SYKES v CLEARY

176 CLR 77
109 ALR 577

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(Judgment by: DEANE J)

Between: SYKES
And: CLEARY

Court:

Judges: MASON CJ
BRENNAN J

DEANE JDAWSON J
TOOHEY J
GAUDRON J
McHUGH J

Subject References:
Parliamentary Elections (Cth)

Judgment date: 25 November 1992

CANBERRA

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Judgment by:
DEANE J

This is a case stated in proceedings instituted in the Court as the Court of Disputed Returns under the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act"). The petitioner, Mr Sykes, challenges the validity of the declaration on 23 April 1992 of the poll for a by-election held to elect the member of the Commonwealth House of Representatives for the Electoral Division of Wills in the State of Victoria ("the by-election"). The first respondent, Mr Cleary, is the person who was declared to be the successful candidate in that by-election. There were twenty-one unsuccessful candidates. They included the petitioner, the second respondent (Mr Delacretaz), the third respondent (Mr Kardamitsis) and the fourth respondent (Ms Rawson). The fifth respondent, the Australian Electoral Commission, was given leave to appear and is deemed to be a respondent under s 359 of the Electoral Act.

In the petition, the petitioner challenged the validity of the declaration of the poll on the ground that he and the first four respondents had each been "incapable of being chosen" as a member of the House of Representatives. The substantive questions raised for the opinion of the Full Court are:

"(a)

Was the First Respondent duly elected at the (by-election)?

(b)

If no to (a), was the (by-election) absolutely void?

(c)

If no to (b), was any and which candidate duly elected who was not returned as elected?" The argument of those questions has been confined to the status of Mr Cleary, Mr Delacretaz and Mr Kardamitsis. It has been argued, on behalf of the petitioner, that those three candidates had each been disqualified from being chosen as a member of the House of Representatives by the provisions of s 44 of the Constitution and that, since they were the three candidates who had obtained the highest number of first preference votes (more than ninety per cent between them), the appropriate order to be made is that the by-election was absolutely void.

The Constitution

Section 44 of the Constitution provides:

"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: or

(ii)

Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer or

(iii)

Is an undischarged bankrupt or insolvent: or

(iv)

Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or

(v)

Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:

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

But sub-section iv. does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth."

Section 44 should be read in the context of s 46 which provides:

"Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction"

That constitutional provision, which has now been effectively replaced by a similar but less harsh statutory provision, ^[F59] added penal consequences to disregard of s 44's declaration that a person is "incapable of ... sitting". In In re Webster, ^[F60] Barwick CJ, speaking of par.(v) of s 44, said that the effect of those penal consequences was that "the paragraph should receive a strict construction". I respectfully agree with that comment. It is true that those penal consequences only attach if the person concerned purports to sit as a member of the Parliament. As the present case demonstrates, however, the question whether the person is "incapable of ... sitting" will commonly depend upon whether he or she was "incapable of being chosen" by reason of the provisions of s 44.

THE STATUS OF MR CLEARY

The basis of the argument that Mr Cleary was disqualified is the fact that, up until 16 April 1992, he held a permanent appointment as a teacher with the Education Department of Victoria. The petitioner contends that, by reason of that appointment, Mr Cleary was, at relevant times, the holder of an "office of profit under the Crown" for the purposes of s 44(iv) and was accordingly "incapable of being chosen" as a member of the House of Representatives. Counsel for Mr Cleary sought to meet that argument at three distinct levels. First, it was submitted that, in all the circumstances of the case, Mr Cleary had not held an office of profit under the Crown at any relevant time. Next, it was submitted that, even if Mr Cleary had held an office of profit under the Crown, the Constitution should be construed as referring only to an office of profit held under the Crown in right of the Commonwealth whereas any office of profit held by Mr Cleary had been under the Crown in right of the State of Victoria. Finally, it was submitted that any office of profit under the Crown held by Mr Cleary had been relinquished by the time that he was, for the purposes of s. 44(iv "chosen ... as ... a member of the House of Representatives". It is convenient to consider those submissions in the order in which I have mentioned them. Was Mr Cleary's appointment as a teacher an office of profit under the Crown? 5. It is not disputed that Mr Cleary held a permanent appointment as a teacher with the Education Department of Victoria for a number of years prior to his resignation with effect from 16 April 1992. He had, however, been "on leave without pay" from 30 January 1992, which was before the issue of the writ for the by-election. During that period of leave without pay, Mr Cleary received no salary or allowances and, while formally allocated to Hoppers Crossing Secondary College, did not hold any particular or designated position in the Department. Nor was that period of leave without pay counted as service for the purposes of calculating long service leave, sick leave or recreation leave. During it, neither Mr Cleary nor the Department made any contributions to the relevant superannuation fund for his benefit.

