Re Gallagher

[2018] HCATrans 46

[2018] HCATrans 046

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Canberra  No C32 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 KATY GALLAGHER

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 MARCH 2018, AT 10.19 AM

Copyright in the High Court of Australia

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honours, I appear with my learned friends, MR P.D. HERZFELD and MS J.D. WATSON, for the Attorney‑General of the Commonwealth.  (instructed by Australian Government Solicitor)

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR J.E. MACK for Senator Gallagher.  (instructed by Maurice Blackburn Lawyers) 

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, this reference from the Senate concerns whether Senator Gallagher was incapable of being chosen as a senator at the 2016 federal election by reason of section 44(i) of the Constitution. There is no dispute that both at the time when Senator Gallagher nominated as a candidate at that election on 31 May 2016, and indeed also on the day of the polling on 2 July 2016, Senator Gallagher was a British citizen. It follows that the senator held a status that, according to the natural and ordinary meaning of section 44(i), rendered her incapable of being chosen as a senator at that election.

The dispute concerns whether Senator Gallagher falls within an exception that, as a matter of constitutional implication, qualifies the express language of section 44(i). In addressing that issue, I propose to structure the Attorney‑General’s oral submission in three parts: first, to address what this Court decided in Re Canavan and how the principles identified in that case apply to Senator Gallagher; second, to respond to some of the specific arguments that are advanced on the senator’s behalf; and, third, in the alternative, to address, if it is relevant to ask whether the senator took all steps reasonably required by foreign law to renounce her foreign citizenship, the reasons why, in our submission, she did not do so.

Can I start then with Re Canavan (2017) 91 ALJR 1209. I propose to make five points about what that case decided and then to apply those identified principles to the facts. The first and we submit rather unsurprising point is that Re Canavan affirms that the starting point is the text, the ordinary and natural meaning of the text of section 44(i).

Without taking your Honours through the references in the judgment, that phrase, “the natural and ordinary meaning of the text”, appears many, many times in paragraphs 19, 27, 47, 48, 52 and 57, and it was principally because of the ordinary, natural meaning of the text that the Court in Re Canavan rejected the various alternatives that were proffered in that case as to reasons to confine the operation of the provision.  The text of the provision was clearly of fundamental importance to the decision that was made in that judgment.

In those circumstances, we submit that it is a striking feature of Senator Gallagher’s submissions that they pay no attention at all to the text of section 44(i) which, when your Honours go back to it – I know you are well familiar with it – states in terms an indicator of the temporal specification of the period of the disqualification that the section creates. The text refers to a person who is “a subject or a citizen of a foreign power”.

Now, quite clearly that text does not extend the disqualification to a person who was a citizen or subject of a foreign power such that a person who once held that status but has effectively renounced it under the foreign law thereby takes themselves outside the scope of the disqualification that the section creates and your Honours are aware that there have been quite a large number of examples of people who have taken themselves outside the scope of the disqualification in that way, including in relation to the United Kingdom – Mr Joyce; Mr Alexander.

On the other hand, looking at the text, it is obvious that a person still is a citizen of a foreign power if they have started the process of renouncing that citizenship under the foreign law but that process is not complete, that is, the person is still a citizen of a foreign power even if they have taken all the steps that are within their power pursuant to that law to renounce, but the renunciation has not yet progressed to the stage under foreign law that it is necessary that the person has ceased to hold that status.

It follows, we submit, that if the taking of those steps is relevant, as the senator contends, even though the steps have not resulted in the cessation of foreign citizenship, that can only be because in some constitutionally proper way the ordinary meaning of the text of 44(i) is to be confined or qualified.

The second point we make about Re Canavan, your Honours, is that it confirms that a person’s status as a foreign citizen is both the focus of the provision and is a status that is to be identified principally by reference to foreign law.

If your Honours could take up the judgment in ReCanavan and turn to paragraph [21], you will see that in the discussion early under the heading “The text and structure of s 44(i)” – and I will come back to paragraph [20] in just a moment – it is recorded that:

the words “subject”, “citizen” and “entitled to the rights” connote a state of affairs involving the existence of a status or of rights under the law of the foreign power.

In paragraph [23], a little over halfway down the paragraph, there is a reference to:

a state of affairs existing under foreign law, being the status of subjecthood or citizenship –

of a foreign power.  And, then, in more detail at [37] and [38] on page 1218 of the print, under the heading “Subject or citizen – the role of foreign law” the Court records that:

Whether a person has the status of a subject or a citizen of a foreign power necessarily depends upon the law of the foreign power.  That is so because it is only the law of the foreign power that can be the source of the status of citizenship or of the rights and duties involved in that status.

And the Court goes on in paragraph [38] to note that that significance of foreign law in determining the status of a person as a foreign citizen is supported by the judgments of the Court in Sue v Hill and also in Sykes v Cleary.

There is nothing in any of those discussions of the significance of status under foreign law to suggest that the Court is concerned with some heavily attenuated or modified or abbreviated subset of foreign law which is a point of some significance later when I come to address some of the particular submissions advanced on behalf of Senator Gallagher.  Your Honours will see the same focus on the significance of status arising under foreign law in both paragraphs [71] and [72] of the judgment on page 1223.  So, for example, in the opening of paragraph [71]:

Section 44(i) operates to render “incapable of being chosen or of sitting” persons who have the status of subject or citizen of a foreign power. Whether a person has the status of foreign subject or citizen is determined by the law of the foreign power in question.

I will come back to paragraph [72] shortly.  In our submission, your Honours, the reason that the Court focused so heavily on status under foreign law is inconsistent with Senator Gallagher’s invitation to the Court to give determinative effect to the taking of steps by the foreign citizen rather than to the effectiveness of those steps under the foreign law.

The reason for that is that the Court in Canavan, in our submission, embraced Justice Brennan’s analysis in Sykes v Cleary which gave determinative significance to the rights and reciprocal duties that arise under foreign law by reason of the possession of the status of being a subject or foreign citizen and, of course, those rights and reciprocal obligations continue to exist while the status continues to exist under foreign law. The fact that a person may or may not have taken steps that are not effective under the foreign law to relinquish the status has no effect whatsoever on the existence of the rights and duties that Justice Brennan identified as lying at the heart of the purpose of section 44(i).

