Re Nash; Re Xenophon

The High Court of Australia considered an application for special leave to appeal in *Re Nash; Re Xenophon*. The applicants, Mr. Nash and Senator Xenophon, sought to challenge decisions of the Full Federal Court of Australia which had found them ineligible to be elected as members of the Parliament of South Australia and the Parliament of Australia, respectively. The core of the dispute concerned the interpretation and application of section 44(i) of the *Constitution*, which disqualifies a person from being a senator or member of the House of Representatives if they are under any disqualification by the Parliament of the United Kingdom or by the law of any part of the Queen's dominions.

The primary legal issue before the High Court was whether the applicants were disqualified from sitting in Parliament by reason of their holding dual citizenship, specifically Australian and United Kingdom citizenship. This required the Court to determine whether the *British Nationality Act 1948* (UK) had the effect of making the applicants "British subjects" in a manner that constituted a disqualification under section 44(i) of the *Constitution*, notwithstanding their Australian citizenship. The Court also considered whether the concept of "foreign allegiance" was relevant to the disqualification.

In its reasoning, the High Court affirmed the principles established in *Sykes v. Federal Commissioner of Taxation* and *Re Canavan*, holding that the *British Nationality Act 1948* did not confer a status of "British subject" that would render an Australian citizen disqualified under section 44(i) of the *Constitution*. Chief Justice Kiefel emphasised that the disqualification under section 44(i) is directed at a person's allegiance to a foreign power, not merely their status as a subject of the Crown. The Court found that the applicants, as Australian citizens, owed allegiance to Australia and that their status as British subjects under the 1948 Act did not amount to an allegiance to a foreign power in the constitutional sense relevant to section 44(i).

Special leave to appeal was granted in *Re Nash* and refused in *Re Xenophon*.