Mr Cleary's permanent appointment as a teacher existed under the provisions of the Teaching Service Act 1981 (Vict.) ("the 1981 Act"). An examination of those provisions makes clear that the appointment continued while Mr Cleary was on leave without pay and that it was and remained, for so long as it subsisted, an office of profit under the Crown. Section 2 defines "(t)eachers" as "permanent officers employed in the teaching service for teaching in State schools". ^[F62] Section 3 provides that "there shall be employed by Her Majesty in the teaching service teachers and principals and such other persons as are necessary for the purposes of this Act" ^[F60] . The 1981 Act refers, on a number of occasions, ^[F63] to persons in the position of Mr Cleary (i.e. without any particular or designated position) as "unattached officer(s)". ^[F64] It also expressly refers to "(f)orfeiture of office in certain cases" none of which was applicable to him. ^[F65] Clearly, the permanent appointment as a teacher under the 1981 Act which Mr Cleary continued to hold while on leave without pay was "an office ... under the Crown". Equally clearly, in a context where the conditions applying generally to the office of teacher included entitlement to remuneration, ^[F66] the fact that the holder of such an office is temporarily on leave without pay or other emoluments does not deprive the office itself of its character as an office of profit. ^[F67]

It follows that the submission that Mr Cleary did not, while he was on leave without pay, hold an office of profit under the Crown must be rejected.

Does the Constitution refer only to an office of profit under the Crown in right of the Commonwealth?

At the time of the adoption of the Constitution, the British Crown was generally perceived to be one and indivisible. ^[F68] This perception was reflected in s 2 of the Commonwealth of Australia Constitution Act 1900 (Imp.) which expressly provided that the "provisions of this Act" - which included a section ^[F69] setting out the Constitution - "shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom". In the context of that perception of the unity and indivisibility of the British Crown, the phrase "office of profit under the Crown" in the Constitution would have been understood, at the time of the establishment of the Commonwealth, as referring to any office of profit under the British Crown regardless of geographical location or distinctions between different governments within the then British Empire.

The words of par.(iv) of s 44 and of the final qualifying paragraph of the section (which relates to par.44(iv)) confirm that the reference to "the Crown" was intended to be understood in that broad general sense. If, for example, the reference to "the Crown" in s 44(iv) was intended to be read as a reference to the Crown in right of the Commonwealth only, the words "out of any of the revenues of the Commonwealth" in the sub-section would be surplusage. More important, the express provision in the final paragraph that par.(iv) "does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of any of the Queen's Ministers for a State" makes plain that the relevant words of par.(iv) were intended to be construed as prima facie applicable to an office of profit under the Crown regardless of whether the office in question related to the government of the Commonwealth or to the government of a State.

The development of the full independence and sovereignty of nations such as Australia, Canada and New Zealand which maintained their allegiance to the personal embodiment of the Crown of the United Kingdom made it inevitable that the common law recognize that the British Crown has a "distinct and independent" capacity in each of its relationships with the different polities which make up the Commonwealth. ^[F70] That development also compels the adjustment of the content or operation of some of the provisions of the Constitution so that they accord with the realities of contemporary national sovereignty and international relationships. ^[F71] It is, however, unnecessary to pursue that subject for the purposes of the present case since it is apparent that no such adjustment could legitimately transform s 44(iv) from a provision which was clearly intended to encompass the holding of an office of profit under the Crown in right of either the Commonwealth or a State into one which applied only to the holding of an office of profit under the Crown in right of the Commonwealth.

Accordingly, the second submission advanced on behalf of Mr Cleary fails.

Did Mr Cleary hold an office of profit at the relevant time?

