The latest from the High Court: February 2018

CONSTITUTIONAL LAW

Section 44(i) – Parliamentary elections – qualification to be elected

In Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 (27 October 2017) the High Court considered the proper interpretation of s 44(i) of the Constitution and whether persons referred to the Court were incapable of being chosen or sitting as a Senator or Member of Parliament. The ultimate question was whether any of the referred persons were ‘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 a foreign power’ as at the time of their nomination to the Parliament.

Four different constructions of s 44(i) were argued. Three of those impliedly included a mental element informing the acquisition or maintenance of foreign citizenship, but varied with respect to the degree of knowledge required and whether a voluntary act of acquiring or retaining foreign citizenship was necessary. The Court rejected those approaches, holding that knowledge of foreign citizenship was not required for a person to come within s 44(i).

The Court also held that the reasonableness of steps taken by candidates to inquire as to whether their personal circumstances gave rise to disqualification under s 44(i) was immaterial to the operation of s 44(i). The only question was whether a person had the status of foreign subject or citizen, as determined by the law of the foreign power in question. If a person had that status when they nominated, they would be disqualified unless the foreign law in question is contrary to the ‘constitutional imperative’ that an Australian citizen not be irremediably prevented from participation in representative government.