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Re Gallagher

Re Gallagher

Case [2018] HCA 17 9 May 2018

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HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
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 KATY GALLAGHER
Re Gallagher
[2018] HCA 17
9 May 2018
C32/2017
ORDER
The questions referred to the Court of Disputed Returns by the Senate be answered as follows:
Question (a)
Whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation for the Australian Capital Territory in the Senate for the place for which Katy Gallagher was returned?
Answer
Yes.
Question (b)
If the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled?
Answer
The vacancy should be filled by a special count of the ballot papers. Any direction necessary to give effect to the conduct of the special count should be made by a single Justice.
Question (c)
What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?
Answer
Unnecessary to answer.
Question (d)
What, if any, orders should be made as to the costs of these proceedings?
Answer
Unnecessary to answer.
Representation
J T Gleeson SC with J E Mack appearing on behalf of Senator Gallagher (instructed by Maurice Blackburn Lawyers)
S P Donaghue QC, Solicitor-General of the Commonwealth with P D Herzfeld and J D Watson appearing on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Re Gallagher
Constitutional law (Cth) – Parliamentary elections – Senate – Questions referred to Court of Disputed Returns by Senate – Where senator was foreign citizen at date of nomination for election – Where renunciation of foreign citizenship registered after return as duly elected senator – Whether senator disqualified by reason of s 44(i) of Constitution because of foreign citizenship – Whether foreign law irremediably prevented participation in representative government.
Words and phrases – "a subject or a citizen … of a foreign power", "constitutional imperative", "incapable of being chosen", "irremediably prevent".
Constitution, s 44(i).

KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ. On 31 May 2016 Senator Katy Gallagher lodged her nomination as a candidate for election to the Senate in the federal election to be held on 2 July 2016. Senator Gallagher had already served as a senator from 26 March 2015, having filled a vacancy left by the resignation of a senator. On 2 August 2016 Senator Gallagher was returned as a duly elected senator for the Australian Capital Territory.
Section 44(i) of the Constitution in relevant part provides:
"Any person who:
(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Gallagher

Details

AGLC: Re Gallagher [2018] HCA 17
Case: [2018] HCA 17
Decision Date: 9 May 2018

CaseChat Overview and Summary

The High Court of Australia, constituted as the Court of Disputed Returns, considered questions referred by the Senate concerning the eligibility of Katy Gallagher to sit as a Senator for the Australian Capital Territory. The dispute arose because Senator Gallagher was a citizen of the United Kingdom at the time of her nomination for the election, and her renunciation of that citizenship was registered after she was returned as a duly elected Senator.

The Court was required to determine whether Senator Gallagher was disqualified from being elected or sitting as a Senator by reason of section 44(i) of the Constitution, which provides that any person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or citizen or entitled to the rights or privileges of a subject or citizen of a foreign power, shall be incapable of being chosen or of sitting as a senator. The central legal issue was whether her status as a British citizen at the time of nomination rendered her incapable of being chosen, and if so, whether her subsequent renunciation rectified this disqualification.

The majority of the Court reasoned that section 44(i) of the Constitution imposes an objective standard of eligibility at the time of nomination and election. It was held that Senator Gallagher was a citizen of a foreign power at the date of nomination, and this fact alone rendered her incapable of being chosen as a Senator. The Court found that her subsequent renunciation of British citizenship did not cure the defect that existed at the time of her nomination and election. The constitutional imperative was that a person must be free from any allegiance or citizenship of a foreign power at the point of being chosen.

The Court answered the questions referred by the Senate. It determined that a vacancy existed in the representation for the Australian Capital Territory in the Senate for the place for which Katy Gallagher was returned, by reason of section 44(i) of the Constitution. The Court further ordered that this vacancy should be filled by a special count of the ballot papers, with any necessary directions to give effect to this to be made by a single Justice.