The writ for the by-election was issued by the Speaker of the House of Representatives ^[F72] on 9 March 1992. Its command was addressed to Brian Field Cox, the Electoral Commissioner, ^[F73] and specified the following dates:

For the CLOSE OF THE ROLLS: 16 March 1992

For NOMINATION: 20 March 1992

For TAKING THE POLL: 11 April 1992

For the RETURN OF THE WRIT: on or before 17 June 1992

In the event, those dates were all observed. The scrutiny and counting of votes commenced after the close of the poll on 11 April 1992. The counting of votes was completed on 22 April 1992 with the distribution of preferences to the stage where all candidates other than Mr Cleary and Mr Kardamitsis had been excluded. ^[F74] At that stage, Mr Cleary had a total of 41,708 votes which represented 65.7% of the total number of unrejected or valid ballot-papers. On 23 April 1992, the Acting Divisional Returning Officer declared Mr Cleary to be elected as the member of the House of Representatives for the Division of Wills. ^[F75] On the same day, the Acting Electoral Commissioner certified in writing on the writ the name of Mr Cleary as the elected candidate and returned the writ to the Speaker. ^[F76]

As has been mentioned, Mr Cleary resigned from the Victorian Education Department effective as from 16 April 1992. That means that he held an office of profit under the Crown at the time the writ for the by-election issued, at the time he was nominated as a candidate and at the times when voting in the by-election took place, when the poll closed and when the scrutiny and counting of votes commenced. On the other hand, he had relinquished any office of profit under the Crown a week before counting was completed by the distribution of preferences. The question arises whether, in those circumstances, s 44(iv)'s provision that a person who holds an office of profit under the Crown "shall be incapable of being chosen" as a member of the House of Representatives precluded Mr Cleary from being validly declared to be elected as such a member.

It is argued on behalf of the petitioner that the process of "being chosen" to which s 44(iv) refers is an ongoing one which commences with the nomination of candidates and finishes either when all votes have been cast on the day the poll is held or when the result of an election is declared and the writ is returned. Disqualification is incurred, so the argument proceeds, if a person holds an office of profit under the Crown at any time during the course of that process. In contrast, it is argued on behalf of Mr Cleary that the words "being chosen" are, in their context in s 44, synonymous with "being elected" and that, for the purposes of the section, a person is chosen or elected as a member of the House of Representatives only when counting is completed, the poll declared and the writ returned. Obviously, there is considerable force in each of those contending arguments. Ultimately, I have come to the conclusion that the words "incapable of being chosen" in s 44 should be construed as meaning not capable of becoming the chosen member by being declared elected at the termination of the election process. I turn to explain my reasons for that conclusion.

As a matter of mere language, the words "being chosen" are clearly capable of referring to the whole process of election commencing with nomination and finishing with either the declaration of the poll or the return of the writ ("the wide construction"). They are, however, also capable of being construed as referring to the declaration of the poll which represents the final step in the procedure for choosing the particular member of the Parliament ("the narrow construction"). Until that stage is reached and that final step is taken, events can intervene which preclude the candidate who will, when counting is completed and preferences are (to the extent necessary) distributed, have an absolute majority of votes from ever being actually elected as a member of the House of Representatives. Most obviously, he or she can die. Alternatively, if a disqualifying event under s 44 of the Constitution intervenes, the disqualified person cannot be validly declared duly elected at a time when he or she is disqualified. ^[F77]

Considerations of content and of context seem to me to favour the narrow construction. The provisions of s 44 do not represent a code determining which citizens are and which citizens are not qualified to be elected to the Parliament. Legislative power to determine the qualifications of members of the Parliament is conferred upon the Parliament itself by virtue of the combined operation of s 44 does is to impose an overriding disqualification of any person who comes within its terms regardless of whether the Parliament thinks (or seeks to enact), in the context of contemporary circumstances and standards, that that disqualification is unjustified. Such an overriding disqualification provision should, in my view, be construed as depriving a citizen of the democratic right to seek to participate directly in the deliberations and decisions of the national Parliament only to the extent that its words clearly and unambiguously require.

Moreover, in the construction of a constitutional provision such as s 44, "the purpose it seeks to attain must always be kept in mind". ^[F78] That purpose is essentially to ensure that the composition of the Parliament is appropriate for the discharge in the national interest of its functions as the legislature of a free and independent nation under a Constitution which adopts the Cabinet or Westminster system of parliamentary democracy but is otherwise structured upon the doctrine of a separation of legislative, executive and judicial powers. As one would expect in the Constitution of a country whose population consisted (by 1900) largely of immigrants or the descendants of immigrants, the disqualification provisions of s 44 look solely to present allegiance, status and interests. Subject to one exception, the verbs of the section are all in the present tense: "is", "holds", "has", "does not". The exception is the critical verbal phrase which is in the future tense: "shall be incapable". Clearly, the section is directed to the imposition of minimum requirements which, regardless of the views of the Parliament, a citizen must satisfy during the period in which he or she is actually a senator or a member of the House of Representatives.

