I think that is Mr Walker’s argument. You have to know. The question is, you say, you only have to know a little bit.
MR WALTERS: You have to act reasonably in finding out. So our submission is that negligence in complying with one’s constitutional obligations should never produce a more favourable result than diligence.
NETTLE J: Mr Walters, was that purpose inherent in the December 1897 draft or did it only enter upon the redraft in March 1898?
MR WALTERS: The various purposes that we ‑ ‑ ‑
NETTLE J: The purpose of avoiding negligence, as you put it, in ascertaining that one is a foreign citizen by descent.
MR WALTERS: I am not sure that we said that was a purpose but that is our reading of what is required having regard to Sykes v Cleary, yes.
NETTLE J: Was that there in the December 1897 draft or did it only incept in March of 1898?
MR WALTERS: Of course the 1897 draft was different in that it required a voluntary act to obtain the citizenship.
NETTLE J: Just so. What is the answer?
MR WALTERS: I am not sure if I am answering your Honour’s question, but we of course draw support for our submission because the change is to an objective status rather than a subjective act.
NETTLE J: So did that change occur only with the change from the December 1897 draft to the March 1898 draft?
MR WALTERS: Yes. In our submission, in the 1897 draft one had a requirement to take a particular act, and by the 1898 draft the drafters had a different objective status. In our submission, they are to be intended to have meant that that would have a different result.
NETTLE J: Given the history through which the Solicitor took us yesterday, would you accept that that was a change of profound consequence?
MR WALTERS: In our submission, it was an important change. To deal with that, we would say, firstly, that it is one thing to go over debates, in accordance with Cole v Whitfield. We accept that that can be done. This is not a case where one goes to the debates to, for example, learn that there was a particular understanding of the term “citizen”. None of that has been done. The subject matter was clear from the debates. In fact, there is very little debate about the substance of the provisions. Cole v Whitfield’s proposition does not extend, in our submission, to taking one to memoranda or draft constitutions with handwritten notes by persons who were not immediately part of the process.
Whilst it may be said that, for example, Mr Barton, as his Honour then was, said these are drafting changes ‑ I think referring to a whole number of changes in globo ‑ that was his subjective view, and the convention as a whole was required to consider it.
If we could take the Court to Tasmania v Commonwealth because we can understand that our friends would invoke so eminent a founding father as Mr Barton, but after Mr Barton became Sir Edmund Barton and was the first puisne judge of this Court, he sat on Tasmania v Commonwealth and considered the argument that was put in that case, that earlier drafts of the sections there being considered were to be adopted because they provided a better outcome. If I could take the Court to that and to the judgment of Justice Barton - perhaps at 350 would be the best place to commence.
GAGELER J: So, are you saying that this interpretative methodology that was applied in 1904 remains the methodology of the Court?
MR WALTERS: This aspect of it would be helpful, in our submission.
GAGELER J: It would be helpful to go back to?
MR WALTERS: The aspect that I want to develop through this quote is relating to whether one can go to earlier drafts in preference to the words that were actually put to the people.
EDELMAN J: Are you suggesting one cannot go to earlier drafts to determine what the words put to the people were meant?
MR WALTERS: One can do that but I wanted to take the Court to what Justice Barton said in relation to that. Perhaps it is helpful to read from ‑ I think about the middle of the page, a little below middle, Justice Barton says this:
Pausing for a moment, I must say in passing that we have been urged to modify what would seem to be the plain meaning of the words of three sections of the Constitution by the fact that in 1891 there were financial provisions, considered by the plaintiff’s counsel to favor their contention, inserted in a draft bill by a Convention.
His Honour goes on to some of the history and then at about seven lines from the foot of the page, his Honour says this:
Both these provisions lost their places during the final consideration of the draft bill to be submitted to the people, which was so submitted in New South Wales, Victoria, South Australia and Tasmania, in 1898, and which, so far as the financial arrangements are concerned, is identical in terms with the Constitution itself. It seems to me that the argument that an expression put by an earlier Convention into a draft Constitution is to influence us towards the construction of this Constitution which is afterwards in operation, acts as a two‑edged sword, because the abandonment of the earlier provision shows if anything that the Convention had relinquished the idea of submitting it to the people, whose approval was by law essential. The successive alterations of the drafts seem rather to point to the view, not that the final provisions are to be interpreted in the same sense as those struck out of the draft, but that the first intentions were given up, and that entirely different intentions, to be gathered from the language of the Constitution, are those by which we are to abide.
So, that ‑ ‑ ‑
NETTLE J: His Honour is not looking at the Convention Debates though, is he? He is looking at a succession of drafts?
MR WALTERS: Yes.
NETTLE J: We are looking at – we have looked at – Convention Debates to show the profundity of the alleged change; not a word was mentioned about it in the course of debate.
MR WALTERS: Yes, but in our submission what the Court is being asked to do is to apply the present section 44 as if it were the same as its predecessor, and it plainly is not.
NETTLE J: It is plainly not in terms.
MR WALTERS: Yes.
NETTLE J: The question is whether it was its purpose to give the same effect.
MR WALTERS: Yes, and we have been provided with a number of excerpts from the debates in a folder from the – filed on behalf of the Attorney‑General, and I wondered if I could take the Court to tab 13. This is the final time – it is the debate of 20 January to 17 March 1898 and the passage that I wish to take the Court to concerns the debate on 16 March 1898 and what is apparent is that the convention are now looking at – so if I could take the Court to page 2443, this is about two‑thirds down the page on the right‑hand side. So first of all perhaps the start of where the Chairman speaks on the right‑hand page:
I have to report to the committee that we have an instruction for leave to consider the Drafting Committee’s suggested amendments, which are in print, and to adopt them either in globo or seriatim –
And then further down:
I shall put it that all the amendments of the Drafting Committee, down to the one which an honorable member wishes to discuss, be agreed to. We can then consider that particular amendment, and can continue the same course of procedure –
Now, there are some hundreds, I think it is, of amendments at this point. Then over the page, or on the next page, on 2444, Mr Barton says on the left‑hand page about a third of the way down:
That is subject to what I have explained—that is to say, if any honorable member challenges a particular amendment, the Chairman will only put the amendments down to that point.
Then Mr Barton further says after Mr Symon speaks:
Then I shall suggest challenging the amendment until the information is given.
Then Mr Symon says towards the foot of that column about halfway down that paragraph:
Honorable members must realize that we have now reached a very serious stage in our proceedings. We are all anxious to get through our work as quickly as possible, but the Bill is now to pass from our hands for the last time.
Then over on the right‑hand column, Dr Cockburn from South Australia is speaking and says about 10 or so lines down:
A heavy responsibility rests, not only on the Drafting Committee, but on every member of the Convention; and if any mistake is made now, it must remain for all time. The way in which the amendments have been made reflects great credit on the Drafting Committee, but some of them come very near to alterations in substance, and every opportunity should be afforded to honourable members of calling attention to them.
Then Mr Isaacs expresses concern ‑ ‑ ‑
EDELMAN J: This is talking about different amendments. This is talking about the amendments that were made over the very, very short period of time before the final revision.
MR WALTERS: It includes a large number of amendments. I am not sure that it includes this amendment but it is part of what were originally provided for. The point of this is that over the page at 2445 ‑ ‑ ‑
GAGELER J: Just tell us what you are getting out of it.
MR WALTERS: Yes. The substance of this is the convention were taking this seriously. They were not in a position and did not discuss in the convention all aspects of the changes that were being made. The change in respect of what is now 44 occurred in the drafting committee. We do not have the ‑ ‑ ‑
GAGELER J: Yes, but none of these passages that you have taken us to are in any way referring to the relevant change.
MR WALTERS: No, but it is an exposition of the process, that is all. That is our point. They were taking it seriously but they were conscious that they could not debate in session everything that was before them.
KIEFEL CJ: But rather that each member would have to raise a particular question.
MR WALTERS: Yes.
KIEFEL CJ: But the point is it obviously was not here.
MR WALTERS: That is right, but the form is different and, in our submission, should be taken to have been effective to achieve a difference.
GAGELER J: Your submissions would have more force if you were asking us to take a literal interpretation of section 44(i), but you are not.
MR WALTERS: Well, in our submission, we have to comply with what Sykes has said which already imposes a qualification.
NETTLE J: Not on natural‑born Australian citizens it does not.
MR WALTERS: That is true.
NETTLE J: That is what we are talking about.
KIEFEL CJ: Yes, what you are adding is quite new to what was said in Sykes v Cleary because that was not addressed at all. The position of natural‑born Australians was not addressed.
MR WALTERS: Absolutely, but what we say is that the section refers to “any person” and does not draw a distinction between natural‑born and naturalised citizens.
KIEFEL CJ: But elsewhere in the Constitution there is ‑ ‑ ‑
MR WALTERS: It does.
KIEFEL CJ: Yes, quite. And I should qualify what I just said ‑ the majority in Sykes do not refer to natural‑born Australian citizen but of course Justice Deane does.
MR WALTERS: Yes. But, in our submission, the provision – in answer to your Honour Justice Gageler’s question, which I am not sure I had answered, we do not posit a completely literal interpretation because we are already required to have a qualification by Sykes v Cleary.
NETTLE J: You are not required by Sykes v Cleary to have it in relation to a natural‑born citizen. Why should Sykes v Cleary be extended to the latter category?
MR WALTERS: The concept of reasonable steps – well, first of all, reasonable steps to renounce applies to both categories. It seems to be accepted by the Attorney‑General in the way that the test is put that if one has a subjective appreciation of – I think the term is “a sizeable prospect” that one holds foreign citizenship by descent, one should take reasonable steps to renounce. And we do not agree with that test. But it seems to be common ground that at some point a person who knows they have foreign citizenship by descent must take reasonable steps to renounce.
KIEFEL CJ: But on one view Sykes v Cleary does not say that either the second or third respondent in that case were put on notice and that questions of reasonableness – it just did not arise. It did not arise because they actually knew that they were foreign citizens. One of them might have had a belief, but that was overcome by naturalisation. But so far as the Court was concerned as a basis for the way in which it dealt with it, there was just no issue about the fact of their knowledge about them being foreign citizens. So I do not quite understand how you can intrude into this the questions of reasonableness. Surely you cannot work backwards from the view that their Honours took about what would be reasonable or not, that reasonable steps were necessary to renounce to say that the question of knowledge, which their Honours did not address, has to be subject to the same sort of inquiry. I just do not know how you get there, Mr Walters.
MR WALTERS: First of all, in relation to Sykes, in the case stated by Justice Dawson, which is set out prior to the judgment, at paragraph 34, which is at page 85 of the judgment, at about point 7 on the page ‑ ‑ ‑
KIEFEL CJ: Sorry, where are you reading from?
MR WALTERS: From page 85, your Honour.
KIEFEL CJ: Of Sykes v Cleary?
MR WALTERS: Yes.
KIEFEL CJ: I think that is ‑ ‑ ‑
MR WALTERS: It is in the case stated.
KIEFEL CJ: It is in the case stated, yes.
MR WALTERS: Yes. So, at paragraph 34, which is about point 7 on the page, what was stated was:
It was first brought to the attention of the third respondent –
that is to say Mr Kardamitsis:
that he might not be qualified to be a member of the House of Representatives pursuant to s. 44(i) of the Constitution after he was nominated. This occurred during the Election campaign when he was asked questions by members of the media after the matter was raised by the petitioner.
KIEFEL CJ: He was told further things about how there were procedures available to deal with that.
MR WALTERS: Yes.
KIEFEL CJ: The point is, by the time it came before their Honours in Sykes v Cleary he had not done any of those things, he had not acted upon that information.
MR WALTERS: Yes, but the critical time, as the majority held, was the time of nomination. Could I also take the Court to the argument that was put on behalf of Mr Kardamitsis at page 89.
KIEFEL CJ: Is that correct, though, that the critical time in terms of an election and validity of course will be nomination but in terms of the question their Honours were addressing in the majority was ‑ as was referred to yesterday, page 102 ‑ based upon the fact that the second and third respondents may wish to stand for the next election.
MR WALTERS: Yes. We accept that that is there. His Honour Justice Brennan and his Honour Justice Dawson appear to have dealt with it retrospectively rather than prospectively.
BELL J: And appear to have understood that was the approach of the plurality with whose orders they agreed.
MR WALTERS: Yes. So it is instructive to look at what the argument was for Mr Kardamitsis because it bears some similarity to the argument that is put here. Now, Mr Bell, as his Honour then was, put at 89:
The purpose of s. 44(i) is to ensure that the Parliament is comprised of persons whose allegiance is to Australia and who, so far as possible, cannot be subjected to improper influence by a foreign power. This interpretation focuses on the substantive and present status of the person and not on his purely formal or past association with a foreign power. Thus only a person who is presently subject to a continuing allegiance to a foreign power brought about by some voluntary act, or one whose real and effective nationality is foreign, would be disqualified.
Now, that argument, in our submission, is very similar to the argument that is put here and it found no ‑ ‑ ‑
KIEFEL CJ: But the majority did not deal with it, did they?
MR WALTERS: Well, it found no support in their reasons.
KIEFEL CJ: Well, you mean it does not appear in their reasons, it is not dealt with.
