Between: SYKES
And: CLEARY

Judges: MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J

GAUDRON JMcHUGH J

Subject References:
Parliamentary Elections (Cth)

Judgment date: 25 November 1992

CANBERRA

Judgment by:
GAUDRON J

I agree with Mason CJ, Toohey and McHugh JJ., for the reasons that their Honours give, that the first respondent was incapable of being chosen as a member of the House of Representatives in the 1992 Wills by-election and that that by-election should be declared absolutely void. Accordingly, I would answer the questions reserved in the case stated in the manner proposed by their Honours.

It is appropriate that I state my views as to the Constitution in its application to the second and third respondents. That subsection prevents the election to either House of the Parliament of "(a)ny person who ... (i)s 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". It is said that the second and third respondents are, respectively, citizens of Switzerland and of Greece or entitled to the rights and privileges of citizens of those countries because their laws recognize them as their citizens.

The facts concerning the second and third respondents are set out in the joint judgment of Mason CJ, Toohey and McHugh JJ. It is necessary only to observe that they are Australian citizens, each having been naturalized after migrating from the country of his birth: the second respondent, Mr Delacretaz, was naturalized on 20 April 1960 pursuant to the Nationality and Citizenship Act 1948 (Cth) ("the 1948 Act") as it then stood; Mr Kardamitsis, the third respondent, was naturalized on 12 March 1975 pursuant to the Australian Citizenship Act 1948 (Cth) ("the Citizenship Act") as the 1948 Act had then become.

It is convenient to turn first to the position of Mr Kardamitsis. In 1975, when he was naturalized, the Citizenship Act provided for the acquisition of Australian citizenship by naturalization, taking effect, in the case of those who were required to take an oath or make an affirmation of allegiance, from the taking of that oath or the making of that affirmation and, in other cases, from the date on which the Minister granted a certificate of Australian citizenship. ^[F96] Mr Kardamitsis fell into the first category and he swore or affirmed his allegiance - it is not clear which - as then required by the Citizenship Act.

When Mr Kardamitsis was naturalized, the oath of allegiance was to be sworn or the affirmation made "in the manner provided ... and in accordance with the form contained in Schedule 2". ^[F97] Nothing presently turns on the requirements as to the manner of taking the oath or making the affirmation. The oath and affirmation set out in Sched.2, ^[F98] commenced with these words:

"I, A.B., renouncing all other allegiance, swear/solemnly and sincerely promise and declare ...".

The form of oath and affirmation required by the Citizenship Act, as it stood in 1975, was introduced in 1966 when s 11 of the Nationality and Citizenship Act 1966 (Cth) ("the 1966 Act") amended the Second Schedule to the 1948 Act "by inserting after the letters 'A.B.' ... the words 'renouncing all other allegiance'". At the same time, s 12 of the 1966 Act introduced the Third Schedule containing the form of oath and affirmation required in the case of women wishing to be registered as British subjects without citizenship. ^[F99] That also involved the renunciation of all other allegiance. The Second and Third Schedules which were then enacted were substantially re-enacted as Sched.2 and Sched.3 in 1973 when extensive amendments resulted in the transformation of the 1948 Act into the Citizenship Act. Schedule 3 was repealed in 1984. ^[F100] The renunciation of all other allegiance remained part of the oath and affirmation required for naturalization until 1986. ^[F101]