The rationale of the disqualification of a person from membership of the Commonwealth Parliament by reason of the holding of an office of profit under the Crown itself supports the narrow construction of the relevant words of s 44(iv). That rationale is that, subject to the important qualifications flowing from the adoption of the Cabinet system of government, ^[F79] it is undesirable that a person be subjected to the possibly conflicting responsibilities and loyalties and the potential for abuse of power or opportunity which may be involved in, or flow from, concurrent membership of the national Parliament and the holding of an office of profit under the Crown. Implicit in it is a perception of the need to preserve the freedom and independence of the Parliament and to limit the control or influence of the executive government. ^[F80] None of those potential disadvantages or dangers arises until a person actually holds both positions, that is to say, until after he or she is declared elected as a member of the Parliament.

There are, of course, practical considerations which favour the preclusion of a person who is disqualified from becoming, or sitting as, a member of the Parliament from nominating as a candidate or having his or her name included on the ballot paper. It is however, arguable in relation to some of the disqualifying provisions of s 44, that the preferable approach would be to permit nomination or even participation in the poll at least in circumstances where it is plain, or where it lies within the competence of the particular person to ensure, that a candidate will not be disqualified from being chosen as a member of the Parliament at the time when he or she will, if successful on the poll, be declared to be elected. Thus, as regards disqualification under s 44 by reason of the holding of an office of profit under the Crown, it has long been recognized that it would be against the national interest and unfair, if the comparatively large percentage of the total employed population employed in the Commonwealth or State Public Services ^[F81] were able to stand as candidates for election to the national Parliament only if they completely forfeit the security and seniority of their respective appointments. Accordingly, one finds provision in both Commonwealth and State legislation aimed at enabling a public servant to resign his or her office to stand for Parliament while being assured that, in the event of not being elected, he or she will be entitled to, ^[F82] or entitled to seek, ^[F83] full reinstatement. There is surely much to be said for the view that a procedure such as the taking of leave without pay or other emoluments followed by resignation when it is apparent that the person concerned will ultimately be elected is a preferable one to the rather devious procedure of an ostensible termination of appointment in the context of a persisting relationship and entitlement to resume the appointment if unsuccessful at the poll. ^[F84] Certainly, it appears to me that, within the context of s 44's disqualification of a person actually becoming, or sitting as, a member of the Parliament while holding an office of profit under the Crown, it should be competent for the Parliament to determine whether, and if so on what terms, a person holding such an office should be allowed to participate at all as a candidate in the electoral process. In that regard, it is relevant to note that the first Parliament of the Commonwealth considered it to be its function to address and determine the question whether a candidate should, at the time of nomination, be qualified under the Constitution to be actually elected as a member of the Parliament. Sections 94 and Commonwealth Electoral Act of 1902 provided:

"94.

No person shall be capable of being elected as a Senator or a Member of the House of Representatives unless duly nominated.

95.

To entitle a person to be nominated as a Senator or a Member of the House of Representatives he must be qualified under the Constitution to be elected as a Senator or a Member of the House of Representatives."

Section 162 of the current Electoral Act reproduces the old s 94. The old s 95 is not reproduced in the current legislation.

It should be mentioned that counsel for the petitioner placed considerable reliance upon the decision of the Queen's Bench Division (Wright and Bruce JJ.) in Harford v. Linskey. ^[F85] That case concerned a local election under the Municipal Corporations Act 1882 (UK) which provided in s 12 that a person interested in a contract with the corporation of the borough "shall be disqualified for being elected and for being a councillor". After the candidates had been nominated, and before the polling day, an objection was lodged to the petitioner's nomination on the grounds that he was interested in such a contract. Notwithstanding the fact that the petitioner could have assigned his interest in the contract to a third party before polling day, the court upheld the objection and subsequent disqualification, declaring that it was "safest to hold" that "a person, who at the time of nomination is disqualified for election ... is disqualified also for nomination". ^[F86]