MR WALTERS: Well, they implicitly reject it because their reasons proceed on the basis that he had not taken all reasonable steps ‑ ‑ ‑
KEANE J: Justice Deane accepted the argument.
MR WALTERS: Yes.
KEANE J: If the majority had accepted it, they would have reached the same conclusion as Justice Deane.
MR WALTERS: Yes, your Honour, that is our point.
NETTLE J: But the question is should their acceptance of it in relation to a foreign‑born citizen now be extended to a natural‑born Australian citizen?
MR WALTERS: In our submission, there is no reason in principle for it to be applied differentially between those categories of citizen.
NETTLE J: Given that their Honours decided this case without the benefit of the historical context through which we have been taken and that possibly they might have decided otherwise had they been so advantaged, is there not reason to pause to think that it is a question which should be extended to a new category?
MR WALTERS: The difficulty is this, that it seems to be accepted by the Attorney‑General that if one has some knowledge, and query where the level of knowledge is, of foreign citizenship status, then, albeit that one is born in Australia and one has it by descent, then one still has the obligations under Sykes v Cleary.
NETTLE J: Put aside the Solicitor’s submissions which, of course, have not been accepted and may not be ‑ ‑ ‑
MR WALTERS: Yes.
NETTLE J: ‑ ‑ ‑ what then?
MR WALTERS: Well, in our submission, if Sykes v Cleary applies, in terms of the qualification then it must apply by way of reasonable steps to any person who has knowledge of facts which ought to have prompted proper inquiry.
In our submission, in terms of the practical application of section 44, candidates/nominees for the high office of parliamentarian have a duty at a general level to comply with the Constitution and that crystallises into the specific act of asserting in the nomination form that they are not disqualified by section 44(i). So their mind is directed to it and it is a simple task and not one that should be lightly overlooked to make reasonable inquiries in satisfying oneself that the answer given – which is going not just to the Electoral Commissioner but, by extension, to the electorate – is not merely honest but accurate or, shall we say, that the person is diligent to be accurate or careful to be accurate.
So, in our submission, if one is to give a coherent interpretation to the section, as it has been applied through Sykes v Cleary – and, of course, that case was expressly relief upon for the result in Sue v Hill by the majority – then, in our submission, it is difficult to see how one can avoid a situation where, if a person knows facts that relate to potential conflict under section 44 and does not take steps to deal with that, has complied with what was laid down as the requirement by the majority in Sykes v Cleary and, of course, followed by Sue v Hill in answering the questions in relation to Senator Hill.
GAGELER J: So, you posit the need in the application of section 44(i) for a subjective inquiry into the state of mind of the candidate – that the subjective inquiry is not an inquiry into their actual knowledge but it is an inquiry into their knowledge of primary facts which might lead a reasonable person – what, to make further inquiries?
MR WALTERS: Yes. So, in our submission, it is uncertain to make the inquiry - the appreciation that a person would have – that a person actually had in respect of the significance of those facts.
EDELMAN J: Why draw a line between primary facts and all of the facts? Why not simply say that it is what a reasonable person in the position of the relevant person knows, including all knowledge of whether the person is a citizen?
MR WALTERS: Well, I suppose we were concerned about the test of a subjective belief in the prospect of a citizenship being too convoluted a test which was we were concerned about what the Solicitor‑General put in relation to that. But if one is – in the present case we have situations where there are a number of conversations that people had with their parents, for example, over many years, and if a person knows, for example, that their father was born in – I do not know, Hong Kong – another country, anyway, now, the person may not know that they have the relevant foreign citizenship. Does it turn on half‑remembered childhood conversations as to the significance of that fact or does it turn on, well, knowing that, did you make inquiries from someone who could authoritatively tell you?
EDELMAN J: I understand that, but your distinction, if one were drawn, between primary facts and all the remaining knowledge would mean that somebody who knew that they were a foreign citizen but knew in circumstances where a reasonable person knowing the perhaps very remote primary facts would not know, that person would not be caught.
MR WALTERS: Yes, and I do not want to submit that. I do not want to submit that. We submit that it is a question of what is reasonable in the totality of the situation. But a person is not saved by having an appreciation that was inadequate. That is really what we wanted to say. In our submission, the test that we pose is more certain. In all cases, foreign law will have to be considered. To put it in the converse, if one believed that one was a citizen of, taking a country at random, Germany, and nominated, it would not matter at all unless one actually was a citizen of Germany.
So in all cases one would have to determine the foreign law anyway. What is being posited is this further step of whether someone subjectively appreciated the significance of what they knew is, in our submission, adding to uncertainty whereas if our contention is correct, namely, what is reasonable for a person to do having regard to what they knew, it adds to the level of certainty.
It is a relatively straightforward matter for someone to make inquiries. They might get good, bad answers; there might be all sorts of complications or “quirks” is the term that has been used. But that is in the nature of foreign citizenship. A person does not have to understand the foreign law; they just have to make inquiries of someone who can tell them, assuming they reach the point where it was reasonable for them to make such inquiries.
KIEFEL CJ: We have distracted you somewhat. Where are we in relation to your outline?
MR WALTERS: I think one way or another we have in fact covered a number of points that we wanted to deal with, albeit not in the order that we had envisaged. Perhaps we could just say in conclusion a couple of matters. I have addressed certainty to some extent but, in our submission, certainty is an important aspect of coming to the correct construction of the provision and certainly, as we understand it, all parties for different reasons advance that their interpretation provides greater certainty.
Our submission is that the Commonwealth’s approach adds another layer of inquiry to the inquiry that will, in any event, need to be taken in respect of the foreign citizenship. In our submission, a proper construction of section 44 is one that maximises the certainty and, as your Honour Justice Nettle said in Culleton ‑ I do not think I need to take the Court to it, but it is at paragraph [57] and that was dealing of course with 44(ii) rather than 44(i) :
There is no room in requirements of that kind for contingent qualification –
in a provision like this. The electors demand certainty that, at the date of nomination, a nominee is capable of being chosen.
I think I have dealt with the issue of voluntary retention but, in our submission, that is an unhelpful concept because it does not deal with a case like Mr Ludlam. He did not know that he was a New Zealand citizen, notwithstanding that he had earlier had that citizenship to his knowledge. It is not helpful to talk of this as an act of will; rather, in our submission, it is more helpful to consider this as him being mistaken as to his citizenship status. Then the question is well, was it a reasonable mistake? Looking at whether it was a reasonable mistake, one looks at the fact, amongst other things, that he was previously a New Zealand citizen. Sykes v Cleary provides the answer to that - it is not a reasonable approach.
GAGELER J: What about Ms Waters? It does explain her case, does it not, that is to say, realising that she was a Canadian citizen, she immediately took steps to renounce it.
MR WALTERS: That is right.
GAGELER J: In no way could she be described as voluntarily retaining that status.
MR WALTERS: That is right.
GAGELER J: So there is a distinction between your two clients.
MR WALTERS: It is.
GAGELER J: Which can be explained in terms of voluntary retention.
MR WALTERS: Yes. That could be explained in those terms but, in our submission, given that it does not explain – the concept is, in our submission, strained to talk about voluntary retention. Certainly she did not voluntarily retain it once she knew she had it, so one can say that, but at the same time I can say she was actually mistaken as to her status. Then the question is was she reasonable in that mistake?
We agree with the learned Solicitor‑General as to the outcome for Mr Ludlam, but we do not share the same pathway to that destination, but the outcome is the same. We say that he was disqualified because he was on notice of facts that would put a reasonable person on notice of the risk that they held foreign citizenship, and he failed to make proper inquiries.
KIEFEL CJ: Ms Waters was also on notice.
MR WALTERS: Yes, because of the place of her birth.
KIEFEL CJ: To two Australian citizens who had no residency status.
MR WALTERS: Yes, and she was wrong as to the effect of that. She honestly held it and no one suggests otherwise, but she was mistaken in the same way as people who thought that naturalisation extinguished their foreign citizenship. That was a mistake of a similar character, in our submission.
If we could just make clear, if it is not already, that we have no submissions to make in relation to the submission for Senator Xenophon that his UK status was not citizenship within the meaning of section 44(i) and in our submission the text of section 44(i) is relevantly straightforward and it ought not to be given a tortured meaning at odds with its text, context, purpose and history. Those are our submissions, if the Court pleases.
KIEFEL CJ: Yes, thank you, Mr Walters. Yes, Mr Merkel.
MR MERKEL: If the Court pleases, we have handed up our outline of oral submissions. My learned friend, Mr Gleeson, will be addressing the Court on the submissions in paragraphs 2 to 16 and I will be addressing the Court on paragraphs 17 to 27. If the Court pleases.
KIEFEL CJ: Yes, Mr Gleeson.
MR GLEESON: Thank you, your Honours. Your Honours, at the outset it should be clear from our written submissions but on the matters that have just been discussed we do adopt the knowledge element as a gateway which a person must possess before they can be subject to the disqualification in section 44 or section 45. Therefore, we do not adopt Mr Walker’s version of it, nor do we adopt Mr Walters’ version of it.
A proposition we seek to put is more simply as indicated by paragraph 3 of our outline that Sykes v Cleary decided a series of matters. When we say “decided”, we accept that the particular factual case in Sykes v Cleary was a foreign citizen by descent not a foreign citizen by birth and the only Justice who expressly dealt with the category of foreign citizen by birth was Justice Deane, clearly in dissent when he said that. However, it would be our submission that the way in which the majority constructed their reasoning was in terms of general principle which was applicable to persons who were foreign citizens by whatever means.
So, in that sense, the propositions we submit are decided by the case, which I can deal with first at a level of generality and then take your Honours to the case to support them, is that the first proposition, and I will include the word “generally” in it, generally section 44(i) requires the Australian court to look at the status conferred on the person by the laws of the foreign power to determine whether they are a subject or a citizen of that foreign power.
That question is capable of two answers. If the answer is no, that is the end of the inquiry. If the answer is yes, then generally that person is disqualified by the section subject to the existence of any relevant exception to what is a rule of recognition. Your Honour Justice Edelman asked whether this is simply teasing out within Australian law what are the limits of the rule of recognition or whether implied exceptions are being read in. We would put it the former way.
So that is the general rule, and the second general proposition, and we submit it has not been given sufficient attention in argument, is that the ordinary consequence of the general rule is a straightforward and simple one. If you do hold the status of subject or citizen under foreign law, the ordinary way to overcome that disability of dual allegiance is to renounce effectively under the foreign law that status before you seek to stand for election.
One of the critical differences between us and some of the other parties here is that the renunciation required by Sykes v Cleary, whether it be the complete renunciation which would be the ordinary case, or whether it be the doing everything possible but not being let out which is the Sykes v Cleary exception is something to be done, required by the section, before the critical date for qualification or disqualification is assessed.
Your Honour Justice Edelman asked a question what about a foreign country where it took some period of time for their administrative procedures to be completed. Whether a two or three month delay took one beyond the reasonable steps, the question would of course depend on all of the circumstances of the case. However, our proposition is the person who is prima facie disqualified is effectively bound by the section to do all those things sufficiently in time ahead of the relevant date so that they can either be completed effectively under the foreign law, which is the primary position, or the person can at least say “I have done everything that could reasonably be done under that foreign law and the failure of that country to release me now falls into the category where Australia says that should not prevent you having the opportunity to stand for Parliament and the people having the opportunity to consider you”.
EDELMAN J: So, the first formulation does add something to Sykes v Cleary, though. It adds to it that all reasonable steps to renounce must be taken within a reasonable time before the election.
MR GLEESON: Well, that, we submit, is what follows from Sykes v Cleary because the case was considering – and there has been some debate about this – but we would submit it was considering the position at the previous by‑election. What the Court or the plurality said in the passage that has been referred to was simply a statement as to why it was not moot to consider that question in respect to the past, but the only jurisdiction of the Court was to consider the question in respect to that past by‑election. The Court held that you must be qualified at the date the election process commences, and so we would submit the ruling of the plurality is as at the date the election process commenced because no steps had been taken under the foreign law, let alone reasonable steps.
KIEFEL CJ: Did not the majority, however, answer the question (c) “Does not arise”, rather than answering it directly?
MR GLEESON: They answered it that way correctly, with respect, because in the light of the earlier answer ‑ ‑ ‑
KIEFEL CJ: Because of the light of the ‑ ‑ ‑
MR GLEESON: If the conditional nature of the question could not arise the election was ‑ ‑ ‑
KIEFEL CJ: But that meant they need not have addressed the question at all.
MR GLEESON: But what the majority indicated, we would submit, in their reasoning is there was a good reason why it was appropriate to consider the question but, having done it, their reasoning was addressed to the matter in which the Court had jurisdiction under the Electoral Act, and the matter which the Court had jurisdiction in was what was the position of the second and third respondents at the date of the former by‑election.
Now, contrary to Mr Walker, we would submit the Court should not be treated as giving some form of advisory opinion. That would have been not an exercise of judicial power, clearly enough, nor should the Court be treated as having in effect pronounced upon what might be the position in respect to the next by‑election, because that matter by definition could not be before the Court.