So, if your Honours go back to paragraph [20] of Canavan, you will see there the Court quoting – picking up a lengthy quotation from Justice Brennan’s reasons in Sykes and in this paragraph his Honour is identifying the different categories or limbs of section 44(i) and three lines down:

The second category covers the case where the duty is reciprocal to the status conferred by the law of a foreign power.

In paragraph [26] in the last five or six lines of the paragraph, having rejected the idea that knowledge was required, the Court said:

The answer to that point is that, as a matter of the ordinary meaning of the second limb of s 44(i), proof of actual allegiance as a state of mind is not required.

Why?  Because Justice Brennan:

as Brennan J explained . . . the second limb is concerned with the existence of a duty to a foreign power as an aspect of the status of citizenship.

Then in paragraph [45], again quoting Justice Brennan, and here dealing with the proposition that a reasonable effort to comply was sufficient, the Court endorses Justice Brennan’s analysis that:

when some further step can reasonably be taken which will be –

The Court uses the words:

effective under the relevant foreign law to release that person from the duty –

Then that step has to be taken, and the explanation for that is in the next sentence:

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.

That same analysis appears, including the reference on the renunciation that is effective under foreign law, in Sykes v Cleary in another passage in Justice Brennan’s judgment at page 112 on the middle of the page, but I will not take your Honours to it.

All of that, in our submission, is significant because to focus, as the senator invites your Honours to do, on steps that fall short of being effective to renounce the foreign status is to give to section 44 an operation that does not intersect or does not address the problem that Justice Brennan there identified and that your Honours endorsed, because it would allow the situation where a person who may have taken those steps would not be disqualified by section 44(i), even though they remain subject to the rights and obligations reciprocal on the existence of status as a foreign citizen under foreign law. So it involves, in our submission, a very marked departure from the underlying analysis of the section that your Honours adopted in Canavan.

The third point that we make is – can be made very briefly by reference to paragraph [61] of the judgment, which is that your Honours unequivocally and expressly rejected the proposition that reasonable efforts to comply with section 44(i) were legally relevant to the operation of the section. As your Honours said:

Section 44(i) is not concerned with whether the candidate has been negligent in failing to comply with its requirements. Section 44(i) does not disqualify only those who have not made reasonable efforts to conform ‑ ‑ ‑

In other words, section 44(i) might disqualify a person, notwithstanding the fact that that person has made a reasonable effort to comply with the section. The reasonable effort is not the point. The question is did the person comply with the requirements? A similar point appears in paragraph [45] but again I will not go back to it.

The fourth point, your Honours, concerns the repeated use in the judgment in Canavan of the phrase “constitutional imperative”, which, in our submission, your Honours used in the judgment with the meaning that was made plain on repeated occasions in the judgment, commencing at paragraph [39]. This was by way of identifying a competing constitutional principle, that is, to some degree, intention with the constitutional objective underlying the operation of section 44(i). In paragraph [39] your Honours noted, by reference to Sykes, at the top of the second column:

An Australian court will not apply s 44(i) to disqualify by reason of foreign citizenship where to do so would be to undermine the system of representative and responsible government established under the Constitution.

So the imperative is grounded in the wider principles of representative and responsible government. Having then picked up the provisions in the Constitution that provide both for the initial qualifications and that indirectly empower the Parliament to update those qualifications in sections 16 and 34, your Honours then, at paragraph [43], referred to:

the evident intention of the Constitution that those of the people of the Commonwealth who are qualified to become senators or members of the House of Representatives are not, except perhaps in the case of a person “attainted of treason” . . . to be irremediably disqualified.

That concept appears again in the next paragraph, in [44]:

Consistently with that view, the Court in Sykes v Cleary recognised that an Australian citizen . . . will not be prevented from participating in the representative form of government ordained by the Constitution by reason of a foreign law which would render an Australian citizen irremediably incapable of being elected to either house of the Commonwealth Parliament. 

Again in [45] there is the quote I have already taken your Honours to, and in [46] a reference to Justice Dawson’s reasons in Sykes, where his Honour Justice Dawson referred to 44 (i) not being given:

a construction that would unreasonably result in some Australian citizens being irremediably incapable of being elected to either House of the Commonwealth Parliament. 

In our submission it is quite clear that when your Honours identified the constitutional imperative that an Australian citizen be able to participate in representative government, what your Honours were referring to was the fact that foreign law must not be permitted to create an irremediable incapacity or impediment to such participation. 

Your Honours were not suggesting, and obviously could not have suggested, that section 44(i) does not impose a burden upon the capacity of an Australian citizen to participate because that is the very purpose of the section - to prevent persons who are otherwise qualified from, in the specified circumstances, participating by seeking election as a senator or a member of the House. It is that quite specific and confined constitutional imperative that then explains the exception to the text of section 44(i) that your Honours recognised.

EDELMAN J: It is not really an exception, is it? It is a principle as to when the foreign law will be recognised. Section 44(i) itself has to contain some rule of recognition, and that was implicit in, particularly, Justice Brennan’s judgment but also in the joint judgment. The constitutional imperative is not an exception outside that. It is just part of the rule as to when - or the limited circumstances as to when the foreign law might not be recognised.

MR DONAGHUE: Yes, your Honour, but it comes, in our submission, from the need to reconcile section 44(i) as a matter of constitutional interpretation with the other provisions in the Constitution upon which the constitutional imperative is identified. So, in our submission, as a matter of construction of the section, as your Honours held in Canavan and in the earlier passage, generally speaking one goes to the foreign law.

So why does one not go to the foreign law?  Because – I am happy to put it as a limit on the rule of recognition – that confines the reference in particular circumstances.  I use the word “exception”, your Honours, because that word appears in paragraph [72], to which I was about to come, and this is the paragraph upon which our friends hang their entire case.

I will deal with [72] perhaps in a little more detail in response to some of Senator Gallagher’s submissions.  This is a section of the judgment summarising what has gone before obviously.  In the first sentence of paragraph [72], your Honours say:

A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power –

So that is Senator Gallagher.  She undoubtedly did, at the time she nominated, retain that status:

will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative –

and your Honours do not leave that phrase hanging, you explain what your Honours meant:

that an Australian citizen not be irremediably prevented by foreign law from participation in representative government.