The decision in Harford v. Linskey seems to me, however, to be remote from, and quite unpersuasive in relation to, the question of the proper construction of Australian Constitution. For one thing, the relevant words of s 44(iv) differ from those which were in issue in the English case. For another, the wording of s 44 was settled by the framers of the Constitution before the decision of the English Divisional Court and was adopted by the people of five of the six Australian Colonies before any report of that decision would have been available in this country. More important, "no real analogy" ^[F87] can be drawn between the purpose and intended operation of a provision such as Australian Constitution and a statutory provision, such as that involved in Harford v. Linskey, intended to regulate the conduct of a local government election. As Sedgwick pointed out in his classic text on constitutional construction: ^[F88]

"Another consideration will impress itself still more forcibly on the minds of those who are called to consider questions connected with the interpretation of constitutional law. Statutes can and do enter into the details of our daily transactions; they can and do prescribe minute directions for the control of those affected by them. Constitutions, on the other hand, from the nature and necessity of the case, in many instances go little beyond the mere enunciation of general principles; and it is impossible, and would lead to endless absurdity, to endeavour to apply to a declaration of principles the same rules of construction that are proper in regard to an enactment of details. In regard to a statute, the general duty of the judge is that of a subordinate power, to ascertain and to obey the will of a superior; in regard to a Constitution, his functions are those of a co-ordinate authority, to ascertain the spirit of the fundamental law, and so to carry it out as to avoid a sacrifice of those interests which it is designed to protect."

A local government provision such as that involved in Harford v. Linskey performs the function of prescribing the detailed procedures to be followed in respect of the local elections to which it applies. In contrast, s 44 is, as has been mentioned, an overriding disqualification provision in a national Constitution which envisages and empowers the future enactment by the Parliament of legislation settling such detailed procedures. ^[F89] The considerations of practical convenience and of what is "safest" which influenced the English Divisional Court in Harford v. Linskey are appropriate to be taken into account by the Parliament in enacting, and by the courts in construing, such legislation. They do not, however, provide any basis whatever for an expansive construction of an overriding constitutional provision whose operation is effectively to confine the democratic rights of many citizens and to restrict the legislative powers of the Parliament.

It follows from what has been said above that s 44(iv)'s provision that a person who holds an office of profit under the Crown shall be incapable of being chosen as a member of the House of Representatives should be construed as applicable only to the case where a person holds such an office at the time when he or she becomes elected by the declaration of the poll. Otherwise, the extent, if at all, to which the holding of an office of profit under the Crown should preclude a citizen from being nominated or participating as a candidate in the electoral process is a matter for the Parliament. That being so, Mr Cleary was not disqualified by the operation of the Constitution.

The Electoral Act, ss 162 and 170(1)

No direct reference was made in the argument of the present case to the provisions of either ss 162 or 170(1) of the Electoral Act. It appears to me, however, that the question whether Mr Cleary was "duly elected" cannot be answered without reference to them. Relevantly, they provide:

"162.

No person shall be capable of being elected as a Senator or a Member of the House of Representatives unless duly nominated.

...

170.(1)

A nomination is not valid unless, in the nomination paper, the person nominated:

...

(b)

declares that:

(i)

the person is qualified under the Constitution ... to be elected as ... a member of the House of Representatives". (emphasis added)

The case stated does not set out the details of what appeared in Mr Cleary's nomination paper. Presumably, at the time of nomination, he believed that he was qualified under the Constitution to be elected as a member of the House of Representatives and declared to that effect in the nomination paper. The effect of what has been written above, however, is that he was not so qualified until he resigned his permanent appointment with the Education Department. In these circumstances, a question obviously arises whether he was "duly nominated" for the purposes of s 162. The answer to that question would seem to depend upon whether the provisions of s 170(1) are formal only, in the sense that their requirements will be satisfied and a person will be "duly nominated" for the purposes of s 162 if the nomination papers contain the necessary declaration notwithstanding that, by reason of innocent mistake, the declaration is erroneous.

If the outcome of the case depended upon my conclusion about whether Mr Cleary's election was invalidated by the combined operation of ss 162 and 170(1) of the Electoral Act, I should have thought it necessary to extend to the parties the opportunity of making submissions about the effect of those provisions in the circumstances of this case. A majority of the Court is, however, of the view that Mr Cleary was disqualified by the direct operation of the Constitution in any event. In these circumstances, it would obviously be a waste of time and money to invite such submissions. It would, however, be inappropriate for me to express a conclusion about the effect of 170(1) in circumstances where that particular question was not addressed in the argument of the case.