So, Mr Walker accepted it is very clear in the other judgments in the majority that they were looking to the position at the past date. We would submit the only fair reading of the plurality is they also were looking at that position at the past date and so, when your Honours in Sykes v Cleary come to look for yet another time at, for example, page 108, when the decision is given in the application paragraphs and it is expressed in the past tense, the second respondent has “omitted” to take a step available under Swiss law, and likewise for the third respondent, we submit that is to be read as referable to the position as at the date of the previous by‑election.
BELL J: Indeed, as at the date of nomination.
MR GLEESON: At the date of nomination for that by‑election, and so ‑ ‑ ‑
BELL J: Yes.
KIEFEL CJ: Accepting all of that, is it not also the case that if one reads the – at page 102 of the joint judgment when their Honours are first addressing the question, they say:
As the second and third respondents may wish to stand for the next election . . . [we] should answer this question.
That is to offer guidance in relation to the matter that, as you correctly point out, their Honours have addressed in relation to whether or not they would have been qualified, and perhaps by providing some guidance as to what steps need to be taken to correct that position because there is no jurisprudence on this. Their Honours did not need to do that. They could have just said not necessary to answer and moved on.
MR GLEESON: Your Honours, we see some similarity between this and the approach the Court has taken in certain migration cases such as perhaps M68 where a question in a sense has moved on but the Court has said, for instance, determining whether past attention was unconstitutional is not moot because of a sufficient prospect that someone might consider such a course again.
Now, here the Court has said there is a sufficiently good reason in the future to state the principle by which we answer the question about the past, and what they indicate is we should answer this question. So all of their reasoning, we would submit, is directed to, as your Honour Justice Bell says, the date of nomination at the past election.
If that is a correct reading, then, coming back to your Honour Justice Edelman’s question, we say it is not an extension of Sykes but it is the essence of Sykes that the ordinary way to overcome the disability and the preferable way is as per our paragraph 3(b) which is to do whatever has to be done and do it effectively.
The reason that is the ordinary and preferable way, which comes to the heart of this case, is that the problem that is being seized upon by section 44(i) is that if you hold the status of foreign citizen that conveys that it has inherent in it the duty of allegiance to the foreign power and it is the existence of that duty of allegiance which creates the potential or the risk for the conflict with your primary undivided loyalty to Australia, and this is where we depart from the knowledge parties.
The decision that has been taken in the very language is to say we seize upon the holding of the status as the disqualifying event because, as Justice Brennan said, we know from the systems of law around the civilised world status carries with it allegiance on the one hand as well as carrying rights of abode and rights of protection on the other. So, the ordinary way to remove the problem is to remove the status, and that is the preferable and desirable way, commended we would say by Sykes.
Our third proposition from Sykes is that, accepting that section 44(i) asks a question of Australian law, the inquiry does permit of circumstances and we would use Justice Brennan’s language “dictated by public policy” although it may now be more appropriate to speak of it as constitutional necessity – that is, qualifications necessary to sustain the system of representative government established by the Constitution whereby the effect will not be given unqualifiedly to the foreign law.
Those circumstances of non‑recognition, we would submit fall into two broad categories. The first which seemed agreed between the parties is foreign citizenship laws which are exorbitant and in that category, in particular, public international law will be highly relevant in informing what would be exorbitant laws.
Your Honour Justice Keane gave the example of a law conferring citizenship by descent through seven generations, most likely an exorbitant law. Other more extreme examples were referred to in Sykes v Cleary. But such a law which is exorbitant, in that sense, would be one which is not recognised by section 44(i) as one rendering the person a subject or citizen of the foreign country.
GAGELER J: So this is a rule of recognition built into section 44(i)?
MR GLEESON: Yes, yes.
GAGELER J: We are not talking more generally about choice of law rules?
MR GLEESON: No, no. It is built in to this section and the rule of recognition is, ordinarily, look to the foreign law. The reason for the ordinary rule is explained adequately by the majority in Sykes as it reflects the Australian common law. It, in turn, reflects international law and so it is a case of the constitutional recognition rule being built up from our common law and our respect for international laws. That is the ordinary rule.
So, then the exceptions to the rule of recognition, as a matter of Australian law, firstly fall into this category of foreign citizenship laws which are exorbitant and so as we have indicated in paragraph 3(d)(i), the first category of exceptions will be those which focus on the manner in which the foreign law confers the citizenship.
GAGELER J: Let me just take the exorbitant example of the seven generations?
MR GLEESON: Yes.
GAGELER J: What if the person quite likes that? What if the member wants to be the Italian citizen and takes the benefit of the seventh generation law? Where do you stand on that?
MR GLEESON: So, in your Honour’s example, we have a person who is qualified under section 34 as an Australian natural‑born or naturalised person ‑ ‑ ‑
GAGELER J: Yes.
MR GLEESON: ‑ ‑ ‑ and we have a person who has been conferred in the first instance involuntarily, a seventh generation descent Italian citizenship ‑ ‑ ‑
GAGELER J: Yes.
MR GLEESON: ‑ ‑ ‑ but a person who says “I like that and I want to keep that and keep its privileges”. How Justice Brennan would deal with that, which we submit is the correct answer to your Honour’s question, is on page 113 of Sykes, about halfway down, where his Honour says:
there are few situations in which a foreign law, conferring foreign nationality . . . is incapable in fact of creating a sense of duty, or is incapable of enforcing a duty of allegiance or obedience to a foreign power.
As I have understood your Honour’s example, looking at all the circumstances of that case, that foreign citizenship is capable – perfectly capable, very capable of creating a sense of duty and capable of enforcing a duty of allegiance and obedience because of the facts your Honour has put to me. In that example, we would submit that the rule of recognition would apply and in its unqualified form and that person is disqualified. Their allegiance to Italy, looking at all of those circumstances, is a matter which creates the risk of conflict with the primary undivided loyalty to the Parliament and people of Australia – that person must make a choice.
EDELMAN J: But why would you deal with that as effectively creating an exception to the exception rather than simply saying it falls within the first limb?
MR GLEESON: I was seeking to say that, your Honour.
EDELMAN J: I see.
MR GLEESON: No exception recognised in the circumstances posited. No exception recognised – it is within the primary rule. That is the category where laws confer citizenship in ways which might, as I have said, be exorbitant.
GORDON J: Just so I am clear, the distinction between whether or not, on your analysis, a law is exorbitant or not exorbitant depends upon the act taken by the person to whom the law applies?
MR GLEESON: No, your Honour. It depends on looking at, first of all, the character of that law and its relationship to the person and then, if there be additional matters such as those that have been mentioned, those matters, as it were, would ‑ ‑ ‑
GORDON J: Being acts of the individual.
MR GLEESON: Those acts of the individual in that example would, as it were, do away with any exorbitant character which might otherwise appear on the face of that law as applied to the ordinary person.
GORDON J: So the only distinguishing fact in those circumstances between exorbitantcy on its face and otherwise is the act taken by the person?
MR GLEESON: That is correct, your Honour, yes.
NETTLE J: It would only work for that candidate, not for another. Another candidate who did not wish to avail themselves of the seventh level of succession would be entitled to plead that it is exorbitant.
MR GLEESON: Yes, your Honour. That is the first broad category of the qualification for the recognition rule. As we have indicated in 3(d), we would accept – and to this extent we agree with Mr Walker that the exceptions do not all collapse into exorbitancy – that there could be exceptions to recognition where, irrespective of exorbitancy, the rule threatens the integrity of the system of representative and responsible government. We have put that at a higher level of threat to the system. This is not about mere inconvenience; it is about the threat to the integrity of the system.
Justice Dawson, at page 131, at point 5, used language which we think is of assistance when he said that he agreed with the plurality and Justice Brennan that:
s. 44(i) should not be given a construction that would unreasonably result in some Australian citizens being irremediably incapable of being elected to either House of the Commonwealth Parliament.
That irremediable incapacity is indicating the level of the threat. The other point I would make here is that when Justice Brennan, again on page 113, at point 6, dealt with these categories, he indicated there may be an overlap between the exorbitancy rule and the rule which is the public policy of protecting the system of representative government by ensuring people are able to stand. So there is no sharp division between exorbitancy and the second category.
Where this leads me to the next proposition which is important in our argument, paragraph 3(d)(ii), and this is closer to the present case: what are the qualifications to the constitutional rule of recognition where the foreign law restricts the ability to renounce the citizenship?
That, we submit, is the key problem that Sykes v Cleary addressed and it is that problem which explains the reasonable steps exception. The reasonable steps exception is all about the problem which the plurality considered at page 107 of what be the case if notwithstanding the person had done everything which could be reasonable to renounce the foreign nationality they were not permitted to renounce. That could arise because the foreign country might observe the rule of indelibility or the foreign country might impose unreasonable conditions such as serving in the military for three years before you can renounce, or it might attach unreviewable discretions, uncontrollable discretions, to the decision.
KEANE J: There would be an inconsistency, would there not, between recognition of such a law and section 34?
MR GLEESON: An exact inconsistency. What we call the cases which would threaten the integrity of the system more precisely are cases which would generate that inconsistency with the primary rule in section 34 that if you be a natural‑born or naturalised Australian you are qualified to sit. In this case, if you extended the rule of recognition, you would be so undermining section 34 as to imperil the work it does.
KEANE J: You would be denying the possibility of a voluntary choice by an Australian citizen to become a candidate.
MR GLEESON: That we submit, your Honour, and that we submit is what drove the reasonable steps exception.
BELL J: In a context in which in relation to Mr Kardamitsis there was the issue that, whatever step he took, he was dependent upon the Minister accepting his act of renunciation.
MR GLEESON: Yes, and the Court dealt with that of course at 108, point 6 by saying, well, we do not know enough about how the Minister would deal with that discretion, but for a person who has not even made the application, he cannot be said that he is being irremediably ‑ to use Justice Dawson’s words ‑ disbarred from taking up his section 34 right.
So the way in which Mr Kardamitsis and the second respondent are dealt with, it has little to do with their appreciation of whether they have a continuing allegiance to a foreign power, it has little to do with whether they have done any voluntary act or they have made a choice, as Mr Walker would put it. It is simply to say that to get within this fairly tightly targeted exception, which will ultimately lead to a conclusion, we must disapply recognition for otherwise fear of undermining section 44. You must at least do all the things that you could do under the law of that foreign country.
That, of course, explains then, in fairly similar terms to Justice Brennan at 113, point 7 to 9, where he deals with the same exception and what his Honour explains very clearly ‑ and we embrace for your Honours consideration of this paragraph – is that you must have done everything reasonable to get rid of that foreign citizenship and yet still be held bound to it because, as he says in the final sentence of the page:
So long as that duty remains under the foreign law, its enforcement – perhaps extending to foreign military service – is a threatened impediment to the giving of unqualified allegiance to Australia. It is only after all reasonable steps have been taken under the relevant foreign law to renounce the status, rights and privileges . . . and to obtain a release . . . that it is possible to say that the purpose . . . would not be fulfilled by recognition of the foreign law.
Now, that we submit, coming back to your Honour Justice Edelman’s question, is a clear statement that you must have completed the taking of these steps ‑ ‑ ‑
KIEFEL CJ: Is that by way of saying you must be seen to have made an overt choice?
MR GLEESON: Well, our submission ‑ ‑ ‑
KIEFEL CJ: Or not even a choice ‑ choice or to have rid yourself of a burden that disqualifies you; a disability.
MR GLEESON: Your Honour, we would put it slightly differently, that the disability arises from the status; the status carries the allegiance. What you have to do is to get rid of ‑ ‑ ‑
KIEFEL CJ: Yes, but his Honour is referring to a duty, an obligation, and that is something that a person feels, and they can only feel it if they know about it.
MR GLEESON: With respect, your Honour, we would read Justice Brennan differently, at least our submission for your Honours’ consideration. Justice Brennan is saying in these passages we are looking at are that it is the existence of the status which carries with it the allegiance. It is the allegiance to the foreign power which is the problem creating the disability.
What you have to do is to get rid of the status, therefore you get rid of the allegiance, or, in the second best case, if you have done everything you reasonably can to renounce the status and therefore get rid of the duty and yet you cannot be released, if you have done all of that, then in that circumstance for the purpose of Australian law under section 44 you will not be treated as a person who has a sufficient conflict to prevent you standing under section 34.
Your Honours, could I just take you to a couple of passages taking up that question in Justice Brennan on how we would read the existence of the status as conveying the allegiance, and this is of course a fundamental ‑ ‑ ‑
KIEFEL CJ: Just before you do, could I just direct your attention to – we are starting to parse what Justice Brennan is saying ‑ page 113, where his Honour says:
there are few situations in which a foreign law . . . is incapable in fact of creating a sense of duty –
On one reading his Honour is not just saying that the law itself is capable of producing – the laws of a foreign state are capable of producing an enforceable duty. That is certainly a concern. But his Honour seems also to be addressing the sense of duty that the individual will feel. Of course, in the context of the second and third respondents in that case that is perfectly understandable. They are still clearly bound by foreign law, they are foreign citizens, to their knowledge.
KEANE J: But both of them had sworn, when they took the oath of allegiance to Australia, to renounce those foreign allegiances. So there was no question about the second and third respondents in Sykes v Cleary having made very clear that they had no sense of allegiance.
