SYKES v CLEARY

176 CLR 77
109 ALR 577

(Judgment by: BRENNAN J)

Between: SYKES
And: CLEARY

Court:
High Court of Australia

Judges: MASON CJ

BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J

Subject References:
Parliamentary Elections (Cth)

Judgment date: 25 November 1992

CANBERRA


Judgment by:
BRENNAN J

For the reasons stated by Mason CJ, Toohey and McHugh JJ., I agree that the Constitution rendered the first respondent incapable of being chosen as a member of the House of Representatives. Accordingly, I agree that he was not duly elected. I agree also with their Honours' reasons for concluding that the election was void and that a special count should not be orderedz.

There remains the challenge based on the Constitution to the respective capacities of the second and the third respondents to be chosen as a member of the House of Representatives. Section 44(i) reads as follows:


"Any person who -

(i)
Is 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 ...


...

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives."

The purpose of this sub-section is to ensure that no candidate, senator or member of the House of Representatives owes allegiance or obedience to a foreign power or adheres to a foreign power. Putting acknowledgment of adherence to a foreign power to one side, the sub-section contains three categories of disqualification, each of them being descriptive of a source of a duty of allegiance or obedience to a foreign power. The first category covers the case where such a duty arises from an acknowledgement of the duty by the candidate, senator or member. The second category covers the case where the duty is reciprocal to the status conferred by the law of a foreign power. The third category covers the case where the duty is reciprocal to the rights or privileges conferred by the law of a foreign power.

The second category refers to subjects or citizens of a foreign power - subject being a term appropriate when the foreign power is a monarch of feudal origin; citizen when the foreign power is a republic. [F39] In the United Kingdom, by the common law, allegiance is owed to the Sovereign "by ... natural born subjects (and) by those who, being aliens, become ... subjects by denization or naturalization", as Lord Jowitt LC. said in Joyce v. Director of Public Prosecutions. [F40] At common law, the status of a subject was coincident with the owing of allegiance. [F41] A similar rule is adopted by other legal systems with respect to their nationals. In the Nottebohm Case, [F42] the judgment of the International Court of Justice noted that:


"Nationality serves above all to determine that the person upon whom it is conferred enjoys the rights and is bound by the obligations which the law of the State in question grants to or imposes on its nationals." (Emphasis added.)

Nationality has sometimes been regarded as an international law attribute of subjects or citizens [F43] but, for the purposes of construing s 44(i), it is not necessary to draw any distinction between a person who is a national of a foreign power and a person who is a subject or citizen of a foreign power. [F44] The second category covers persons who, by reason of their status as subjects or citizens (or nationals) of a foreign power, owe a duty of allegiance or obedience to the foreign power according to the law of the foreign power.

The third category mentioned in s 44(i) covers those who, though not foreign nationals, are under the protection of a foreign power as though they were subjects or citizens of the foreign power. Where non-nationals are under the protection of a foreign power, they may owe a duty of allegiance or obedience to the foreign power by the law of that power. Thus, in Joyce v. Director of Public Prosecutions, it was held that a non-subject owed allegiance to the Sovereign by reason of the protection afforded him by the issue of a British passport.

The first category applies when, as a matter of fact, the person has acknowledged allegiance, obedience or adherence to a foreign power. The second and the third categories apply when, under the law of a foreign power, the person owes allegiance or obedience to the foreign power by reason of his or her status, rights or privileges. Although s 44(i) is part of the municipal law of Australia, the status, rights or privileges mentioned in the second and third categories are generally ascertained by reference to the municipal law of the foreign power. Lord Cross of Chelsea in Oppenheimer v. Cattermole [F45] stated the law in these terms:


"Our law is, of course, familiar with the concept of dual nationality ... and the English law which is to be applied in deciding whether or not Mr. Oppenheimer was a German national at the relevant time is not simply our municipal law but includes the rule which refers the question whether a man is a German national to the municipal law of Germany."

Our law runs parallel with the law of England in this respect. [F46] Nottebohm's Case, though it was invoked to avoid this conclusion, in truth confirms it. The International Court of Justice had to determine whether Guatemala was obliged by international law to recognize that Liechtenstein had conferred nationality on Nottebohm so as to entitle Liechtenstein to assert the right of diplomatic protection of Nottebohm by taking international judicial proceedings against Guatemala. [F47] The Court acknowledged that nationality is to be settled for the purposes of each State by its own municipal law. [F48] However, the Court was not determining an issue under municipal law. Liechtenstein's entitlement to exercise protection had to be determined by international law. In that context, the Court observed that international tribunals, when confronted with competing claims made under the respective municipal laws of two States -


"have given their preference to the real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person concerned and one of the States whose nationality is involved. Different factors are taken into consideration, and their importance will vary from one case to the next: the habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc." [F49]

The doctrine of "real and effective nationality" is a doctrine of international law, not municipal law, though it may be imported into municipal law when an issue in the municipal courts makes it necessary to choose between the competing claims of two other States asserting the nationality of an individual. [F50] The opinion of the International Court in Nottebohm's Case accords with the provisions of the Convention on Certain Questions Relating to the Conflict of Nationality Laws, [F51] which read relevantly as follows:


"Article 1.