So that is what one is looking for in order to depart from the plain and express meaning of the text or to limit the circumstances in which the foreign law is applied, one is looking for an irremediable prevention by reason of the foreign law.

Can I defer the second sentence for a few minutes and I will come back to how those paragraphs sit together.  In our submission, what your Honours say in the first sentence of paragraph [72], consistently with the whole discussion that leads up to it, reflects the way in which primary significance attaches to ordinary and natural meaning of the words but that there is a need to confine the extent to which those words require effect to be given to status under foreign law in the very limited circumstances there identified.

In our submission – and we have put this in writing as well – to the extent that the ordinary, natural meaning of the words is to be qualified, that is by a process of constitutional implication. Your Honours refer, in paragraph [13], to this limit as an “implicit qualification in s 44(i)”.

In our submission, like any other constitutional implication, one should confine it to the extent that it is necessary to do so in order to accommodate the competing constitutional value.  Of course, there are many cases where the Court has referred to that principle of necessity as limiting constitutional implication, including in Lange and MZXOT, amongst many others.

In our submission, that comfortably explains why the exception, if I can call it that, or the limit is confined to cases of irremediable prevention from participating because, absent some irremediable prevention of that kind, an Australian citizen who wants to participate by seeking to be chosen as a member of the House or the Senate can simply renounce their foreign citizenship and, having renounced that foreign citizenship, they will be a person who was a foreign citizen rather than a person who is and, on the completion of the process, there will be no reason why they cannot seek to be elected if they choose to do so.

So there is no necessity for any departure or limit on the plain and natural meaning of section 44(i) except in the case where the foreign law creates the irremediable impediment or incapacity to being chosen and so the necessity and the exception or limit align.

That also, in our submission, explains why the appropriate focus - and this was perhaps a clarification of the focus between Sykes and the judgment of the Court in Canavan - is not upon the reasonableness of the steps taken by a person assessed in some freestanding manner but instead upon the reasonableness of the requirements of the foreign law, that is, the focus is on the foreign law rather than the steps taken by the person.

We submit that that focus appears repeatedly in the judgment.  It appears in paragraph [69] twice.  It appears in paragraph [72], the sentence that I just read to your Honours.  It appears in paragraph [13].  It is a distinction that your Honour Justice Edelman will recall your Honour emphasised in a single judge matter in Re Barrow in dismissing on a separate basis, on an advisory opinion basis, an application that was brought by a prospective candidate for election who sought a declaration that he was not prevented from standing by section 44(i).

In our submission, the question posed by this limitation is whether the foreign law, either in its terms or in its operation, makes it impossible or not reasonably possible for a person to renounce their foreign citizenship and we take that, your Honours, from the discussion at paragraphs [68] and [69] in particular in the judgment.  In [68], your Honours discuss Sykes v Cleary and the position of Mr Kardamitsis and at the bottom of the second column on page 1222, your Honours note it was not sufficient – the steps he had taken were:

not sufficient to justify the conclusion that he had taken reasonable steps to divest himself of his foreign citizenship because under the foreign law he could have applied for the favourable exercise of a discretion by the appropriate Minister of the Greek government to release him from his citizenship.  The application for the favourable exercise of the discretion was a step reasonably open to him.

Your Honours then contrast that in [69] with a hypothetical example of a requirement of foreign law that a citizen may renounce only by an act of renunciation carried out within the territory of the foreign country.  The point is made that that requirement, that is to travel to the foreign country to do the act:

could be ignored . . . if his or her presence within that territory could involve risks to person or property.

In our submission, that example tends to suggest that absent the risk to person or property, a requirement to travel to the foreign country to renounce would not be a requirement that was unreasonably imposed by foreign law and, therefore, to suggest that the existence of some difficulty in complying with the law is not itself sufficient to mean that effect will not be given to the foreign law in determining status but there does, as the example demonstrates, come a point short of impossibility where it becomes unreasonably difficult in order to renounce and at that point the reconciliation of the constitutional imperative and the terms of 44(i) recognise that Australian law may not give determinative significance to the status under foreign law.

In our submission, the example tends to – and the analysis of the Court has this consequence that, in the case of a foreign law that involves multiple steps to renounce, so say, for example, you have to submit a form, you have to make a payment and you have to take military service in a country that is engaged in active conflict with another State, one focuses on the foreign law and says, “Well, are the requirements of the foreign law reasonable and, to the extent that they are reasonable, the Australian citizen has to take those steps?”

So, in my example just given, the foreign citizen could not say, “Looked at as a whole, the requirement to take two years of military service in a combat zone is unreasonable, therefore I can disregard the whole foreign law”.  They have to submit the form, they have to make the payment because those requirements of the foreign law are reasonable.  But to the extent that the foreign law imposes an unreasonable requirement it need not be given effect.  In other words, the person must manifest to the full extent that is reasonable their desire to relinquish their foreign status, but that limiting principle applies at the point where the burden is so great that it can properly be described as irremediably preventing participation in ‑ ‑ ‑

KIEFEL CJ:   Well, then, to an extent, the steps that may be taken that are capable of being undertaken by a person are relevant to the inquiry.  From what you have said, it is not just the question of the content and operation of a foreign law rendering the ultimate steps or a critical step impossible to fulfil the outcome of renunciation.  What I am trying to say is I take it that you are accepting that the inquiry is not just what the foreign law can be seen to require so that if there is an aspect of it which would mean obviously a degree of difficulty, if not impossibility, of compliance, then what it reasonably requires is not just internal what is in it but extends to what steps may be taken of the person.  So, in that sense, the words “reasonably requires” have a dual meaning.

MR DONAGHUE:   We accept that, your Honour.  In our submission, the focus is on the terms and operation of the law.  So, at least, in the first instance, one would focus on the terms of the foreign law and if they can be seen to impose an unreasonable requirement or a requirement that either makes it impossible to renounce or unreasonably difficult, then that will be enough.

