SYKES v CLEARY
176 CLR 77109 ALR 577
(Judgment by: DAWSON J)
Between: SYKES
And: CLEARY
Judges:
MASON CJ
BRENNAN J
DEANE J
DAWSON JTOOHEY J
GAUDRON J
McHUGH J
Subject References:
Parliamentary Elections (Cth)
Judgment date: 25 November 1992
CANBERRA
Judgment by:
DAWSON J
I agree with Mason, CJ, Toohey and McHugh JJ., for the reasons which they give, that the first respondent was, until he resigned his position as a teacher in the Victorian teaching service, the holder of an office of profit under the Crown within the meaning of the Constitution and that he was, therefore, incapable of being chosen as a member of the House of Representatives in the by-election for the Electoral Division of Wills. I also agree with Mason CJ, Toohey and McHugh JJ., for the reasons which they give, that, as a result, the by-election should be declared absolutely void under Commonwealth Electoral Act 1918 (Cth).
I desire only to add some comments on the position of the second and third respondents.
At common law, whether or not a person is a subject or citizen of a foreign State is a question that is generally to be determined by reference to the municipal law of that foreign State. [F93] The International Court of Justice held in the Nottebohm Case [F94] that where there are competing claims made under different municipal laws, the nationality to be attributed to a person as a matter of international law is his "real and effective nationality", this being determined by the "stronger factual ties between the person concerned and one of the States whose nationality is involved". [F95] The test under international law does not, however, assist in the present case which involves the proper construction of the Constitution. I agree with Mason CJ, Toohey and McHugh JJ., and with Brennan J., that s 44(i) should not be given a construction that would unreasonably result in some Australian citizens being irremediably incapable of being elected to either House of the Commonwealth Parliament.
Putting to one side extreme examples of foreign nationality or citizenship being foisted upon persons against their will, a person who is a subject or citizen of a foreign State by virtue of the municipal law of that State will not be incapable of being chosen or of sitting as a senator or a member of the House of Representatives if he has taken all steps that could reasonably be taken to renounce that foreign nationality or citizenship. What is reasonable will depend upon the circumstances of the case. It will depend upon such matters as the requirements of the foreign law for the renunciation of the foreign nationality, the person's knowledge of his foreign nationality and the circumstances in which the foreign nationality was accorded to that person. Thus the refusal of a foreign authority to exercise a discretion to allow a person to relinquish his foreign nationality need not necessarily preclude the person from being capable of being chosen or of sitting as a senator or a member of the House of Representatives. Further, if the foreign law does not permit a person to relinquish his foreign nationality then there are obviously no steps, save for unilateral renunciation, which that person can reasonably take to do so and, therefore, that person will not be precluded by reason only of that foreign nationality from being capable of being chosen or of sitting as a member of either House of the Commonwealth Parliament.
There is no dispute that, under Swiss law, the second respondent was at all relevant times a citizen of Switzerland or that, under Greek law, the third respondent was at all relevant times a Greek national. When the second and third respondents became Australian citizens they renounced their allegiance to their former countries but this did not result in their foreign nationality being relinquished under the law of those countries. There were steps which both the second and third respondents could reasonably have taken under the laws of those countries in order to relinquish their foreign nationality in accordance with those laws. I agree, therefore, that the second and third respondents were incapable of being chosen as members of the House of Representatives in the Wills by-election.
For these reasons I would answer the questions reserved in the manner proposed by Mason CJ, Toohey and McHugh JJ.