THE STATUS OF MR DELACRETAZ AND MR KARDAMITSIS

The question whether Mr Delacretaz and Mr Kardamitsis were disqualified by the Constitution only arises if the question whether Mr Cleary was disqualified is answered in the affirmative. If Mr Cleary was not disqualified, the fact that either or both of Mr Delacretaz and Mr Kardamitsis were would not have the effect that Mr Cleary's election was invalidated. However, in a context where my conclusion that Mr Cleary was not disqualified is subject to the possible effect of ss 162 and 170(1) of the Electoral Act and is, in any event, a dissenting one, it is appropriate that I indicate my views in relation to the status of Mr Delacretaz and Mr Kardamitsis.

The petitioner contends that Mr Delacretaz and Mr Kardamitsis each came, at relevant times, within s 44(i)'s disqualification of any person who "is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power". Obviously, and this was not disputed, those words must be read down to some extent. Otherwise, to take an extreme hypothetical example, it would lie within the power of a foreign nation to disqualify the whole of the Australian Parliament by unilaterally conferring upon all of its members the rights and privileges of a citizen of that nation. The reason why that is so is that s 44(i) refers only to being "entitled" to the rights or privileges of a subject or a citizen of a foreign power and not to the assertion or acceptance of those rights. The real question on this aspect of the case is how the words of the sub-section should be read down to avoid such obviously objectionable and unintended consequences.

Section 44(i)'s whole purpose is to prevent persons with foreign loyalties or obligations from being members of the Australian Parliament. The first limb of the sub-section (i.e. "is under any acknowledgment of allegiance, obedience, or adherence to a foreign power") involves an element of acceptance or at least acquiescence on the part of the relevant person. ^[F90] In conformity with the purpose of the sub-section, the second limb (i.e. "is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power") should, in my view, be construed as impliedly containing a similar mental element with the result that it applies only to cases where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned. The effect of that construction of the sub-section is that an Australian-born citizen is not disqualified by reason of the second limb of s 44(i) unless he or she has established, asserted, accepted, or acquiesced in, the relevant relationship with the foreign power. The position is more difficult in a case such as the present where the relationship with the foreign power existed before the acquisition (or re-acquisition) of Australian citizenship. In such a case, what will be involved is not the acquisition or establishment, for the purposes of s 44, of the relevant relationship with the foreign power but the relinquishment or extinguishment of it. It does, however, seem to me that the purpose which s 44 seeks to attain and which "must always be kept in mind" ^[F91] would not have included the permanent exclusion from participation at the highest level in the political life of the nation of any Australian citizen whose origins lay in, or who has had some past association with, some foreign country which asserts an entitlement to refuse to allow or recognize his or her genuine and unconditional renunciation of past allegiance or citizenship. Accordingly, and notwithstanding that citizenship of a country is ordinarily a matter determined by the law of that country, ^[F92] the qualifying element which must be read into the second limb of s 44(i) extends not only to the acquisition of the disqualifying relationship by a person who is already an Australian citizen but also to the retention of that relationship by a person who has subsequently become an Australian citizen. A person who becomes an Australian citizen will not be within the second limb of s 44(i) if he or she has done all that can reasonably be expected of him or her to extinguish any former relationship with a foreign country to the extent that it involves the status, rights or privileges referred to in the sub-section

Mr Kardamitsis has been an Australian citizen since 12 March 1975 upon which day he surrendered his Greek passport to the Australian government and took an oath of allegiance that included the words "renouncing all other allegiance". Since then he has taken three further oaths of allegiance to this country, twice as a councillor and once as a Justice of the Peace. Nonetheless, he remains a Greek national under the law of Greece. Under that law, his Greek nationality will only be discharged if, in the words of the case stated, "he obtains the approval of the appropriate Greek Minister". The case has been argued on the basis that, apart from applying for that "approval", Mr Kardamitsis had, at relevant times, done all that he could do to relinquish and extinguish his Greek nationality and allegiance and the rights and privileges flowing from such nationality and allegiance.