KIEFEL CJ:   I am sorry, just to clarify that.  You would say a person would not need to take any steps in that situation?

MR DONAGHUE:   They would need to take all the reasonable steps.

KIEFEL CJ:   Even though it was impossible?

MR DONAGHUE:   Even though they would ultimately not lose their status under foreign law.  In our submission, when the Court in Canavan speaks of the steps that are reasonably required, that language accommodates the situation where some steps are reasonably required and some steps are unreasonably required.  Because the alternative is to say that, because I know that I will not ultimately be able to succeed in renouncing my status as a foreign citizen, I do not need to do anything, even though ‑ ‑ ‑

EDELMAN J:   What you are talking about really is, then, partial recognition of the foreign law but not complete recognition of it?

MR DONAGHUE:   The only part that is not recognised is the unreasonable part; that is what I am saying, your Honour.  That is our submission.  And, in our submission, that is consistent with the analysis set out in paragraph [69] in Canavan where the Court says that “Such a requirement” – that is, the requirement to go to the foreign country – “could be ignored”, in our submission, because otherwise, even though some aspects that would objectively manifest the desire to sever the allegiance with the foreign country would not need to be taken, even though they were reasonable requirements that needed to be taken.  And, in our submission, there is no necessity to exempt a person from those steps.

Ultimately, your Honours, in our submission, while interesting, this particular point does not matter in terms of the application of the principles to Senator Gallagher because there is no law of that kind that would warrant any refusal to recognise the full extent of the British law.  That is the point I come to now.  I said I would make five points and then apply, so I have made the five points we seek to make out of Canavan.

If one then applies that to Senator Gallagher’s case, in our submission, the requirements for renunciation under British law are not disputed.  Your Honours will see them if you take the court book and turn to tab 7, which is the agreed facts, and then the attachments to that document at page 186 of the book, you will see section 12 of the British Nationality Act 1981.  Section 12(1) provides that:

If any British citizen –

And that requirement is important, that the person be a British citizen, because that is the subject of some of the debate to which I will come later:

makes in the prescribed manner a declaration of renunciation of British citizenship, then, subject to subsections (3) and (4), the Secretary of State shall cause the declaration to be registered.

So there is a right to have British citizenship – to renounce British citizenship upon satisfaction of the preconditions, making the application in the prescribed manner:

the Secretary of State shall cause the declaration to be registered.

It is also crystal clear, in our submission, from subsection (2) when that renunciation is effective under foreign law.  It is effective on registration of the declaration, because it is only on registration that the person ceases to be a British citizen.  So, even if a person has taken all the steps that they need to take in order to satisfy subsection (1), as a matter of British law those steps do not affect the status under British law until the Secretary of State complies with the duty imposed under subsection (1) to actually register that declaration, which plainly in this case did not occur until 6 August, well after nomination and election.

As to the meaning of the prescribed manner referred to in subsection (1), if your Honours turn forward in the book to pages 203 and 204, or if your Honours want to see what you are looking at, on page 201 it is The British Nationality (General) Regulations 2003.  The relevant regulations are on page 203, regulation 8 provides that:

Any declaration of renunciation of British citizenship . . . shall—

(a)be made to the appropriate authority specified in regulation 9; and

(b)satisfy the requirements of Schedule 5.

Regulation 9 is just a little further down the page and the relevant provision is paragraph (e).  Where the declarant is not within any of the other paragraphs they make the declaration to the Secretary of State for the Home Office.

Schedule 5 then appears on page 204.  The requirements to make the application in the prescribed manner require the declaration to be made in writing.  It must:

state the name, address, date and place of birth of the declarant.

Then section 2 within Schedule 5:

A declaration shall contain information showing that the declarant—

(a)      is a British citizen –

and various other non‑onerous requirements.  Then over the page in paragraph 3:

A declaration shall contain a declaration that the particulars stated therein are true.

There is also a requirement that I do not need to dwell on but I will show it to your Honours.  It is on the bottom of page 211.  This is a requirement for the payment of a fee.  You get there via a path that, on page 208 of the Immigration and Nationality Fees Regulations, regulation 10 applies Schedule 8. 

If you then go to Schedule 8 on page 209 you will see, at item 2 on page 210, that tables 19 and 20 specify the amount of fees for various applications, processes and services relating to nationality, and then at the bottom of 211 you see at item 20.3.1 the prescribed fee for the declaration of renunciation is £272 under section 12 of the Act. 

In order to enliven a duty on the Secretary to register a renunciation you have to be a British citizen who makes an application on the prescribed form, essentially involving stating your name and address and providing information of the kind identified in Schedule 2, including that you are a British citizen and paying the fee of £272. 

In our submission those requirements are obviously not either impossible or unreasonably difficult to satisfy, and so much is illustrated by numerous cases that have come before this Court over the past six months of persons who have successfully renounced their citizenship.  Indeed, Senator Gallagher herself successfully renounced her citizenship within a very short time, providing the additional documentation that was requested from her by the Home Office.  The same was likewise true of Senators Roberts and Nash, Kakoschke‑Moore and Lambie, all of whom have renounced British citizenship.

In our submission it follows that British law does not irremediably prevent British citizens from renouncing their British citizenship.  Because British law does not have that operation, either in its terms or in its operation, British law does not create an irremediable impediment. 

The constitutional imperative that your Honours identified in Canavan is irrelevant, the limitation or exception is not engaged, and there is no basis to depart from the ordinary and natural meaning of the words of section 44(i) which lay at the heart of your Honours’ judgment in that case.

Senator Gallagher was a person who, at the time that she nominated and at the date of the election, held a status that carried with it reciprocal rights and obligations under foreign law, and that was a status that rendered her incapable of being chosen as a senator.  For that reason we submit that there is a vacancy in the Senate, and one does not need to go any further or to look at any of the other issues that are raised on repeated expert evidence or the taking of steps.  That, your Honours, is the Attorney’s primary submission, and that would be enough.

Can I turn to the second part of our submission which is to respond to particular points made by Senator Gallagher in her written submissions.  There are four particular points that I propose to answer and they are the four points that are identified in paragraphs 9 through to 12 of the oral outline of submissions, so I will not summarise them.