MR GLEESON: That is as we would read the stated case and then as it is picked up by the judges. Their belief, which was wrong, their belief, wrong, was that whatever be their past, by the process they had gone through in Australia meant they had only a single ‑ ‑ ‑
KIEFEL CJ: Yes. I think it might have only been the third respondent who actually had the belief, yes.
MR GLEESON: The third in particular, yes. That process meant, I have a sole, undivided loyalty to Australia; they were wrong. It is true in the passage your Honour has drawn my attention to. Justice Brennan covers two situations ‑ ‑ ‑
KIEFEL CJ: Yes.
MR GLEESON:
incapable in fact of creating any sense of duty, or of enforcing any duty, of allegiance –
One of our key matters where we differ very strongly from Mr Walker, Mr Walker says this all hinges on felt allegiance. If I do not feel it, then it cannot create any form of conflict. I cannot feel it if I do not know it. That is his case. Our case is that what section 44 has done is to seize upon the status and say that, from what we know of legal systems around the world, status is taken to convey the duty of allegiance.
The precise form of the duty of allegiance will, of course, depend upon the laws each country adopts from time to time, but section 44 has said, we submit, this is not an inquiry into the particular laws which the given foreign country has adopted. It is not an inquiry into whether you know or think about or feel about the allegiance. It is saying the fact of the allegiance is what creates the risk that you will not have the single loyalty you need to the Parliament of Australia.
When Justice Brennan refers to perhaps extending to foreign military service on page 113, that is an apposite example and we have given your Honours the reference in paragraph 34 of our submissions to even today the current DFAT advice is if you are an Australian/Greek dual national male you may be subject to compulsory military service and other obligations under penalty of law if you arrive in Greece.
What that indicates is the duty of allegiance which can then take effect in specific legal obligations is in existence and does its work irrespective of your knowledge. We submit, what is built into section 44 is, it is not an inquiry into do you know, do you think about, do you feel, you have this allegiance, it is into the fact that because you have the allegiance, that is what has created the irremediable conflict.
EDELMAN J: Why have a requirement of reasonableness then? Why not have a requirement to take all steps, provided it is not an irremediable status?
MR GLEESON: Thank you for that question, your Honour. It is interesting why it says “reasonable”. As we, in fact, read the majority judgments, you will fail this test called the “reasonable steps test” unless you have done everything reasonably required of you by the foreign law. When I say that, for example – assume it is a country which says you can renounce but you first serve in the army for five years ‑ that is a condition which a person may say, I wish to renounce but I am not prepared to do it at the cost of five years’ service in the Middle East.
Now, the “reasonable steps test” says there may be scope for the Australian law to consider whether that requirement, even though it is perfectly appropriate in the law of the foreign country, is too onerous a requirement given that its cost may well be that no Australian would want to undertake that requirement and, therefore, we will lose those persons from section 34. That is what is conveyed by “reasonable”.
EDELMAN J: It is not a “reasonable steps requirement”. It is an “all steps reasonably required” requirement.
MR GLEESON: I agree.
NETTLE J: Would you say that of Justice Dawson also at 131, bottom line?
MR GLEESON: Yes. That is the force to be given to his Honour. These are the sort of matters that we would be taking into account.
NETTLE J:
the person’s knowledge of his foreign nationality –
the last three lines?
MR GLEESON: Yes. What is interesting about Justice Dawson is, despite putting that into the bag ‑ ‑ ‑
NETTLE J: I follow the point, but ‑ ‑ ‑
MR GLEESON: ‑ ‑ ‑ when he comes to the decision on 132, point 4, which your Honour has, it resolves to a more simple question, there being steps taken to you ‑ and this actually mirrors your Honour Justice Edelman’s language – which could reasonably have been taken, your failure to take them meant you fall back within the general rule.
Now, “that which could reasonably have been taken”, that is a finding of reasonableness made against the context that at least the third respondent, as Justice Keane said, believed black and blue he was not Greek, he had no knowledge of any step to take under the law of Greece, no reason to even think about the topic, and yet he is a person for Justice Dawson who could reasonably have taken those steps.
KIEFEL CJ: That might be a convenient time, Mr Gleeson.
MR GLEESON: May it please the Court.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
KIEFEL CJ: Yes, Mr Gleeson.
MR GLEESON: Thank you, your Honours. Your Honours, completing Sykes v Cleary at point 3(d) of our outline, if I could ask your Honours to go to Justice Brennan at pages 109 to 112 for the point I mentioned, namely that in his Honour’s judgment, we submit correctly, status conveys allegiance and that is what creates the conflict seized upon by section 44(i) without any further superadded elements. That is the proposition. Your Honours will see on page 109 at about point 4, his Honour refers to the:
three categories of disqualification, each of them being descriptive of a source of a duty of allegiance or obedience to the foreign power.
Relevantly:
The second category covers the case where the duty is reciprocal to the status conferred by the law of a foreign power.
That, we submit, leaves no room for any additional elements such as knowledge, voluntariness, choice, close connection or the like.
The other passages to the same effect, at the foot of the page where the international law rule in Nottebohm’s Case is cited, t. The court said that:
“Nationality serves above all to determine that the person upon whom it is conferred enjoys the rights and is bound by the obligations which the law of the State in question grants to or imposes on its nationals.”
So, again, the inseparable link between a status and the duty. Without reading it, your Honours will see that same point repeated in the first full paragraph on page 110 and in the third paragraph on that page.
GAGELER J: Mr Gleeson, this was a submission based on the authority of Sykes v Cleary, so is the proposition that Justice Brennan’s analysis is the ratio of the case or ‑ ‑ ‑
MR GLEESON: No, this part of the submission is that Justice Brennan is the only Justice in the Court who, with this degree of precision, identified exactly why it was that status attracts the disability without further inquiry. It is then a submission that what his Honour did was correct in this respect and it is then a submission that when Sue v Hill comes to consider this case – and perhaps I should move directly to Sue v Hill (1999) 199 CLR 462, that in the judgment of three Justices at paragraph 47 – which is a very compressed paragraph – Mrs Hill was a British citizen by the law of the United Kingdom:
In construing s 44(i) of the Constitution, the Court should apply the classification given to Mrs Hill under the United Kingdom law (75).
The footnote says:
cf Sykes v Cleary –
at two places – the first being Justice Brennan at 112 to 114 and the second being Justice Gaudron at 135 to 136. So we would submit that here is the Court coming back to Sykes v Cleary and three Justices at least are treating Justice Brennan’s more detailed analysis of the problem as, at the very least, instructive.
KIEFEL CJ: But the more detailed analysis would not have been necessarily – their Honours would not be taking up all of it for the point that arose in Sue v Hill.
MR GLEESON: A lot depends on the “cf”, your Honour.
KIEFEL CJ: Yes.
MR GLEESON: It is indicating go to those pages and you will find in significant – in more detail.
KIEFEL CJ: Somewhere in there you will find the point that we are making.
MR GLEESON: In those pages what we find – in what we submit is a considered and powerful passage from Justice Brennan – a unifying notion that status conveys allegiance and it is the allegiance which is what creates the conflict which therefore leads to the general rule that we have identified in paragraphs 3(a) and 3(b).
KIEFEL CJ: It could be that their Honours were simply referring to the general rule of the common law.
MR GLEESON: It is possible that that is so, your Honour, but in the compressed paragraph we are dealing with, the Court is saying for Ms Hill, “We will apply the classification under the United Kingdom law” - in other words, we will apply what I have called the general rule.
KIEFEL CJ: Yes.
MR GLEESON: We will go to foreign law and by implication the Court is saying there is no qualification to the general rule of recognition relevant to the case of Ms Hill, and they are saying look to these passages to see further the relevant principles. The reason we submit that Sue v Hill has in fact embraced, firstly, Sykes and, secondly, Justice Brennan’s approach includes, if the Court goes back to pages 465 to 466, and noting the point Justice Gordon raised about the acquisition of the British passport for temporary purposes, 466 records at paragraph 33 of the case that:
Upon becoming an Australian citizen on 20 January 1998 and at all material times until 18 November 1998, the first respondent had no knowledge or awareness of any steps she could or should take to renounce her British citizenship. The first respondent first became aware of these steps when the issue of her citizenship was raised on 18 November 1998.
That is well after the relevant election date. Then her stated case at 34 says that her understanding at all material times was that her sole loyalty was to Australia. So we would submit, like Mr Kardamitsis, her subjective state of mind, although it was wrong, was she had a sole loyalty to Australia, she need do nothing to remove the British citizenship, and it is impossible to regard Ms Hill as a person who had any felt allegiance to the United Kingdom, based on these facts.
Against the background of such a person who had no knowledge of the disability, the three Justices I have mentioned said we will apply the general rule, and that, we submit, is an endorsement of the approach that there is no room for knowledge or other superadded elements.
The fourth Justice making up the majority on that point was Justice Gaudron. If I could go to page 505 in paragraph 104, her Honour noted the relevant facts I have just been to. Importantly, her Honour drew attention at the end of 104 to the fact that, at all relevant times, Mrs Hill understood her sole loyalty was to Australia.
GAGELER J: But she knew she was a British citizen. She had a British passport.
MR GLEESON: In terms of what she understood as to her loyalty, she understood her sole loyalty was to Australia. Accepting what your Honour has said, she is a person who, if we are having regard to her subjective state of mind, has no knowledge she needs to do anything in respect to getting rid of the British citizenship; she believes her sole loyalty is to Australia.
GORDON J: You test it objectively. In Senator Hill’s position, first, she had British citizenship; second, she had taken a step to maintain it – or adopt it. She had a British passport and she had taken no step to sever it. She is in a very different position, is she not?
MR GLEESON: Well, your Honour would need to add to that, with respect, the fact ‑ ‑ ‑
GORDON J: Sorry, one other thing: and the knowledge then - her belief becomes irrelevant.
MR GLEESON: We would submit not. She is a person with no knowledge of any steps she “could or should” it says, take to renounce her British citizenship. Now, that is not a person thinking “I’m a British citizen”. That is a person thinking, “My sole loyalty is to Australia, that is, whatever I have done has removed any loyalty to Britain”. That is the basis upon which she has decided. That, we submit, is very similar to Mr Kardamitsis.
So her Honour Justice Gaudron has taken into account the matter I have taken you to at paragraph 104 and when her Honour then deals with the question it is raised at paragraph 158. It is the alternative submission:
having taken out the Australian citizenship, nothing further was required -
So it is placing reliance upon that. Her Honour then deals with the matter at paragraphs175 to 176. At 175, consistently with how we have put it, her Honour says:
the question whether a person is a citizen of a foreign country is, as a general rule, answered by reference to the law of that country.
Then in 176:
Given that a naturalised Australian may have dual citizenship, it is necessary that he or she take some step to renounce . . . before he or she can be treated under Australian law as having renounced it.
Mrs Hill had taken no steps. So the case turned, very much like Sykes v Cleary, on the fact that there were steps available under the law of Britain and she had taken no steps, and accordingly she had taken no reasonable steps.
If your Honours could return to our outline please and I will deal more briefly with the rest of page 1. We submit that counsel for Mr Kardamitsis did ask the Court to adopt a voluntary act test. The majority must be taken to have rejected that test because if it had been accepted, they would have agreed with Justice Deane’s dissenting conclusion.
Next, it is clear that the real and effective nationality test was rejected by all Justices. That is of indirect significance because there were elements of that test which reflect some of the submissions that have been put about whether the citizenship needs to be felt, needs to be somehow subjectively appreciated. They would have been matters relevant, had the international law test been adopted, as your Honours can see from the foot of page 106 of Sykes, where the test is stated, and yet those sorts of matters are rejected.
KIEFEL CJ: Except, as you pointed out earlier, the focus of the Court was very much upon the position – at least particularly the joint judgment – the position where a citizen is unable to renounce foreign citizenship, and that is borne out I notice by the footnote to the 1981 report of the Constitution Standing Committee which I think had suggested that section 44(i) be deleted and that a referendum be held because it potentially raised that very question.
MR GLEESON: Yes.
KIEFEL CJ: It is footnote 60 on page ‑ ‑ ‑
MR GLEESON: Could I inquire if the Court has the 1981 report? As your Honour has raised it, if the Court does not have it I can hand it up.
KIEFEL CJ: I think it would be as best to provide it to the Justices, thank you.
MR GLEESON: Thank you. The passages commence at 2.14 and it is a fair inference that this report was significant in the course of the argument and the reasoning particularly of the plurality in Sykes v Cleary.
KIEFEL CJ: I think it was raised by the Solicitor‑General inferentially one can see.
MR GLEESON: Yes, because when the plurality in Sykes at page 107 refer to the report, they are referring to paragraph 2.14 as to the suggested purpose of the provision. It is interesting that at 2.15 the committee read the relevant part of section 44(i), we would submit, correctly as a purely objective test, so that the only question is whether a person, albeit an Australian citizen, is a citizen or subject:
entitled to the rights or privileges of a subject or a citizen of a foreign power –
If your Honours were to compare that conclusion with page 107, point 3, that is almost directly the language which the plurality have adopted, namely, it is subjective; the question is what it purports to be.