It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.

Article 2.

Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State.

Article 3.

Subject to the provisions of the present Convention, a person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses."

When the issue in an Australian court is simply whether an individual is a national of a foreign power, that issue is ordinarily determined by reference to the municipal law of the foreign power. [F52] The general rule, however, is subject to qualifications, one of which is stated by Lord Cross in Oppenheimer v. Cattermole: [F53]


"If a foreign country purported to confer the benefit of its protection on and to exact a duty of allegiance from persons who had no connection or only a very slender connection with it our courts would be entitled to pay no regard to such legislation on the ground that the country in question was acting beyond the bounds of any jurisdiction in matters of nationality which international law would recognise. In this respect I think that our law is the same as that of the United States as stated by the Circuit Court of Appeals, Second Circuit, in United States ex rel. Schwarzkopf v. Uhl." [F54]

That qualification has no application either to the second or to the third respondent. Each was born and grew up as a citizen of a foreign power before coming to live in Australia. Each, by the respective laws of those foreign powers, remains a citizen of that power. Each, by those respective laws, owes allegiance to a foreign power. True it is that each purported to renounce his citizenship of, and allegiance to, his native country when he became an Australian citizen but that renunciation was ineffective to alter his status and obligations under the law of his native country. There is no reason to hold that the application of the laws of the second and third respondents' respective native countries exceeds the jurisdiction in matters of nationality which international law would recognize.

However, recognition by our municipal law of the effect of foreign law on status and allegiance is subject to a further qualification. In times of war, common law courts have refused to recognize changes in the status either of British subjects [F55] or of enemy aliens [F56] under the law of the foreign hostile power. In these cases, non-recognition has been justified on the ground of public policy. [F57] But there is no reason why the doctrine of public policy should be confined to that situation. If recognition of status, rights or privileges under foreign law would extend the operation of the Constitution to cases which it was not intended to cover, that section should be construed as requiring recognition of foreign law only in those situations where recognition fulfils the purpose of s 44(1). To take an extreme example, if a foreign power were mischievously to confer its nationality on members of the Parliament so as to disqualify them all, it would be absurd to recognize the foreign law conferring foreign nationality. Section 44(i) is concerned to ensure that foreign powers command no allegiance from or obedience by candidates, senators and members of the House of Representatives; it is not concerned with the operation of foreign law that is incapable in fact of creating any sense of duty, or of enforcing any duty, of allegiance or obedience to a foreign power. It accords both with public policy and with the proper construction of s 44(i) to deny recognition to foreign law in these situations. If foreign law were recognized in these situations, some Australian citizens would be needlessly deprived of the capacity to seek election to the Parliament and other Australians would be needlessly deprived of the right to choose the disqualified citizens to represent them. However, there are few situations in which a foreign law, conferring foreign nationality or the rights and privileges of a foreign national, is incapable in fact of creating a sense of duty, or is incapable of enforcing a duty, of allegiance or obedience to a foreign power. One such situation does occur when the foreign law, purporting to affect nationality of persons who have had no connection or only a very slender connection with the foreign power, exceeds the jurisdiction recognized by international law. That is the situation described by Lord Cross [F58] in which international law does not recognize the jurisdiction of the foreign power. A second situation occurs when an Australian citizen has done all that lies reasonably within his or her power (i) to renounce the status or the rights or privileges conferred by the foreign law carrying a reciprocal duty of allegiance or obedience to the foreign power and (ii) to obtain a release from any such duty. It is not sufficient, in the second situation, for a person holding dual citizenship to make a unilateral declaration renouncing foreign citizenship when some further step can reasonably be taken which will be effective under the relevant foreign law to release that person from the duty of allegiance or obedience. 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. It is only after all reasonable steps have been taken under the relevant foreign law to renounce the status, rights and privileges carrying the duty of allegiance or obedience and to obtain a release from that duty that it is possible to say that the purpose of s 44(i) would not be fulfilled by recognition of the foreign law.

The second and third respondents each failed to take steps reasonably open under the relevant laws of his native country - Switzerland in one case, Greece in the other - to renounce his status as a citizen of that country and to obtain his release from the duties of allegiance and obedience imposed on citizens by the laws of that country. Accordingly, neither the second nor the third respondent was capable of being chosen as a member of the House of Representatives.

I agree with the answers proposed by Mason CJ, Toohey and McHugh JJ. to the questions in the stated case.