The first point, your Honours, is that in our respectful submission the senator’s case mistakes the exception for the rule in applying what your Honours said in Canavan.  If your Honours have the senator’s written submissions there, you will see at paragraph 21 at the bottom of page 5 a submission being made that the holding:

in Re Canavan that whether a person is disqualified by reasons of section 44(i) is to be determined with reference to a concept termed “the constitutional imperative”.

That is why, in our submission, there is no focus on the text of section 44(i) in their submissions because the text is replaced in the argument by this notion of a constitutional imperative which, for reasons I will develop, we submit is used in a way completely different from the way that your Honours used it in the judgment and that really infects the whole of the argument that follows.

It is based, as we understand it, on a virtually exclusive focus on what the Court said in the second sentence of paragraph [72], to the exclusion of everything else that led up to that point that I have already taken your Honours through.  If your Honours would go back to paragraph [72], I have already spent a little while on the first sentence.

The first sentence, completely consistently in our submission with what we have put to this point, focuses on the status of the foreign citizen under foreign law and identifies the limitation or qualification or exception by reference to the constitutional imperative that the citizen not be irremediably prevented by foreign law.  Obviously enough, the next sentence of the paragraph should not be read as contradicting the sentence that immediately precedes it.  So in our submission when the Court says in that next sentence:

Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizen and within his or her power, the constitutional imperative is engaged –

that sentence cannot be properly be read as if it were a line in a statute or a freestanding exception; it has to be read as a statement in a judgment elaborating or explaining the sentence that goes before.  In our submission, it can easily be read in that way when the words “the foreign law” in the third line of the second sentence – “Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law” – the foreign law to which your Honours are referring is the same foreign law that is mentioned in the previous sentence.

As long as the paragraph is read in that way, the two sentences are read together, where a foreign law irremediably prevents a citizen from participating in representative government then, provided that the person has taken all the steps reasonably required by the foreign law and within their power, the imperative is engaged and there is no tension between the sections.

If, on the other hand, as Senator Gallagher seeks to read it, it was read as an erection of a rule by the Court that as long as you have taken all of the steps reasonably required, then the imperative is engaged. That would, we submit, generate absurd results. In particular, if your Honours take the case of a person who chooses to take all of the steps reasonably required the day before the nomination period starts, such a person can reasonably expect – and, indeed, is obviously the case – that such a person is very likely still to have the status of being a foreign citizen once the period of choice with which section 44(i) is concerned has commenced, because the process is unlikely to play out the conclusion within a day. But in such a case, in our submission, the candidate plainly was not irremediably prevented from being chosen. All that they needed to do was to take the steps that were required by the foreign law a sufficient time in advance so that those steps could be completed before the person nominated.

And to read the second sentence of paragraph [72] as if it deems the imperative to be engaged in any case where the person has taken all the steps required by the foreign law is to read it as erecting an exception that simply does not engage with the constitutional imperative as described and explained in the various paragraphs of the judgment that I have already taken your Honours through.

GAGELER J:   Mr Solicitor, can we test this by asking how it would play out in the case of Mr Kardamitsis, which is discussed just a few paragraphs before?  He puts in his documents to the Greek Embassy in Australia and then he needs to obtain a favourable exercise of discretion from the Greek Minister.

MR DONAGHUE:   Yes.

GAGELER J:   Now, presumably you would say, “Well, if a reasonable time elapses and nothing is heard from the Greek Minister, he does not return phone calls, then the constitutional imperative will have been engaged by then”.

MR DONAGHUE:   At some point, yes, your Honour, because the terms “or operation of the foreign law” might engage the imperative.  And I will come to this shortly but, in our submission, the mere existence of the discretion is not objectionable in and of itself.  The fact that there is a discretion under foreign law does not create an irremediable impediment.  But at some point the operation of the foreign law, perhaps because of the discretion, is not exercised for an unreasonable period of time might be such that the person could properly make the case that at that point they have been irremediably prevented by the foreign law.

GAGELER J:   So you would say, I think, that it is not enough that he has put in all the paperwork that he needs to put in, the constitutional imperative does not operate until such time as the actual operation of the foreign law in the circumstances of his case becomes unreasonable?  Is that right?

MR DONAGHUE:   Yes, because until that point there is no irremediable prevention.  There might be, for example, a short wait.  The paperwork might all have been put in.  The Greek Minister might get to it in a week and, after a week, it has been registered and then it is effective under foreign law and the person has taken themselves outside of the terms.  They no longer have the rights or obligations of a foreign citizen.  There is no problem.  But there is a point, we accept, that there could become a problem, but you have to get to that point before the imperative is engaged.

KEANE J:   But you are talking about something objective in terms of the foreign law, its operation, even though that operation may require the exercise of governmental discretions?

MR DONAGHUE:   Yes.

KEANE J:   You are not talking about the timeframe, driven by or determined by the timing of the choice of an individual candidate to seek office?

MR DONAGHUE:   That is right, your Honour.  Exactly, and some of our friend’s submissions would suggest, for example, that because they say, well, the issues that arise at an election might not be clear, there might be a snap election, you might not be sure when these things are coming, therefore there is a constitutional imperative that one can free oneself immediately from the disqualification so as to enable the person to participate.  We submit that that is not right, that because the focus is on the terms and operation of the foreign law and if a candidate chooses to leave it too late or to leave it to very closely approximating the date, then they will suffer the consequences at that next election but they will not be irremediably prevented from participating because they should be able by the next election to have freed themselves of the impediment as long as the foreign law is not imposing unreasonable or impossible barriers to them, and if it is, then effect will not be given to the foreign law to that extent.

So, really for that reason ‑ and we submit, your Honours, that in circumstances where the judgment uses the concept of irremediable prevention or irremediable incapacity at least four times, that word obviously was not inadvertent, as we pointed out in our submission, it is a strong word.  It means, does not admit a remedy, incurable, irreferable.  So, it cannot just, in our submission, be the case that something that imposes a barrier that is able to be overcome is enough to engage the imperative.  One is looking for a much higher hurdle than that.  Even if it be the case that there is a prevention from participating in a particular election at some time, your Honours, at paragraph [54] of Canavan, describe section 44(i) as creating a:

constitutional guarantee of single‑minded loyalty –

which your Honours said:

should not be made to depend upon the diligence which a candidate brings to the observance of the provision.