KIEFEL CJ: It might be a little bit drawing an inference to say that their Honours had in their reference to paragraph 2.14 meant to adopt all that was said in paragraph 2.15.
MR GLEESON: I agree, your Honour; I agree with that. I am seeking to put that if one looks above that paragraph on page 107 when the plurality say we cannot adopt international law, here the question is simply is the candidate a citizen or subject of a foreign power, which is how we would frame the question ‑ ‑ ‑
KIEFEL CJ: Yes, I see.
MR GLEESON: ‑ ‑ ‑ that is framing it in an objective fashion and it is not building in any question of knowledge or voluntariness or anything else. That had been the view of the committee at the end of paragraph 2.15 which is:
it is unlikely that a court would construe the provision as requiring a person to have voluntarily retained his formal allegiance to his previous country before he breaches –
We submit the committee correctly anticipated the law. What is then interesting is that 2.16 is the committee addressing what became the core problem taken up in Sykes v Cleary, and that is really what is then addressed in the balance at page 107 of the plurality. What if it be the case that it is shown that the system of foreign law does not permit the person to voluntarily relinquish that status, and one way of reading Sykes v Cleary is that, this being identified as the potential mischief if the rule of recognition was completely unqualified, the Court was prepared to recognise a qualification to the rule to deal with the problem. In other words, the current text allowed for an answer to 2.16.
KIEFEL CJ: A question, I suppose, is whether Sykes v Cleary is to be understood as really dealing with much more than that if one has to do it by so many processes of inference, if that was the true focus of their Honours’ question, because the facts in Sykes v Cleary clearly raised the point which could be addressed, and the problem which the 1981 report identified was able to be addressed by their Honours directly.
MR GLEESON: The 2.16 problem was able to be addressed ‑ ‑ ‑
KIEFEL CJ: Yes.
MR GLEESON: ‑ ‑ ‑ as something which the text already allows a solution to. The balance of the committee’s ‑ ‑ ‑
KIEFEL CJ: A limitation of foreign law by reference to purpose allows it to occur.
MR GLEESON: I accept what your Honour has said. Then, the balance of the committee report is to go on, as your Honour has said – interestingly after noting that the prevalence of citizenship by various routes, including descent, so it is yet another piece of evidence of citizenship by descent being ubiquitous ‑ the committee, obviously, went on to recommend a deletion and then recommended, in paragraph 2.20, the substitution of a simple statutory provision which, interestingly, bears some resemblance to the argument being put by Mr Joyce that this provision would only have any work to do if a person, first, had knowledge of a dual nationality and then it attached certain conditions to the proposed section. Now, we would submit that, obviously enough, this has not been taken up. But, if that is the way the provision was meant to work, namely, one which had knowledge as the gateway, in a constitutional provision you would expect it to say so.
Your Honours, concluding page 1 of the outline, our submission in paragraph 5 which we have developed in writing is that one cannot, by any fair process, treat the actual reasoning of Sykes v Cleary as imputing a voluntary, chosen or felt allegiance as the basis for the obligation to take reasonable steps. Nor do we submit the facts could properly sustain any such conclusion.
Your Honours, with Justice Deane’s dissent, the one point I wish to make was – looking at that at page 113 – the Solicitor‑General has described this as simply a difference on the facts. We would submit the difference is far more radical than that because the principle which drives Justice Deane, which is at about point 3 – 113 ‑ I am sorry, 127, the principle which drives Justice Deane is the sentence which says:
In conformity with the purpose . . . the second limb . . . should, in my view, be construed as impliedly containing a similar mental element –
to the first limb:
with the result that it applies only to cases where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in –
Now, if that had been the test, then Mr Joyce would not be disqualified. But that as the principle is radically at odds with the principle adopted by the majority and it is that principle which explains the next sentence, the reference to the Australian‑born citizen, and it is one that we submit is inconsistent with the majority. Your Honours, could I then deal with point 8, which is Mr Joyce’s position ‑ ‑ ‑
EDELMAN J: The passage from Justice Deane that you have just directed us to, do you say that really falls into the second category of construction? In other words, it is drawing an implication into the text rather than determining what Australian law outside the text should treat as the appropriate rule of foreign law for the purposes of recognition?
MR GLEESON: Yes, your Honour, I would submit that and then I submit, based on that, it is drawing an implication into the text which cannot sit with the approach taken by the majority in the case.
GAGELER J: Now, Mr Gleeson, if you look at what Justice Deane says at the top of page 128, in the first full sentence, dealing with the circumstances of the two particular individuals, the sentence beginning:
A person who becomes an Australian citizen –
Can that be said to be different in substance from what the joint judgment of three Judges was saying?
MR GLEESON: Yes, it is because it has come through this different route. It has come through the route of the sentence I have read that, whether you be natural born or naturalised, the guiding principle is the section can never apply unless you have done one of those four things: “sought, accepted, asserted or acquiesced in” the foreign citizenship. That is the passage on 127, at point 4. That is what drives everything that follows.
GAGELER J: It is certainly different from Justice Brennan, except that – the question is: is it necessarily different from the judgment of the three Justices who otherwise form the majority?
MR GLEESON: My submission is it is, because one looks at the result in respect to Mr Kardamitsis. One could not say on the facts of this case that Mr Kardamitsis had – let us take them in turn – sought or accepted the foreign citizenship. It was conferred on him from birth without his will. One could not say on the facts that he had asserted his foreign citizenship and one could not say on the facts that he had acquiesced in the foreign citizenship. He had done everything he could and believed he had effectively done to remove that from him. So we would submit that there is a direct inconsistency between that as the guiding principle and the plurality.
BELL J: That is the acceptance of Mr Bell’s argument on Mr Kardamitsis’ behalf?
MR GLEESON: Yes, that would be Mr Bell won. Your Honours, the application then of the case to Mr Joyce would simply be this. Firstly, applying the general rule, the Court looks to New Zealand law. Secondly, New Zealand law says he is a citizen from his birth up until he renounced about seven weeks ago.
Thirdly, he had not taken the ordinary steps to overcome the disability – that is, as at the date of the last election he had not effectively renounced. Fourthly, the New Zealand law conferring citizenship upon him could not be considered to be exorbitant and it is not suggested as such by Mr Walker. I include in that proposition the submission that attaining citizenship by descent was a well‑established method by which foreign citizenship was acquired.
In terms of the position at Federation, we agree with what is in the Commonwealth’s submissions at paragraphs 45 to 46 where it is said:
It is well known at the time of Federation that foreign law could confer citizenship by descent upon natural born British subjects ‑
References are given, including the relevant countries, and in 46 that “it was readily foreseeable” that this could occur. I will simply give your Honours the reference to our paragraph 72 where we have provided additional evidentiary references which confirm the position the Commonwealth has taken.
I could mention that in Singh v The Commonwealth (2004) 222 CLR 322, in four paragraphs the Justices said the same thing. I will just give the paragraph numbers, if I can: paragraphs 30, 81, 179 and 251. In terms of citizenship by descent continuing to be a well‑established route into the 20th century, not only is it referred to in the Senate report we have been to but it is clearly evident in our law in the 1948 Citizenship Act, section 11, the 2007 Act, section 16, in the law of New Zealand see the expert reports and so on.
The next factor in relation to Mr Joyce is that there was a ready means under the law of New Zealand to renounce his citizenship without onerous conditions. That is section 15 of the Act referred to in Mr Goddard’s report. The final fact is that, at the relevant date, he had taken no steps. In those circumstances, there being no basis to discriminate between natural born and naturalised citizens, there is no reason to qualify or disapply the general rule of recognition.
Your Honours will see on page 2 of our outline that it moves beyond Sykes v Cleary and seeks to treat the matter at a more general level of text, context and purpose. I will not repeat what we have said about text. The matter I did want to take up really between paragraphs 11 to 13 is additional support for Justice Brennan’s notion that the allegiance inheres in the status irrespective of whether it is known, chosen or felt.
The additional matters I want to offer in bullet point form are these. Firstly, I have already given the example of military service from paragraph 34 of our submissions where knowledge is irrelevant, or the obligation can be imposed by the foreign power if the citizen arrives there irrespective of knowledge.
The second example from the law of New Zealand, if your Honours could go to volume 4 please, in the expert report that we have offered from Mr Cooke which commences at page 1346. At page 1362, paragraph 57, Mr Cooke gives a series of examples where New Zealand has made the duty of allegiance upon its citizen more specific by establishing offences which operate on the citizen even if committed outside of New Zealand, and one of them, for example, are offences relating to New Zealand’s agricultural economy.
So, while ever Mr Joyce remained a citizen of New Zealand, consistent with his duty of allegiance, he had a susceptibility to the criminal law of New Zealand in respect to conduct even done in Australia. We, of course, make no submission suggesting any of this occurred. The significance of it is as soon as he ceases to be a citizen, these laws no longer hang over his head and this example of a state applying its law extraterritorially, particularly criminal law, to a citizen is within the limits, of course, of public international law.
So, irrespective of knowledge, holding the status, carrying the allegiance, leads to a person being under the criminal law of the other country in respect to conduct done here and with the effect that if any such prosecution, of course, were commenced the person would face the choice, if they wished to defend themselves, to submit themselves to the jurisdiction of the courts of the foreign country, or stay away and face the possibility of a conviction in absentia.
GAGELER J: If you take this submission to its logical conclusion, you would not have a rule of recognition built into – or any qualification to recognition built into section 44, would you, because these problems would arise under an exorbitant exercise in jurisdiction by a foreign state?
MR GLEESON: The answer to that is no, your Honour, but it teases out why the qualification is so limited in scope because the qualification is saying the ordinary way to remove this problem is to effectively renounce because then a problem is gone. If you have not effectively renounced, you do potentially at least remain subject to these laws, but, coming back to section 34 in terms of the balance struck in the Constitution between section 34 and section 44 at this point the balance tilts back in favour of section 34 and accordingly the allegiance, which is reflected then in these legal obligations, is treated as not being one which makes you within section 44 a foreign citizen. So a balance is being struck but only in the, we would say, fairly extreme case where the other country has not permitted you easily enough to get out.
Now, because New Zealand has permitted Mr Joyce easily to renounce, there is no problem. That is why we say Mr Joyce could never be said to have taken the reasonable steps that Sykes v Cleary contemplates, because, for a person in his position, there is no problem arising between section 34 and section 44. He can renounce very, very effectively.
Your Honours, I also want to make clear - I am only referring to the New Zealand provisions in paragraph 57 as but one example of the way in which a foreign power might instantiate the duty of allegiance into the specific types of obligations. The rest of the report, you will see in paragraphs 60 and 61, indicates that it is at least an open question whether the law of treason of New Zealand applies extraterritorially to a citizen. In paragraph 61, the military obligations do not currently apply to a citizen resident abroad, but it is an open question whether, at an earlier date, they did. That is the second example.
I just wanted to give one final example on this topic of how the duty of allegiance is deemed by section 44 to create the irremediable conflict irrespective of knowledge. The final example is this: the logic of Mr Joyce in the Commonwealth’s case is that a person in Mr Joyce’s position who does not subjectively know or believe he is a New Zealand citizen, even though he is, can properly sign the declaration, stand for Parliament and get elected. He can then lawfully sit in Parliament until something happens.
The something – and we have indicated this creates part of the very grave uncertainty – is Mr Joyce learning from some source information which subjectively leads him to believe he is a foreign citizen or, depending how it is put, there is a substantial prospect he is a foreign citizen.
The inherent vagaries and uncertainties in determining, for a person who is now either in the electoral process or in the Parliament, whether he has tripped the wire of that knowledge need hardly be stated. It is the logic of the case put on this side that if he trips the wire of knowledge he then has a reasonable period of time in which to take reasonable steps to get rid of the citizenship and, if he does not do so at the end of whatever is that reasonable period, he is disqualified under section 45. Our case is he was disqualified beforehand under section 44.
So, the next uncertainty and radical instability built into the test is what will be that length of time while a person is sitting in the Parliament before the guillotine of section 45 falls upon the person. It would appear to create a very grave uncertainty in the application of section 45 if it is not easy to identify how long that period is. But let us take a person like Mr Joyce who does take the steps within that period, which I might call a grace period.
In the present case, depending upon how you view the evidence, Mr Joyce first acquired knowledge in late July and he effectively renounced on 12 August. The period, therefore, in which a person may sit in the Parliament with the disability – and now having relevant knowledge of the disability – may be short or it may be long.
During that period, even if it not be true earlier, the person is sitting in the Parliament with an undivided loyalty to Australia, it is said, but knowing the person also has the allegiance to New Zealand unless and until it is removed. During that period it is not fanciful to think that issues could come up in the Parliament, or if the person is a Minister under executive
power, where the interests of the two nations do not coincide – for instance, a trade deal. More extreme examples can be thought of if the two nations are at war. During that period, the person now has not only the allegiance which always inhered in the status but that allegiance has come home to create a very real and practical conflict.
A case put by the Commonwealth and Mr Joyce is that the Constitution tolerates people sitting in the Parliament, not just as dual citizens, but during the period in which we are waiting, as the people, to find out whether they do or will take the steps to renounce. That, we submit – which inevitably follows from their case – is the very thing that section 44 is designed to prevent occurring.