Orders

Orders of the court

The questions referred to the Court of Disputed Returns by the Senate be answered as follows:

Question (a)

Whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation for the Australian Capital Territory in the Senate for the place for which Katy Gallagher was returned?

Answer

Yes.

Question (b)

If the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled?

Answer

The vacancy should be filled by a special count of the ballot papers. Any direction necessary to give effect to the conduct of the special count should be made by a single Justice.

Question (c)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

Unnecessary to answer.

Question (d)

What, if any, orders should be made as to the costs of these proceedings?

Answer

Unnecessary to answer.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ GAGELER J EDELMAN J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ, GAGELER J,

Full text does not contain this section.

Actions

Citations

Re Gallagher [2018] HCA 17

Most Recent Citation

Kirk v Commonwealth of Australia [2025] FCA 838

Cases Citing This Decision

Kirk v Commonwealth of Australia [2025] FCA 838
Citation 1 (Para 5)

…question arises under s 44(i), it is answered primarily by reference to the law of the relevant foreign country. In Re Gallagher (2018) 263 CLR 460; [2018] HCA 17, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ explained (at 468 [9]): Whether a person is a foreign citizen to whom s 44(i) applies is necessarily de…
Dirani v The Queen [2021] NSWCCA 202
Citation 2

…House v The King (1936) 55 CLR 499; [1936] HCA 40 Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 17 Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 Makita (Australia) Pty Ltd v Sprowles…
Gerner v Victoria [2020] HCA 48
Citation 3 (Para 14)

…2, 183, 231, 284‑285; MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601 at 618 [20], 627 [54], 635 [83], 656 [72]; Re Gallagher (2018) 263 CLR 460 at 472 [24].…

See all citing cases →

Cases Cited

Re Nash (No 2) [2017] HCA 52
Citation 1 (Para 20)

…member of the House of Representatives is returned as elected[31]. [31] Re Nash (No 2) (2017) 92 ALJR 23 at 28-31 [20]-[39]; 350 ALR 204 at 209-213; [2017] HCA 52.…
Re Canavan [2017] HCA 45
Citation 2 (Para 3)

…efer to the process of being chosen, of which nomination is an essential part[2]. [1] Re Canavan (2017) 91 ALJR 1209 at 1213 [3]; 349 ALR 534 at 537; [2017] HCA 45. [2] Sykes v Cleary (1992) 176 CLR 77 at 100-101; [1992] HCA 60.…
Murphy v Electoral Commissioner [2016] HCA 36
Citation 3 (Para 4)

…59 [161], 117 [368], 121 [384]; [2010] HCA 46; Murphy v Electoral Commissioner (2016) 90 ALJR 1027 at 1038 [34], 1069 [239]; 334 ALR 369 at 380, 422; [2016] HCA 36.…
Wotton v Queensland [2012] HCA 2
Citation 4 (Para 4)

…displace or ignore all significant limitations or burdens imposed by a recognised foreign law. [51] Wotton v Queensland (2012) 246 CLR 1 at 30 [76]; [2012] HCA 2. [52] Roach v Electoral Commissioner (2007) 233 CLR 162 at 182 [24]; [2007] HCA 43; Rowe v Electoral Commissioner (2010) 243 CLR 1 at 59 [161], 117 […
Rowe v Electoral Commissioner [2010] HCA 46
Citation 5 (Para 4)

…ectoral Commissioner (2007) 233 CLR 162 at 182 [24]; [2007] HCA 43; Rowe v Electoral Commissioner (2010) 243 CLR 1 at 59 [161], 117 [368], 121 [384]; [2010] HCA 46; Murphy v Electoral Commissioner (2016) 90 ALJR 1027 at 1038 [34], 1069 [239]; 334 ALR 369 at 380, 422; [2016] HCA 36.…
MZXOT v Minister for Immigration and Citizenship [2008] HCA 28
Citation 6 (Para 24)