A candidate ‑ as your Honours have emphasised, nomination for the Parliament is a serious matter.  It requires careful and serious attention by the part of the candidate.  If the candidate does not bring a degree of diligence sufficient to allow the process to be effective under foreign law, to renounce the status, then that candidate will possess a status subject to rights and obligations that cut across that single‑minded loyalty that your Honours identified in paragraph [54].

The other point that we make in this respect, your Honours, is that while it may well be ‑ well, it is the case that section 44 will impose a burden upon the capacity of some Australian citizens to participate, plainly enough the section imposed just such a burden on the various parliamentarians who were found to be disqualified by the Court in Canavan in circumstances where all of those parliamentarians were not aware on the evidence that they possessed the disqualifying status.

In our submission, it would be most anomalous if section 44 operated in a way that excused people who were aware of their foreign status, status as foreign citizens, but who failed to take the steps necessary to renounce that status, yet disqualified persons who were not aware of the status at all. That would be a strange operation for the section to have and it rather points against the case now being made for the senator. It is not, in our submission, disqualification per se that engages the constitutional imperative; it is irremediable disqualification that engages the imperative and in the circumstances of this case, there is nothing of that kind.

Your Honours will also notice – I think we have submitted in writing that if one looks at the other paragraphs of section 44 of the Constitution there are numerous paragraphs there that impose the disqualification of a kind that an Australian citizen will not be able to free themselves of immediately so as to entitle them to participate in any particular election. Take, for example, the obvious case of an Australian citizen who is subject to a term of imprisonment but also a citizen who is bankrupt, perhaps a citizen who has a pecuniary interest in an agreement that they are not able immediately to terminate.

In all of those circumstances, snap election or no, unpredicted issues or no, section 44 might operate in a particular context to prevent a qualified person from being able to seek election to the Parliament. The fact that it does those things is just reflective of effect being given to the policy imperatives that underlie the various paragraphs of section 44(i).

There is no contravention or contradiction of the constitutional imperative to say that at any given moment in time certain people, Australian citizens, will not be able to run for Parliament. There is no reason, in our submission, why section 44(i) is any different. As long as the status is reasonably able to be relinquished then the burden that it imposes is perfectly constitutionally acceptable.

Your Honours will have noticed in Senator Gallagher’s submissions that there is quite a significant focus on what she identifies as a right to nominate for election and to sit in the House and the burden that section 44(i) is said to impose upon that right.

In addition to the submissions I have already made in answering that point, we submit that it encounters the difficulty that your Honours identified in Re Day (No 2) (2017) 91 ALJR 518, particularly at paragraph [74] in the judgment of your Honour the Chief Justice and Justices Bell and Edelman where your Honours made the point that the legislative powers of the Parliament to prescribe qualifications which are the source of the right that Senator Gallagher asserts are themselves subject to section 44 of the Constitution, which also qualifies the power of the Parliament to otherwise provide for the purposes of sections 16 and 34.

That, we submit, illustrates the circularity of any attempt to maximise the exception or the limit on section 44(i) by reference to this right said to be derived from statutory provisions enacted under 16 and 34 because those statutory rights are necessarily subject to the very constitutional provision that they are trying to read down.

The rights focus in our friend’s submission is also, we submit, rather hard to square with the fact that all of these provisions, appearing as they do in Chapter 1 of the Constitution, are concerned with the systemic or structural features upon which representative and responsible democracy is grounded.

But, in the context of the similarly grounded implied freedom of political communication, your Honours have been careful repeatedly to emphasise that that limitation does not constitute an individual right, that it is instead a structural feature that creates a limitation on legislative power.  We submit that to try to convert laws enacted in reliance on sections 16 and 34 into an individual right encounters the same kind of difficulty.

Your Honours, the third point that Senator Gallagher makes which we seek to answer concerns the submissions that the senator makes about how the Court should deal with foreign laws that require action to be taken by foreign officials, and that includes discretionary decisions of the kind your Honour Justice Gageler asked me about, but the submission is wider. 

If your Honours could go back to the senator’s written submissions just so your Honours can see the target of the submissions I am about to make, if you turn to paragraph 29 under the heading “B.4 Scope and content: actions of foreign officials”, the submission is made that:

The constitutional imperative cannot be made to depend on the actions of foreign officials, particularly those –

So not limited to, but:

particularly those that rest on discretions, degrees of diligence or bureaucratic practices.

It is said that this is because:

the constitutional imperative cannot depend on the actions of foreign officials because the Constitution recognises that Australia is an independent and sovereign nation.

Then over the page about five lines down, just as exorbitant laws cannot be recognised, and we have no quarrel with that, but it is said or suggested that the same reasoning means that:

the constitutional imperative cannot recognise the actions, or indeed, inactions, of foreign officials.  To do so would impermissibly import foreign arbitrariness into . . . Australia’s system of government.

Then if your Honours go on to paragraph 37, it is said that:

This process of isolating the foreign law’s [requirements] does not treat as relevant the actions, or inactions, of foreign officials.  This is because it is the foreign law which is relevant and not the actions of the persons acting pursuant to the foreign law.  As outlined above, the constitutional imperative, on a proper understanding . . . must be divorced from the exercises of discretion, degrees of diligence or bureaucratic practices . . . As such, the process of isolating steps required by foreign law must necessarily disregard the operation of a discretion exercisable by a foreign official or foreign department.  If a foreign law requires the exercise of a discretion as a step to effect a renunciation, the Court must not recognise such a law, and therefore not isolate it as a step –

In other words, the proposition is that while status as a foreign citizen depends on foreign law, it depends on foreign law which is isolated or stripped back in such a way so that any act of a foreign official at all must be disregarded.  Now, it seems to us that there are numerous problems with that and there are a couple of possible readings of the submission, but can I give your Honours three examples that we submit illustrate the difficulties?