I need only add to that, finally, one can readily think that if Mr Joyce’s case is correct, the conclusion which will then be drawn properly by the community is this. The Parliament may consist of any number of dual citizens. It may be a very large number. If a person is diligent and inquires about their status and obtains appropriate advice, according to the argument put, they will hit the tripwire of knowledge, they will be put on the horns of the dilemma, they will have to renounce or not. But a person is perfectly entitled not to seek advice, notwithstanding the handbook says you should seek advice. A person is perfectly entitled to say, “I rest in my state of no knowledge about my foreign citizenship”.
What will that provoke? What that will provoke, one can readily infer, is a course of action in the community where the media, the electors, political opponents go around searching out people who might have an obvious dual citizenship problem, putting that problem to those persons, trying to get them on notice, trying to get them over whatever is the test for a sizeable prospect, trying to get them into the stage of reasonable steps.
We will then have a sequence like we have had this year of people in the Parliament sitting there with this uncertainty hanging over their status. That, we submit, is not the course tolerated by section 44, and if I could just conclude my part of the submissions, what is contemplated by section 44 is that people who wish to stand for Parliament make the appropriate inquiries. If they need to renounce they do so before they nominate for the Parliament. If they are elected, they then sit in the Parliament with the undivided loyalty which the Constitution requires of them.
Your Honours, if that is convenient at that point, unless your Honours have questions on my part of the argument, I might hand over to Mr Merkel.
KIEFEL CJ: Yes, thank you.
MR MERKEL: If the Court pleases. I will be addressing paragraph 17 through to 27 of our outline and if I can just at the outset summarise the propositions that we say have the result that the historical context and the drafting history actually support the construction for which we contend. The first proposition is that the colonial antecedents of sections 44(i) and 45(i) were first drafted in an era in which the allegiance of a British subject was indelible, when the problems of dual allegiance were just emerging.
The second proposition is that both of those issues were dealt with in the Naturalization Act 1870 which gave effect to the recommendations of the 1869 Royal Commission on Naturalization and Allegiance. The third proposition is that as a consequence of the changes made by that Act, importing the second element of what was the disqualification clause, originally drafted as clause 45(i), namely an Act whereby you become a foreign citizen, inserting that into the new Constitution would not achieve the purpose of the disqualification or that of 44(i) because such a person under the Naturalization Act would no longer be qualified because of the cessation of their subject to it as a British subject.
What we then say is that the draft adopted ultimately by the Melbourne Convention which included section 44(i) in its present form was intended to, and did, achieve the purpose which was not in issue between the main parties in the case of avoiding conflicting allegiances which the evidence and the discussion of that issue in this Court in Singh shows had become a growing problem during the 19th century, one which required being addressed by the Royal Commission and was addressed by the Naturalization Act and that created dual allegiance as a real and current issue at the time the Constitution was being drafted.
KIEFEL CJ: Mr Merkel, do these submissions you are making today reflect the approach taken in the written submissions?
MR MERKEL: No, your Honour. We relied in the written submissions on the three classifications, but today we are endeavouring to drill down and respond to the way in which the Solicitor‑General has put his argument. But we did not deal with this aspect in the written submissions. It is something that we have looked at more closely in trying to address the way in which the Attorney‑General is relying on history, your Honour.
We did in our written submissions refer to a qualification provision which became section 34, a vacancy provision which was section 45, and we now – we prefer to refer to section 44 as a disqualification provision. In our written submissions we referred to it as an eligibility provision. The colonial antecedents have three aspects which we would say need to be considered. The first is, until it first appeared in the first draft for the Constitution, which is at tab 1, the antecedents never had a disqualification provision. They operated with a vacancy provision and a qualification provision and that was a significant change that was made.
The second aspect is that the colonial antecedents, with one exception, were all drafted and enacted prior to the 1870 Naturalization Act. The only exception was in Western Australia, which was enacted in 1890 and 1899. It had adopted the same formula, including adherence to a foreign prince and power, which traces itself back to 1791. So that it cannot be said that the colonial antecedents were addressing the same problems as the constitutional conventions were addressing at the end of the 1890s.
The situation of the growing problem of dual allegiance addressed in the Royal Commission report – and I will ask your Honours to just note this; I will come back to it later – but that period and the growing problem of dual allegiance was considered in the plurality judgment in Singh, and if I can give your Honours the paragraphs but I will come back to them, at 178 to 182 and at pages 391 to 393.
In that period - that is preceding the 1870 Naturalization Act - given the permanence and primacy of British allegiance, it is not surprising that the conduct of a sitting member of the legislature in the colonies acting to become a citizen of a foreign power may be seen to be acting inconsistently with the loyalty believed to be owed by that member to the British monarch, and that could explain the reason for the vacancy provision arising in that period.
But the two events described in the plurality judgment, being the act and the Royal Commission report, brought about very significant changes to the British nationality laws and allegiances in 1870 which operated throughout Europe, the United States and the colonies up to the end of that century.
Can I go to Singh now, your Honours, and explain how the problem was viewed. Singh was a case, as your Honours will be aware, of a young Indian baby of Indian parents who were citizens who were in Australia but not citizens or permanent residents. The issue was whether she could be deported as an alien. The Court had to consider what the meaning of an “alien” was in the Constitution but gave great attention to the corollary of being an alien, namely, being a citizen. It is in that context that their Honours considered these matters.
Could I go to page 392, your Honours. I will not read 178 to 180, but their Honours in the plurality judgment referred to Sir Alexander Cockburn’s book, which was published at the end of the century. Could I read the emphasised passage in italics:
The conflict between the law of England and that of so many of the leading nations of the world as to the origin of nationality, and the inconvenience to which such conflict may give rise, as well as the inconsistency of our rule as to the immutability of allegiance, at a time when emigration from this country to America is annually taking place on so large a scale, are now so sensibly felt, that an alteration of the law has become inevitable.
Then at 181:
One of the chief features taken into account in formulating the recommendations of the Royal Commissioners was the attempt “to diminish the number of cases in which one who by British law is a British subject is regarded by foreign law as a foreign subject or citizen, and to obviate, as far as possible, the difficulties and inconveniences arising from such a double allegiance”.
Then their Honours go on to discuss the steps taken, because the Royal Commission was hopeful that treaties might be entered into so that the double‑allegiance issue would disappear, but in fact the opposite happened. As their Honours say five lines from the top of page 393, the hope of solving this problem was largely “unfulfilled”. Then Their Honours say at 182:
By the time of Federation, it was well recognised that “[m]ore than one state may claim the allegiance of the same individual, and a man whom English courts treat as a British subject may, by French Courts, be treated as a French citizen” –
So the problem that was at the forefront at the end of the 19th century was the problem of conflicting allegiances and it is in that context that we say the drafting history needs to be understood. Under the Naturalization Act, which is at tab 19, but I do not need to take your Honours to it, section 6 brought the indelibility of British allegiance to an end for a foreign national by saying that British subjecthood ceased upon acquisition of a naturalisation in a foreign country. Section 4 continued the British subjecthood by birth in Britain or the dominions but allowed children, upon their adulthood, to declare alienage and upon that their British subjecthood came to an end.
Section 8 provided for readmission, which may be an explanation for the Colonial Office note. It was like a naturalisation in England to get readmitted. Section 16 continued to allow colonial legislatures to make their naturalisation laws which would only operate within their territory. So these laws which operated throughout the British dominions and the colonies had the effect that the previous problem of indelibility was removed and on naturalisation in a foreign country a person lost their British subjecthood which, relevantly for the drafting of the Constitution, meant such a person would no longer be qualified under the forerunner’s antecedents to section 34 so that the problem of indelibility and the context in which the antecedents were drafted were overtaken by these events.
I should say that the vacancy provision would still have its work to do because it would work in a situation where a person who was qualified as a British subject, whether natural born or naturalised, would stand in the legislature but if they then sought to acquire a foreign naturalisation the vacancy provision would say that while you are sitting you have engaged in an act of becoming a foreign citizen and the vacancy provision would still apply, much as section 45(i) in our present Constitution would operate in respect of a disability.
But the problem that emerged in this drafting process was that the disqualification provision had no antecedent and the first draft, at tab 1, did not have a disqualification provision but it was quickly revised and the disqualification provision that came in at tab 2 was substantially in the same form.
Can I just take your Honours to it, but can I do it in the context of tab 6, which deals with the Colonial Office note and point out to your Honours the significant changes that had occurred in trying to transform the vacancy provision into a disqualification provision. Going to tab 6, which has the notes on it, your Honours, the format was the same but particularly:
has done any act whereby he has become a subject or citizen -
and we find for the first time what I will call the proviso, the disability only lasts:
until the disability is removed -
The last three or four lines:
by a grant of a discharge –
that relates to the other matters “or otherwise”. So that at this point of time there was obviously an overlap by incorporating the disqualification provision with the vacancy provision, which was 46, when the seat became vacant and there was obviously some doubt as to what the “or otherwise” might do. But the Colonial Office memorandum, dealing with it as a side issue, if it be relevant – and we say it does not throw a great deal of light on the passage of these drafts and what became section 44 – was, suppose the person returns to his allegiance, which would be he becomes naturalised in England, firstly, by doing that he may have expatriated his foreign nationality so he would no longer be a dual national and he would then fall within the “or otherwise”.
But if this were a problem of concern – and there is no evidence that it was – then the short answer was to just change the wording in 45(i) to “has done any act whereby he is a subject or citizen of a foreign power” which would bring it into the present tense and would work harmoniously with the vacancy provision. So to become qualified you cannot fall within the disqualification provision but if you obtain the foreign citizenship after you have been elected you then fall within the vacancy provision.
Also, the other problem with the draft, which was in a sense identified in the memo, is it was a backward‑looking test, not speaking as at the present, and it was entirely logical when reviewing this scheme to have a disqualification provision, and your Honours will recall that the qualification was until the Parliament otherwise provided. So to sit harmoniously, the disqualification provision should be as it turned out to be up to nomination or election and the vacancy provision, draw a bright line between it so if the event that is a disability occurs after election it becomes a vacancy.
These forms continued until the two drafts your Honours were taken to at tab 11 where the comparison was made between the old - what I will call the colonial antecedent draft with a disqualification provision and 45, which then became 45(i), with which we are now concerned.
I am only dealing with the second element, being an act by which you become a foreign citizen or are entitled to being a foreign citizen. We have set out in our outline of submissions at paragraphs 22 to 25 that the reason for section 44(i) being in its present form – an explanation for it is that the drafting committee must have realised that clause 45(i), in its previous form, would simply have little work to do and would not have achieved its purpose which are accepted, as I understand it, by the Solicitor‑General and Mr Walker – and also stated clearly by Justice Brennan in Sykes v Cleary – of preventing a person with conflicting allegiances from being elected as a Member of the House of Parliament.
So, when the convention was looking at the competing forms, they were looking at a form which was based on the colonial antecedent with a novel colonial experiment of importing a disqualification provision, which, in this respect had no precedent, and they were looking at a format which addressed the kind of drafting problems you would have expected, namely, disqualification speaking in the present tense as at time of nomination and if it is correct, as we say it must be, that the old form had little work to do when properly understood in the context of the post‑1870 era, it was entirely logical to take the step that the committee did and proceed with section 45(i) in its present form.
We have, in our outline, sought to identify at paragraphs 22 and 23 – but particularly at 23 – the categories which would no longer fall within 45(i) in its previous antecedent form. It would not have captured natural‑born subjects who were foreign citizens by descent from birth, would not have caught foreign‑born citizens by birth in the foreign territory who then became naturalised in Britain or Australia and it would not have caught foreign‑born citizens by birth in the foreign territory who were also deemed by statute to be natural‑born subjects by descent.
The reason is, none of those persons who would constitute the majority of people who would be having dual nationality, none of them having committed an act by which they have become a citizen of a foreign power looking backwards and if they did it looking forwards, the vacancy provision would apply.
When we look at the limited circumstances in which 45(i) could apply, we find in paragraph 22 you get this extreme example of someone who had been naturalised, for example, in continental Europe and then they would have to be re‑naturalised or further naturalised in Australia to become qualified. They were a person who would fall within 45(i) because they had done an act by which they had got a foreign citizenship.
But that would be an extreme example and even for that to apply the naturalisation in Australia would not, under the law of the continental European country, be treated as expatriation because if the naturalisation in Australia resulted in the cessation of the overseas citizenship that person would no longer fall under the disability.
But putting that to one side, we say that, when understood in the context to which I have taken your Honours at the end of the century it is simply not warranted to look back at legislation dealing with different issues at a different time and say that there was some continuing intention up to – past the Melbourne Convention for that form to continue to operate.
The other point that is made strongly against us is that, well, there was no debate about this change and it was a significant change. The problem with that approach and argument by our learned friends is that on the Solicitor‑General’s own argument and on my learned friend Mr Walker’s own argument, there was a substantial change in moving to section 44(i) in its present form.