…520 at 567; [1997] HCA 25; MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601 at 618 [20], 623 [39], 627 [54], 635 [83], 656 [171]; [2008] HCA 28.…
Roach v Electoral Commissioner [2007] HCA 43
Citation 7 (Para 4)

…foreign law. [51] Wotton v Queensland (2012) 246 CLR 1 at 30 [76]; [2012] HCA 2. [52] Roach v Electoral Commissioner (2007) 233 CLR 162 at 182 [24]; [2007] HCA 43; Rowe v Electoral Commissioner (2010) 243 CLR 1 at 59 [161], 117 [368], 121 [384]; [2010] HCA 46; Murphy v Electoral Commissioner (2016) 90 ALJR 1027…
Regie Nationale Des Usines Renault SA v Zhang [2002] HCA 10
Citation 8 (Para 24)

…n the Conflict of Laws , 5th ed (rev) (1857), §32, referred to in Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 511-512 [50]; [2002] HCA 10 and The "Halley" (1868) LR 2 PC 193 at 203. [38]Savigny and Guthrie, A Treatise on the Conflict of Laws , 2nd ed (rev) (1880) at 76.…
Sue v Hill [1999] HCA 30
Citation 9 (Para 4)

…claration of renunciation of that citizenship was registered by the Home Office of the United Kingdom. [3] Sue v Hill (1999) 199 CLR 462 at 492 [65]; [1999] HCA 30.…
Lange v Australian Broadcasting Corporation [1997] HCA 25
Citation 10 (Para 24)

…ch it is based, more widely. The qualification operates in its own terms. [17] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567; [1997] HCA 25; MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601 at 618 [20], 623 [39], 627 [54], 635 [83], 656 [171]; [2008] HCA 28.…
Sykes v Cleary [1992] HCA 60
Citation 11 (Para 3)

…ssential part[2]. [1] Re Canavan (2017) 91 ALJR 1209 at 1213 [3]; 349 ALR 534 at 537; [2017] HCA 45. [2] Sykes v Cleary (1992) 176 CLR 77 at 100-101; [1992] HCA 60.…
[1945] KB 7 [1945] KB 7
Citation 12 (Para 25)

…176 CLR 77 at 112. [42](1992) 176 CLR 77 at 135-136. [43](1999) 199 CLR 462 at 528-529 [175]; [1999] HCA 30. [44] R v The Home Secretary; Ex parte L [1945] KB 7 at 10; Lowenthal v Attorney-General [1948] 1 All ER 295 at 299; Oppenheimer v Cattermole [1976] AC 249 at 277-278, 282-283.…
[1976] AC 249 [1976] AC 249
Citation 13 (Para 25)

…HCA 30. [44] R v The Home Secretary; Ex parte L [1945] KB 7 at 10; Lowenthal v Attorney-General [1948] 1 All ER 295 at 299; Oppenheimer v Cattermole [1976] AC 249 at 277-278, 282-283.…
[1903] 1 KB 444 [1903] 1 KB 444
Citation 14 (Para 1)

…slender connexion with the foreign power, exceeds the jurisdiction recognized by international law". [45](1992) 176 CLR 77 at 112-113. See R v Lynch [1903] 1 KB 444; R v The Home Secretary; Ex parte L [1945] KB 7; Lowenthal v Attorney-General [1948] 1 All ER 295. [46](1992) 176 CLR 77 at 113. [47][1976] AC 249 at…

Legislation Cited

Commonwealth Electoral Act 1918 (Cth) 163, 164, 378
4 mentions (from Para 5)
Badenach v Calvert
1 mention (from Para 13)
Behan v Obelon Pty Ltd
1 mention (from Para 13)
British Nationality Act 1948 c.56
1 mention (from Para 13)
British Nationality Act 1981 c.61
1 mention (from Para 13)
Immigration Act 1971 c.77
1 mention (from Para 13)
Nguyen v The Queen
1 mention (from Para 13)