The first is section 12 of the British Nationality Act itself which, as your Honours have seen, provides that the Secretary of State must register the renunciation declaration and then provides in its terms in subsection (2) that the renunciation is not effective until registered, that is, until action is taken by the British official. 

If by this suggested process of isolating foreign law one has to strip out any action of the foreign official, then one ends up with a completely different law because the law in its terms identifies when it has effect in order to lose – when a person loses their status under foreign citizenship.  But if one has to disregard that act, then presumably the proposition is that once the declaration is submitted to the Secretary of State that is the only part of the foreign law to which effect can be given.

But when then is the renunciation to be effective?  Is it when it is put in the post?  Is it when it is received by the British Home Office?  If it is the latter, then the point at which renunciation is effective depends upon how long the post takes to get between Australia and a foreign country and all of that is to give effect to foreign law in a way that obviously differs from the way that foreign law would itself regard itself as acting, such that a person who is clearly still a British citizen according to British law would, on this hypothesis, cease to be a British citizen at some earlier point in time because the actions of a foreign official are being ignored.

EDELMAN J:   If your earlier submission about partial recognition is correct, does that not have the same vice?

MR DONAGHUE:   Your Honour, it has the vice that effect will not be given to the foreign law but the reason for that is because as a matter of Australian law there is a hard limit at which the foreign law would be cutting across what the Court has identified since Sykes as an important value.  So I accept that it does have the vice of producing uncertainty in the sense that the person will still be able to be a foreign citizen under the law of a foreign country while sitting in the Parliament, but that is part of the reason why the exception needs to be confined as narrowly as possible in order to be ‑ ‑ ‑

GORDON J:   I thought in answer to Justice Keane’s question you gave two answers which were, one, it was an objective requirement which is contrary to the way in which this argument is put by Senator Gallagher, as I understand it, that is it is in effect a subjective act taken by the person rather than rather than an objective requirement, and then the second answer you gave was that the timeframe was determined by the foreign law and not by the individual.  So in a sense the recognition had limits on it but they were limits which were very confined.

MR DONAGHUE:   I certainly do submit that, your Honour.  The timeframe might ultimately be determined, as I think I said in answer to Justice Gageler, by Australian law in the sense that the foreign law might create a timeframe of a kind that imposes an unreasonable impediment such that it might not be acknowledged, but otherwise yes, your Honour.

GAGELER J:   You would say it would have to be irremediable rather than just unreasonable, as I understand it?

MR DONAGHUE:   That is correct but “irremediable”, as used in Canavan, appears not to mean impossible.  That is the only sense in which I used “unreasonable”.

BELL J:   So the irremediable preclusion would not cut in even if the time taken by the foreign official to process an application were, on one view, unreasonable ‑ let us say three years – because it would be possible for that person to be nominated at a future election for the Australian Parliament.

MR DONAGHUE:   That, your Honour, is I think a hard case because it is probably on the borderline where the Court might say – one can imagine if the Court is looking at how long a period of disqualification might be permitted to be before it becomes irremediable that the Australian election cycle might be a constitutional footing at which one could ground the limit.

But we do say that that is the question that one would be asking at that point, and that in practical terms it may well be that when this arises it does not arise in a total vacuum because if, for example, an application has been made and it has gone into a black hole where there is no communications back from the foreign official, that might be one situation, but if there have been toing‑and‑froing requiring further documents and seeking further requests where the delay is inexplicable by reason of matters that do not go to show that the foreign law is operating in a way in practice that creates irremediable prevention then one might get a different answer.

The second example we wanted to give that shows, illustrates or brings out the problem with this isolating or stripping back of foreign law is the case where a law requires, as in the Canavan example at [69], requires active renunciation within the territory of the foreign state but that that requirement is subject to a discretion in a foreign official to waive the requirement in identified circumstances.

In that situation it seems to us, with respect, a little unclear how Senator Gallagher’s submissions would deal with the situation.  On one view, which is the view that your Honours see, particularly in the last sentence of paragraph 37, it is said that where a:

foreign law requires the exercise of a discretion as a step to effect a renunciation, the Court must not recognise such a law -

So the whole law that confers the discretion might be ignored.  Now, on that approach, that would produce a radically different and harsher law because instead of having a law that says you have to be present in the territory unless you show good reason that that imposes an unreasonable impediment, you would ignore the ameliorating provision of the foreign law and then the result would be, one assumes, that the Australian candidate would actually have to go to the foreign state, notwithstanding the exercise of discretion in their favour because it is said one has to ignore the discretionary decisions of foreign officials.

That particular analysis also is very hard to square with Mr Kardamitsis’ situation that Justice Gageler put to me, because one would think on that view Mr Kardamitsis did not even need to apply for the exercise of the discretion by the Greek official because we ignore laws that propose discretions in foreign officials.  So that is problematic.

But in other parts of the case it seems that perhaps what is being suggested is not that you totally ignore the foreign law but that you ignore the action of the foreign official under the foreign law so that the Australian candidate has to seek to engage with the law, for example, by applying for the exercise of discretion but that the analysis stops at that point so that we do not look to see what the foreign official has or has not done. 

The difficulty with that of course is that it might be, for example, that the foreign citizen would say well, you do not have to do the active renunciation in the foreign state, but I want you to travel to the embassy in Canberra to swear the oath before the ambassador, so one requirement is substituted for another.

On our friend’s case you ignore the acts of the foreign officials, so there would be no basis to substitute in that ameliorating or alternative requirement and presumably it would be enough on that case that the person had submitted the application and 44(i) would not be engaged, even though they had not engaged in the perfectly reasonable requirement to go to Canberra and take the oath before the ambassador so as to make that renunciation effective under foreign law.

A further example arises in the case of multistep renunciation processes.  Say, for example, one needs to submit a document then the foreign officials look at the documents and require you to attend for an interview.  It is not at all clear how, once one strips out the actions of foreign officials, an example of that kind could give any meaningful effect to the foreign law.

All of that, your Honours, is really by way of saying that on this approach that is urged upon your Honours, disregarding the acts of foreign officials, it amounts to saying that a person’s status is not to be determined under foreign law because it is not realistic to strip out the actions and decisions of foreign officials from the requirements of the law.  It is just a false dichotomy.