They both accept that Mr Kardamitsis had been correctly disqualified under the principles laid down in Sykes v Cleary. He would not have been barred under the previous clause 45(i) because he had not done an act by which he had become a foreign citizen – he had done an act by which he had become an Australian citizen.
So that the point that really must be made against our learned friends is that they are accepting in their argument on the current construction they are putting forward of section 44(i) that there was a substantial change made as a result of the Melbourne Convention adopting section 44(i) in its present form.
So the argument that there was no debate really, we say, falls away. The question then becomes the legislative history does not give you an answer to what was intended by the convention. We say the context gives you a great deal of assistance as to why 45(i) was no longer able to do the work that it had previously done as a vacancy provision, but it continued as a vacancy provision because of what became 45(i) in our Constitution.
So the Solicitor‑General seeks to sidestep that outcome by saying that the test if you have a foreign citizenship is refraining from removing it. My learned friend, Mr Walker, says – puts this test of felt allegiance and imports knowledge. But whatever the correct test might ultimately be, it is a change of significant consequence and we say that that really brings - interplays the basic issue before your Honours, how should 44(i) be interpreted in the context in which it was enacted?
We make the point in paragraph 24 that the framers would have readily understood that the pre‑1898 draft was almost entirely ineffective in achieving its purpose for the reasons set out in paragraphs 22 and 23, and that is of ensuring persons with an allegiance conflicting with that oath to the Queen were incapable of being elected.
Now, there is no doubt that both interpretations give effect to that purpose, but that raises the question as to why the draft on its proper construction – and we have put our submissions as to how it has been construed in Sykes v Cleary – when on that proper construction it can be seen to be intended to, and did, achieve that purpose. We say there is simply no warrant for a purposive approach to read in concepts which are not really known in this area of law and are totally contrary to hundreds of years of learning on the nature and status of being a subject.
I will refer your Honours in a moment to Quick and Garran, but there is absolutely no doubt that when they wrote their book they fully understood the way in which section 44(i) was to operate by reference to status and how the provisions were to operate, which is exactly as we are putting.
Can I take your Honours back to Singh and may I make this point. My learned friend, Mr Gleeson, took your Honours to Justice Brennan in Sykes v Cleary where his Honour made the point that allegiance inheres in citizenship and the Court considered this in great detail in Singh. Indeed, it was central to the reasoning of why a young baby born in Australia was an alien because she was a British subject, because she owed allegiance as a baby born of her Indian parents to India, and that status inhered from birth.
In all the learning we have been able to look at we have not seen any indication in any of the cases that determine the status of a person that knowledge of status is a relevant factor, the reason being that it inheres in your qualification of being a citizen by naturalisation, by descent or by birth. Those three pathways have been common and were well‑known in – and regarded as giving problems of double allegiance back in 1900, and still the same problem subsists.
Now, if I may take your Honours to Singh. Could I take your Honours to the question asked and answered in the plurality judgment at paragraph 144, which is page 381? The question is:
“Is the plaintiff an alien within the meaning of s 51(xix) of the Constitution?” – should be answered, “Yes”. As a citizen of India the plaintiff has obligations, “owes allegiance”, to a nation other than Australia. She is, therefore, a person within the class referred to in s 51(xix) –
If I give your Honours passages which show that central to the reasoning in Singh is the concept that had been accepted since Calvin’s Case, that reciprocal obligations of allegiance to the monarch and of the monarch to protect have been foundational concepts in subjecthood and citizenship since Calvin’s Case. Indeed, that concept resulted in very strong dissents by Justice McHugh and Justice Callinan in Singh, who said that the common law continued to have the young baby in Singh as not an alien because it was inconsistent with the common law since Calvin’s Case that a person born in the dominions could be other than a subject.
That was not accepted in the plurality judgment or by Chief Justice Gleeson or by Justice Kirby, on the basis – and this made those passages I have taken your Honours to very relevant – that those fundamental changes in the area of allegiance and nationality by 1900 had brought about a totally different circumstance and that the common law had been overtaken by the law of allegiance and citizenship as it evolved in the Constitution and by statute so that the common law concept of born in the dominions therefore being a subject owing from birth the allegiance, with the reciprocal obligation of protection also being owed.
Within that legal conception of status there is simply no scope for importing a knowledge requirement or a knowledge criterion. That was certainly understood in Quick and Garran. Can I take your Honours to some relevant paragraphs to show that it is not just their Honours in Singh who said that all of the concepts were well understood. At page 478, under “s 132. ‘Subject of the Queen’”, the authors say:
NATURAL‑BORN SUBJECTS. – At common law everybody, whose birth happens within the allegiance of the Crown, is a natural‑born subject. “The character of a natural‑born subject, anterior to any of the statutes, was incidental to birth only; whatever were the situations of his parents, the being born within the allegiance of the king constitutes a natural‑born subject.”
Then they say:
This is still a ruling principle of our law. Children born in an English ship are born within the allegiance –
Then can I go on to section 142 on disqualification:
Section 44 enumerates different kinds of status which, while they continue, render “any person” incapable of being chosen or of sitting as a senator or a member. That is to say, the continuance of the disqualifying status makes a “person” incapable of becoming or being a senator or member.
Then down at 144, on “A Subject or a Citizen”:
A subject is one who, from his birth or oath, owes lawful obedience or allegiance to his liege lord or sovereign. “Citizen” is the term usually employed, under a republican form of government, as the equivalent of “subject” in monarchies of feudal origin.
Then, similarly, on “Naturalization” at section 194, it was stated to be:
the process, defined by law, by which an alien renounces his original allegiance and is converted into a subject or citizen, entitled to all the rights and privileges of natural‑born subjects and citizens in the country in which he domiciled.
Of course, that cessation of allegiance automatically attracts the new allegiance and the entitlement to protection by reason of the changed status from being a British subject to a subject or citizen of another country.
We would say that approached in that way, the structure that the framers created in 34, 44(i) and 45(i) were clearly defined criteria – relevantly for present purpose – based on a well‑recognised concept about status. In 34 the limits on what Parliament might otherwise provide so that the disqualification provision resumed a very considerable constitutional significance because whatever the ambit of the power conferred by section 34, it was subject to the disabilities – disqualifying disabilities – identified in section 44(i) which would strongly suggest that the interpretation of section 44(i) would be something that is intended to be clear and ascertainable at a particular point of time which is for 44(i) at the time of nomination through to election.
But, equally, as my learned friend, Mr Walker, pointed out, it is significant that the use of “thereupon” in section 45 assumed a clearly defined event in section 44 which would mean that the Member’s seat thereupon became vacant. So, the drafting removed the backward looking criterion that was in the colonial antecedent transfer to a disqualification provision. It removed the complexity of the proviso and did so by doing what one would expect drafting at this level would achieve, namely, speaking of a disqualification in the present tense.
So, the three critical provisions that work harmoniously and work within the scheme of achieving the purpose of enabling subjects or citizens – natural‑born subjects or naturalised subjects now citizens – to be qualified, to have a clearly defined criteria for disqualification and, likewise, clearly defined criteria for the vacancy provision.
So it is our submission that unless some more narrowly defined purpose is proffered, it is inconsistent with the rules of construction for the Constitution to be given some narrowed down reading of the kind that imports into section 44(i) words that are not warranted by the legislative history, such as “knowingly is a foreign citizen or subject”. My learned friends need to import those words and it cannot be just “knowingly is”, “knowingly is and remains a foreign citizen or subject”.
So once one looks at this as an interpretive provision, how best to give effect to the acknowledged purpose which is common ground between the parties, there must be some compelling reason, not just because it may be inconvenient in circumstances that have arisen in the cases currently before the Court, but there must be some compelling reason why the purpose that is proffered by us is somehow not achieved by the section in its current form and that some other purpose not yet identified requires a
reading down, importing concepts that are inconsistent, not just unknown in the discourse of looking at whether a person has the status, because it must necessarily not import knowledge if it is inhering in birth and by reason of a legal relationship. Some purpose must be proffered, which it has not been, to say that this should import the elements of voluntariness and knowledge, which our learned friends contend for.
If your Honours please, it is for those reasons that we say the question should be answered in Mr Joyce’s case, as we have set out in paragraph 20, that his election should be declared void because, by reason of section 44(i), he was incapable of being chosen or sitting.
GAGELER J: Mr Merkel, before you sit down, just one historical question. We were taken by Mr Gleeson to the Senate Standing Committee report which records that as at 1981, so far as the committee was aware, no person had ever been disqualified under section 44(i). Does that accord with your historical researches?
MR MERKEL: I have no reason to doubt that, your Honour. We are not aware of it, your Honour. We will try and see if it has been.
GAGELER J: There is no need to take it further.
MR MERKEL: Thank you, your Honour. If the Court pleases.
KIEFEL CJ: Mr Kennett.
MR KENNETT: If the Court pleases. Your Honours have quite detailed written submissions and I seek only to emphasise some matters that seem to require it in the light of the oral argument. We begin, as our learned friends for Mr Windsor did, with Sykes v Cleary, noting that the reasoning on the section 44(i) issue in that case is strictly speaking obiter but considered obiter and no party before you has submitted that it ought be disregarded or treated as wrong.
I wish to deal with Sykes firstly at the level of what it says about principle, which is paragraph 2 of our oral outline, but to add a couple of observations about what Sykes deals with. If I could perhaps anticipate those by observing that it is certainly right that the Court in Sykes did not have before it a case involving a natural‑born Australian citizen, let alone one who had a pre‑existing citizenship of another country since birth.
Nevertheless, the analysis in Sykes comfortably deals, in our submission, with those cases within the scope of the principles that one can discern in there. The main point that we would seek to make about Sykes is that it does not provide comfort for a proposition that the operation of section 44(i) is subject to an unwritten exception based on the conduct or beliefs of the person alleged to be disqualified.
Now, it does not invite consideration of whether that person has in the circumstances acted reasonably. Rather, we would submit, questions as to whether foreign citizenship could be effectively renounced, and if not, what steps are reasonably available to seek to do that, are factors that inform what we refer to as the choice or law question or perhaps one could also call it the rule of recognition question.
Now, your Honours by now may have worn holes in your copies of Sykes, but can I hopefully quickly indicate the passages in that case which we would emphasise. We, like Mr Gleeson, would begin with Justice Brennan whose reasoning, we submit, indicates the correct approach most clearly and who was referred to, as Mr Gleeson noted, later by the plurality in Sue v Hill.
Could we start at page 109 in the paragraph that begins “The purpose of this sub‑section”? His Honour refers to three categories of disqualification, and we would note the terms in which those categories are stated, and in particular they are stated in objective terms, the second category covering the case where the duty is “reciprocal to the status”, and the third category “where the duty is reciprocal to the rights or privileges conferred”, the status and the rights or privileges of course being matters which exist independently of any knowledge or intention on the part of the candidate.
We would then move, if we may, to page 110. His Honour in the paragraph that begins “The third category” again states that in objective terms and notes that people who are:
are under the protection of a foreign power as though they were subjects or citizens –
and notes that those people:
may owe a duty of allegiance or obedience –
and refers to Joyce’s Case which of course was the case about Mr Haw‑Haw to which my learned friend, Mr Walker, referred. Then, importantly for our submission, in the next paragraph his Honour says:
The second and third categories apply when, under the law of a foreign power, the person owes allegiance . . . Although s. 44(i) is part of the municipal law of Australia –
and so on, these rights:
are generally ascertained by reference to the municipal law of the foreign power -
and cites Oppenheimer v Cattermole, so that the concept of a choice of law question is there introduced. This is taken further on page 112 in the first full paragraph where his Honour says:
that issue is ordinarily determined by reference to the municipal law of the foreign power. The general rule, however, is subject to qualifications –
and there is a quotation from Lord Cross in Oppenheimer referring to what has been referred to in a shorthand way as exorbitant foreign laws. His Honour notes that:
That qualification has no application –
here and says at about point 7:
There is no reason to hold that the application of the laws of the second and third respondents’ respective native countries exceeds the jurisdiction in matters of nationality which international law would recognize.
We will say the same thing in due course about the laws that are in issue in the three cases in which I am involved, and then his Honour says:
However, recognition by our municipal law –
so we are still talking about a rule of recognition:
is subject to a further qualification –
which is referred to at the bottom of the page as one based on public policy. Then, over on to page 113 in the first paragraph, section 44(i) and its purposes are introduced as an element, a critical element in what has been referred to as a public policy exception – and I think Mr Gleeson observed one which could be rebadged as a constitutional imperative objection. His Honour elaborates on that for the rest of page 113, which I will not read to you, by reference to the objectives served by section 44(i).
BELL J: Are the examples that his Honour gives there, on page 113, also caught up by his Honour’s first embrace of Lord Cross’ statement in relation to laws that are, to use the shorthand, exorbitant?
MR KENNETT: There is a very significant degree of overlap, at least, we would say.
BELL J: Yes. Either of the laws that his Honour indicates on page 113 one would think might be caught – the mischievous law, making every parliamentarian a citizen of a foreign country. His Honour then comes back to laws purporting to affect nationality of persons who have no connection or only a very slender connection.
MR KENNETT: Yes, each of those examples, we accept, will already be within the notion of exorbitance, as founded on the previous page. It is not clear to us, with respect, how much this really adds to that notion, although it does root it in Australian constitutional concerns.
