Re Gallagher

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.