Your Honours have held repeatedly in Sykes, in Sue v Hill and in Canavan, in terms that do not suggest any stripping back of the foreign law, that the operation of 44(i) turns principally upon that status which will often in its terms depend, as it does in this case, on an action being taken by a foreign official.  Your Honours cannot, in our submission, embrace this kind of analysis without opening up the correctness of all those decisions.  In addition to that objection, in our submission, the reasons that it is suggested that your Honours should take this approach of ignoring the actions of foreign officials are unpersuasive. 

In essence, as your Honours have already seen in paragraph [29], the proposition basically appears to be that if you give effect to the actions of foreign officials then that will result in importing into Australian law arbitrary and discriminatory outcomes.  That is in terms in paragraph [29].  It is said, we cannot give effect to decisions of that kind because Australia is an independent and sovereign nation.

Obviously, your Honours, Australia is an independent and sovereign nation, but that is not a reason why one cannot give effect to any decisions made by foreign officials.  In fact, we give effect to such decisions all the time.  Every time an Australian law recognises a foreign marriage, or effect is given to a foreign judgment, that recognition is afforded in Australia to qualifications conferred by overseas authorities, we give effect to decisions that have been made by foreign officials.

There is, in our submission, no proper basis at all to proceed from the mere existence of a decision‑making function or a requirement for administrative action under a foreign law to jump to the conclusion that the constitutional imperative be engaged.  It might be.  If the decision is made in the way that Justice Gageler put to me earlier, it might be.  But one has to wait until there is an irremediable impediment rather than to ignore any foreign law under which, in an extreme or unlikely scenario, such an impediment might arise.

Finally, your Honours, in terms of our responsive submissions, there is the question of certainty of outcome.  Your Honours will recall in paragraph [48] of Canavan ‑ picking up some earlier remarks of your Honour Justice Nettle in Culleton and your Honour Justice Gageler in Day ‑ that the Court emphasised that it was important to construe section 44(i) in a way that was consistent with the requirements of stability and certainty in the operation of responsible government, in particular in the operation of Commonwealth elections. That was part of the reason why the Court accepted at [54] that the operation of 44(i) should not depend on the diligence of foreign candidates in observing those requirements.

Much of the submissions made this afternoon by our friends focused on what was said to be the constitutional imperative to keep decisions that might prevent Australian citizens from running for Parliament out of the hands of a foreign power.  I have largely said what I seek to say about that, but our submission is that this Court has long accepted – in Sykes, in Sue v Hill and in Canavan – that when 44(i) talks about someone being a citizen of a foreign power it is referring to a person who has a particular status under foreign law. 

The approach that has been urged upon the Court by Senator Gallagher cuts free from the content of foreign law that status because it strips out elements of foreign law that might obviously be determinative of the status as a matter of foreign law, and it is not at all plain what it replaces it with.  One has a concept of being a subject of a foreign power, which cannot be answered by reference to the foreign law but cannot readily be answered by any other identifiable criteria.

It does have, amongst many of the objections, the consequence that your Honour Justice Keane raised with our friend:  that in the Kardamitsis example from Sykes v Cleary, that even if the Greek Minister had exercised the discretion to refuse with a reasonable time and on reasonable grounds that decision would have been ignored, on our friend’s argument.

So that if, for example, the Greek Minister had said, “You have outstanding fines due to the government of Greece and once those fines are paid we will grant your renunciation application” there would not have been an irremediable obstacle.  Under the Greek law you just have to pay the outstanding fines in order to achieve the outcome.  But our friends say no, disregard the fact that you still have the status under foreign law because all discretionary decision‑making should be equated with potentially arbitrary or discriminatory decision‑making.

Insofar as our friends sought to rely upon the passage in Sykes v Cleary at 107 about a person being involuntarily holding or retaining foreign citizenship, your Honours will not be blind to the irony of that – that that passage was a passage that formed a significant part of the argument of a number of parties in Canavan and involuntariness of foreign citizenship was decisively rejected by the Court as relevant to the operation of section 44(i). It can be no more relevant in the context in which it is deployed by our friends than it was held to be relevant in Canavan itself.

Finally, your Honours, in concluding can I go back to paragraph [72].  Our friends said that our submission should be understood as taking what was said in the second sentence of paragraph [72] and then superadding an element and what we were said to superadd was the need for irremediable prevention.  In our submission, that really completely reverses

the natural reading of that paragraph.  The first part of the paragraph talks about the decisiveness of status of a subject or citizen and says that that disqualifies except where it:

is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented –

So there is no superaddition of any requirement, in our submission.  When one then comes to the next sentence, you will see that it twice uses the definite article:

Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law –

Now, if one asks who is the person and what is the law, the only reasonably available way to read that, in our submission, is referring back to the person and the law that are described in the sentence immediately preceding it.  When the sentences are read in that way, it is plain that it is impossible to treat the second paragraph as a – sorry, the second sentence as a deeming requirement such as one is automatically to be taken to be irremediably prevented by any circumstances where a person has taken all the steps in his or her power.

What it boils down to is that our friends say irremediable prevention means prevention by anything that is not within the person’s own power.  Once it is outside their power to overcome the obstacle, then they are irremediably prevented.  That, to use your Honour Justice Bell’s words, denudes the concept of content. 

Ultimately, your Honours, the operation of the section for which we contend is clear and, your Honours, unless you form a view that British law in its terms or operations poses an irremediable obstacle to renunciation and, as your Honour Justice Keane pointed out, the last sentence of paragraph [69] rather suggests it does not, but so too do an obvious reading of the terms, one has no reason to do otherwise than to say, given that Senator Gallagher had the status of a foreign citizen when she nominated, on the plain and ordinary meaning of section 44(i), she was incapable of being chosen.

If your Honours form that view, then the answer to the questions is that there is a vacancy in the Senate for the place for which the senator was returned.  That vacancy should be filled by a special count.  They are the answer to the two operative questions.  If the Court pleases.

KIEFEL CJ:   Yes, thank you.  The Court reserves its decision in this matter and adjourns to 10.15 am tomorrow.

At 3.41 PM THE MATTER WAS ADJOURNED