EDELMAN J: In a sense, exorbitance really does not do any work on its own. It is just an indicator of what might be contrary to the constitutional imperative. So it is not a question of international law itself, directly giving rise to a refusal to recognise, but international law is just one factor that might be considered in deciding whether the constitutional imperative is met.
MR KENNETT: Yes, we accept that, with respect. Can I just note a couple of things on page 113? Firstly, at about point 3, his Honour refers to a foreign law that “is incapable in fact of creating a sense of duty” or of “enforcing” any duty of allegiance. Our learned friends yesterday emphasised the first part of that and rather glossed over the second. But we would note that the concern of the provision, as his Honour expounded, is not only with felt allegiances but with duties under foreign law which could conceivably be enforced against a person and the examples that Mr Gleeson gave earlier in relation to military service and other matters under New Zealand law tie in with that notion. The other thing we would observe about page 113 is, starting at about point 7, where his Honour says:
A second situation occurs –
This is the reasonable‑steps exception. His Honour puts that in terms:
when an Australian citizen has done all that lies reasonably within his or her power (i) to renounce the status . . . and (ii) to obtain a release from any such duty.
We emphasise that because this is not put in terms of “has the person acted in a reasonable way based on his or her subjective knowledge and circumstances?” This is put in terms of “has everything been done that could reasonably be done to renounce the status?” His Honour, at the bottom of the page, refers to military service, which comes back to the notion of reciprocity that I emphasised earlier. We also rely on what is said over the page and up to the end of the first paragraph on page 114.
Justice Dawson, at page 131, is to similar effect, we would say. His Honour, at about point 3 in the paragraph that begins “At common law”, once again puts the choice of law issue prominently. At about point 4 on the page, his Honour agrees with the plurality and with Justice Brennan:
that s. 44(i) should not be given a construction that would unreasonably result in some Australian citizens being irremediably incapable of being elected –
The reference to “irremediably incapable” is important, we say, because read according to its terms and applied objectively the paragraph is capable of catching people whose conduct might be thought to be innocent or not subject to a particularly high degree of criticism.
But those persons, at least the persons before the Court in these cases, and people generally who have a foreign citizenship will not be in a position where they are unable to do something about it and will not be, except in the case of perhaps an extreme law that does not permit renunciation, will not be rendered irremediably incapable of being elected to either House of Parliament by the application or by the recognition of that foreign law. Then his Honour in the next paragraph puts aside extreme examples, but then says:
a person who is a subject or citizen of a foreign State by virtue of the municipal law of that State will not be incapable of being chosen . . . if he has taken all steps that could reasonably be taken –
Once again, like Justice Brennan, put in terms of all steps that could reasonably be taken and not, we say, inviting an inquiry into the state of mind or other aspects of the conduct of the person in the particular case. We would just invite your Honours’ attention – I will not read it – to the rest of that passage that goes to the end of the first paragraph on page 132.
NETTLE J: Mr Kennett, how does the “person’s knowledge” there referred to bear on it, in the fourth‑last line?
MR KENNETT: The fourth‑last line on page 131?
NETTLE J: Page 131.
MR KENNETT: We would read that as feeding – in the light of how his Honour puts it a few lines earlier, we would read that as feeding into the rule of recognition issue perhaps as a pointer to whether the foreign law purports to confer citizenship in circumstances of too remote a connection with the country. Apart from that, I accept the relevance of knowledge, the person’s subjective knowledge is not entirely clear. A similar ‑ ‑ ‑
KEANE J: Well, it could be an indication, could it not, of the practical remoteness or slender connection, for example, the Italian law that confers citizenship by descent in perpetuity? It is a practical demonstration that someone who has lived in Australia or is the descendent of people who have lived in Australia for four generations. It is the other side of the coin of the slenderness of the connection, is it not?
MR KENNETT: It may well be, your Honour, yes. So if, as a practical matter, the person has no idea and has no reason to have any idea ‑ ‑ ‑
KEANE J: No reason to have any idea.
MR KENNETT: ‑ ‑ ‑ that they have an ancestor from let us say Italy but it could be somewhere else and are therefore possibly a citizen of that country, then that might be an indicator that this foreign law is not one which would be applied for the purposes of section 44.
KEANE J: Or that Australian law would not recognise it as having such – on such a slender basis an effect on Australian political life.
MR KENNETT: Yes.
EDELMAN J: Hence, no steps are reasonably then required to be taken.
MR KENNETT: The way that it would work on our analysis of the case is that it would be, in effect – I was going to say “exorbitant” but that is asking that word to do too much work – but it would be an instance of a foreign law which ought not be applied to determine the question of whether someone is a foreign citizen or not.
EDELMAN J: Yes, but the reason why Justice Dawson is then mentioning it in the sentence after his discussion of what steps are reasonably required to be taken is because if that were the case then no steps are reasonably required to be taken.
MR KENNETT: That would be right as well. Yes, I accept that. Could I go quickly to the plurality reasoning where, if we start at the bottom of page 105, we see reference to the fact that:
The common law recognizes the concept of dual nationality -
and, at common law, the ordinary common law choice of law rule is noted there as well in the last sentence at 105 and over on to the top of 106. Then, on 107, having disposed of the argument in relation to real or true nationality, or in the course of disposing of that argument, in the paragraph that starts “However”, their Honours pose the question, as raised by section 44(i):
is the candidate a subject or citizen –
and so forth. That seems to have some resonance in the parliamentary committee report to which your Honours were taken earlier. But we note that it is a question that is framed in objective terms based on the existence or not of a status. Then, the common law choice of law rule is noted again. Then their Honours say:
But, there is no reason why s. 44(i) should be read as if it were intended to give unqualified effect to that rule of international law.
So, what is being done now is the introduction of a qualification on what the common law would have as its choice of law rule. Then, for the rest of the page, the reasons why – or the reasons for that qualification are elaborated. So the functions performed by section 44 in the constitutional scheme are reasons for potentially choosing not to apply foreign law in answering the objective question that section 44(i) poses. There is reference to, at the bottom of the page:
notwithstanding that he or she had taken reasonable steps –
That is not as directed as the comparable passages that I have referred to in the reasoning of Justice Brennan and Justice Dawson. Then, over the page on 108, there is a paragraph which I think I foreshadowed gives rise to perhaps some lack of clarity, including where their Honours note that it is relevant to bear in mind what a person might have believed as a result of having been naturalised.
That paragraph, we say, can sensibly be read, as your Honour Justice Bell suggested yesterday, as part of the consideration of circumstances that would feed into that choice of law question that I have identified. But whatever their Honours had in mind when they referred to the belief of a person that might arise from having gone through a naturalisation ceremony, it did not help Mr Kardamitsis who, on the facts, had such a belief and who the plurality, along with the other Justices to whom I have referred, held was disqualified.
I want to say a little bit more about Mr Kardamitsis in a second but can I note that the conclusions that we seek to get to from that analysis of Sykes we say, and we have explained this in written submissions, that if one needs an escape hatch that avoids results that are inconsistent with the purposes of the section or inconsistent with the constitutional scheme of representative government, that escape hatch is supplied by the rule of recognition seen in Sykes on our construction and it is not necessary to insert additional words into the provision.
Thus our construction, unlike that propounded by the Attorney and substantially adopted by our other learned friends on the other side of the Bar table, does not involve any kind of implication of any sort of qualification into the text any words that are not there, but the necessity for a choice of law rule, the substance of the rule indeed, and the inherent limits on that rule are connoted, we say, by the reference in the paragraph itself to “citizen or subject of a foreign power” and the reference to “rights and privileges of a citizen of a foreign power”.
Thus, when my learned friend, the Solicitor, says on anybody’s construction one has to read the paragraph down in some way, we respectfully reject that. We certainly say that on a construction that seeks to introduce a mental element, one does have to read something into the text and one needs to justify that reading in. The construction which we propound the text itself does the work and the text itself introduces the rule by which an absurd or undesirable from a representative government point of view consequences can be averted.
I said I was going to say something about Mr Kardamitsis. Firstly, as to what the remarks in Sykes should be understood to deal with ‑ my learned friend, Mr Gleeson, has already said most of this – but could we emphasise – and this is as to whether the statements in this case, to the extent that they relate to that gentleman, should be regarded as findings about his status at the time of nomination on the one hand or advice about his current circumstances and possible future position on the other, we say it is the former.
We would note the terms of question (c), set out on page 102, which the plurality Justices then said that it would be appropriate to answer. They did not answer it in a formal way but answered it by what they said by way of reasoning. Of course, it is also right, as my learned friend said, that the jurisdiction of the Court in that case was limited to the issues that had been raised in respect of the by‑election that had occurred.
Could we also note the contents of the stated case, which can be found starting on page 78 of the report and including a lot of material which I will not be reading, but your Honours see at paragraph 34 on page 85, where it says it was first brought to Mr Kardamitsis’ attention that he might not be qualified after he was nominated and he was informed that there were procedures available, but then what the stated case does not do is canvass facts or events occurring after the declaration of the poll.
So their Honours, certainly as we read it, just did not know what Mr Kardamitsis had done, if anything, since the poll. He might have effected a renunciation; he might not. So their Honours should not be taken ‑ ‑ ‑
GAGELER J: I am not sure that is entirely correct. If you look at the bottom of page 85, about seven or eight lines up from the bottom:
After the petition was issued ‑ ‑ ‑
MR KENNETT: Yes, that is right. That is after the election.
KIEFEL CJ: It would have to be after the declaration.
MR KENNETT: Yes, your Honour is right. It goes after the declaration of the poll to that extent, but my larger point I think still holds good, which is that the Court did not have, so far as we can see, either evidence or an agreed fact as to whether since that time Mr Kardamitsis had done something to effect a renunciation or not. Certainly in the light of that and in the light of the terms of the question, their Honours, we would say, should not be regarded as having given advice about the future rather than a ruling about the past unless they said so fairly clearly.
GAGELER J: It would also follow that what is recorded at the bottom of page 85 was simply irrelevant.
MR KENNETT: Yes. If one understands the case in that way, we see that Mr Kardamitsis was held to have been disqualified by force of section 44(i), notwithstanding his subjective belief as set out in the agreed facts that by making the declaration that he made on naturalisation he had ceased to have any connection with Greece.
KIEFEL CJ: Is there a distinction to be drawn between knowledge of the fact of citizenship and a belief that it has effectively been renounced? It is the latter that I think was his state of mind, as recorded in the joint judgment.
MR KENNETT: I think the answer, your Honour, depends on how one seeks to construe the section. I do not mean to avoid the question but, on our construction, which we say is supported by the analysis certainly of the majority Justices in Sykes, one just does not need to know about the person’s subjective belief as to whether he or she had ‑ ‑ ‑
KIEFEL CJ: We might be at cross‑purposes. I thought you were touching upon whether or not the joint judgment actually grappled with the question of – or it is part of the basis upon which it was reasoned that Mr Kardamitsis had a particular state of knowledge and that it was therefore irrelevant in their Honours’ view that he knew of the fact of his foreign citizenship. I am not sure that that is what you were saying, though.
MR KENNETT: Their Honours record the facts from 103 to 105 in terms consistent with the stated case which include a reference to his beliefs. At the bottom of page 104, it is noted that:
It was first brought to –
his attention:
that he might not be qualified –
at a later time, after he had been nominated. I think there is another reference earlier to – higher up on page 104:
In becoming an Australian citizen, he took a conscious and serious step which he believed involved his breaking his bond of allegiance with Greece ‑ ‑ ‑
KIEFEL CJ: Quite.
MR KENNETT: What I seek to emphasise is, despite that, he is held to have been disqualified by section 44(i) at the time of his nomination. What I seek to say about that is that that is very difficult to square with a construction of the section that involves a mental element. The only way one could distinguish Senators Canavan, Nash and Xenophon from Mr Kardamitsis would be to import some kind of imputed or constructive knowledge in the case of somebody who knew of a former citizenship and thought they had divested themselves of it.
Our friends set their faces very firmly against constructive knowledge. Yet, it seems they need some sort of concept of that kind if they are to accept, as I understand they do, that Sykes is right in relation to Mr Kardamitsis. The same could be said, of course, of Mr Ludlam in these cases who, so far as one can see the facts, also thought that by becoming naturalised he would cease to be a New Zealander.
Now, that as far as I am aware has not been put in issue by anybody. If that is the fact, then he on the face of it is in the same position in relation to any mental element as the senators with whom I have to deal who all contend that in the absence of actual knowledge they are not caught by the subsection. Now, they can be saved and Mr Ludlam can be disqualified, it seems to us, only if some sort of concept of constructive knowledge applies in his case.
The introduction of a mental element which our friends seek to achieve results in a very great difficulty, we say, in distinguishing between the cases where our friends say there is not disqualification and the case of Sykes where it was decided that there was. Your Honours, that completes what I wanted to say in connection with Sykes v Cleary. I note the time.
KIEFEL CJ: That might be a convenient time, thank you. The Court will adjourn until 9.45 am tomorrow for pronouncement of orders and otherwise until 10.15 am.
AT 4.15 PM THE MATTER WAS ADJOURNED
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