The formal ceremony which culminated in the grant of Australian citizenship to Mr Kardamitsis included, as has been indicated, a public renunciation of allegiance to any country other than Australia and an oath of allegiance to the Sovereign of this country. Involved in it was a clear representation by the Australian Government and people that, provided it was made genuinely and without reservation, that public renunciation and oath of allegiance constituted, for the purposes of the Constitution and other laws of this country, the final severing of formal national ties and the compliance with whatever requirements were necessary to become a full and equal member of this nation. In the context of that clear representation and of Mr Kardamitsis' subsequent years of Australian citizenship, it would not be reasonable to expect him now to make an application to a Greek Minister for the exercise of what would appear to be a discretionary power to approve or disapprove the discharge of the Greek nationality which he had unreservedly renounced in the manner specified by this country at the time he became an Australian citizen. Implicit in such an application would be an assertion of the continued existence of that Greek nationality and, more importantly, an acknowledgment of, and submission to, the discretionary authority of the relevant Greek Minister to decide whether it should or should not be discharged. In my view, Mr Kardamitsis had, on the material before the Court, done all that he could reasonably be expected to do for the purposes of the Constitution and laws of this country to renounce and extinguish his Greek nationality and any rights or privileges flowing from it. Accordingly, on that material, he had, for the purposes of the Constitution, relinquished and extinguished his relationship with Greece to the extent that it would represent a cause of disqualification.

The status of Mr Delacretaz is more difficult. If the matter had been for me alone, I would have preferred to refrain from expressing a concluded view about it in circumstances where the material before the Court is somewhat sketchy and where Mr Delacretaz was not represented at the hearing. Since the other members of the Court have dealt with the question, however, it is desirable that I indicate that, in a context where the onus of establishing that an Australian citizen is disqualified by s 44(i) from full participation in the national government clearly rests on the person who asserts it, I do not think that the material before the Court is adequate to found a conclusion that Mr Delacretaz has not taken all reasonable steps to extinguish his Swiss citizenship and allegiance and to renounce any rights and privileges flowing from that citizenship.

Mr Delacretaz has now been an Australian citizen for more than thirty years. It is not suggested that, in all that time, he has done anything which constituted an assertion or acknowledgment of Swiss citizenship or allegiance or that he has been otherwise than completely and solely loyal to Australia. Nor, subject to the qualification mentioned below, is it suggested that he has not done all that he could reasonably be expected to do to extinguish Swiss citizenship and allegiance and to renounce any rights or privileges flowing therefrom. The qualification is that, under Swiss law, Mr Delacretaz remains a Swiss citizen. He must make a formal demand or request to the Swiss government before his citizenship will be released or terminated under that law. This he has failed to do.

The case of Mr Delacretaz differs from that of Mr Kardamitsis in that the material before the Court indicates that Mr Delacretaz is, under Swiss law, entitled to be released from Swiss citizenship if, as is the case, he has no residence in Switzerland and has acquired another nationality. There is no ministerial discretion involved. That material does not, however, disclose the precise procedure to be followed in making the relevant demand or request for extinguishment of Swiss citizenship or whether that demand or request involves, as one would expect it to, an at least implicit assertion or acknowledgment of the continued existence of the obligations of that citizenship. Such an assertion or acknowledgment would, in my view, be inconsistent with the public and unqualified renunciation of allegiance to any country other than Australia which Mr Delacretaz made as part of the formal ceremony pursuant to which he became an Australian citizen.

It must be stressed that the question whether Mr Delacretaz has taken all reasonable steps to terminate Swiss citizenship and allegiance is not being asked for the purposes of Swiss law. It is being asked for the purposes of the Australian Constitution. Nonetheless, if Mr Delacretaz had become an Australian citizen only yesterday, I would have been of the view that it was reasonable to expect that he take the formal steps necessary to terminate his Swiss citizenship under Swiss law. However, in a context where more than thirty years of Australian citizenship have followed a public renunciation of allegiance to any country other than Australia and the swearing of an unqualified oath of allegiance to the Sovereign of this country in full compliance with the procedures required by the Australian authorities, it appears to me that it would be quite wrong to conclude that, for the purposes of our law, Mr Delacretaz should now be expected to assert or acknowledge the existence of Swiss citizenship so that it can be terminated for the purposes of Swiss law. On the material before the Court, Mr Delacretaz had, by the time of the by-election, done all that could reasonably be expected of him, for the purposes of the law of this country, to terminate any ties with any country other than Australia. Accordingly, he was not disqualified by s 44(i) of the Constitution.

CONCLUSION

I would answer question (a) of the case stated as follows:

Subject to the possible effect of 170(1) of the Commonwealth Electoral Act 1918 (Cth), the first respondent was duly elected at the by-election. In view of the answer which I would give to question (a), it is inappropriate that I answer questions (b) and (c). The parties are agreed that question (d), which relates to costs, should not be answered.