As at 1975 - indeed, from the enactment of the 1948 Act - the Citizenship Act made provision for the renunciation of Australian citizenship; ^[F102] where the person became an Australian citizen by reason of the inclusion of his or her name in the certificate of Australian citizenship of his or her parents or guardian (s 18(2)); where a woman acquired the foreign nationality of her husband after he had ceased to be an Australian citizen (s 18(3)); where a person was born or ordinarily resident in a foreign country and was not entitled under the law of that country to its citizenship by reason of his or her Australian citizenship (s 18(3A)). Subject to exceptions during wartime and to prevent statelessness (s 18(5), (6)), the Minister had to register a declaration and thereupon the person making it ceased to be an Australian citizen (s 18(4)). Section 18 of the 1948 Act was to similar effect. Section 18 of the Citizenship Act as it currently stands provides for a declaration of renunciation of citizenship where an Australian citizen over the age of 18 is also a foreign national or was born or is ordinarily resident in a foreign country and is not entitled under the law of that country to acquire its citizenship by reason of his or her Australian citizenship (s 18(1)). The Minister must, subject to subsections (5), (5A) and (6), register the declaration (s 18(4)). Subsection 5A provides that the Minister shall not register the declaration if she or he considers that it would not be in the best interests of Australia to do so.). However, apart from the forms of oath and affirmation introduced in 1966 and substantially re-enacted in 1973, it was silent, as it had been since 1948, with respect to the renunciation by an Australian citizen of his or her allegiance to a foreign country.

One other feature should be observed with respect to the Citizenship Act as it stood in 1975. It provided, in s 17, that:

"An Australian citizen of full age and of full capacity, who, whilst outside Australia and New Guinea, by some voluntary and formal act, other than marriage, acquires the nationality or citizenship of a country other than Australia, shall thereupon cease to be an Australian citizen."

The current position is much as it was in 1975, although it is not restricted to acts done outside Australia. ^[F103] And there has been provision to the same general effect at least since 1920 when the Nationality Act 1920 (Cth) provided, in s 21, that:

"A British subject who, when in any foreign state and not under disability, by obtaining a certificate of naturalization or by any other voluntary and formal act, becomes naturalized therein, shall thenceforth be deemed to have ceased to be a British subject."

It is generally accepted that, at common law, a person could have dual citizenship or allegiance. ^[F104] Of course, the common law has been modified to the extent that statute law now provides and, at least since 1920, has provided for the loss of Australian citizenship (in which I include the status of British subject which we had prior to citizenship) by the acquisition of foreign citizenship.

It is also generally accepted that, at common law, the question whether, for the purposes of municipal law, a person is a citizen or subject of a foreign country (more precisely, whether he or she is to be treated as such) is, as a general rule, to be answered by reference to the law of the country concerned. ^[F105] That approach is understandable if foreign citizenship has no consequences for citizenship of the country whose courts are considering the matter or for the rights ordinarily attaching to citizenship of that country. But our legal system is not of that kind. As has been seen, it has been the case, at least since 1920, that Australian citizenship can be lost by the acquisition of foreign citizenship. And as appears from this case, it has been the position since 1901 that an Australian citizen (including a British subject as we used to be) has been incapable of being chosen or of sitting as a member of either House of the Parliament if he or she is a citizen of a foreign country or otherwise comes within s 44(i) of the Constitution.

There is nothing novel in the proposition that a municipal court may, on grounds of public policy, refuse to apply the law of another country, even in cases where, according to the municipal law, the matter in issue is governed by the law of that other country. ^[F106] Thus, it has been said, for example, that a court will not apply a foreign citizenship law which does not conform with established international norms ^[F107] or which involves gross violation of human rights. ^[F108] And if the question be whether Australian citizenship has been lost or the rights ordinarily attaching to Australian citizenship have been excluded, every consideration of public policy and commonsense tells against the automatic recognition and application of foreign law as the sole determinant of that matter. However, that need not be considered in the case of Mr Kardamitsis. His position, in my view, is governed by the Citizenship Act, as it stood in 1975.

It cannot be supposed that, in enacting the form of oath and affirmation introduced in 1966 and in substantially re-enacting it in 1973, the Parliament intended that the formal renunciation of all other allegiance, notwithstanding that it was solemnly sworn or affirmed, should be entirely devoid of legal effect. Particularly is that so in a statutory context in which real limits were imposed on dual citizenship and a right to renounce Australian citizenship - albeit one that was circumscribed ^[F109] - was expressly recognized.

Of course, an Australian naturalization law providing for the renunciation of foreign citizenship could not, of itself, affect the position of a naturalized Australian under the law of the country whose citizenship he or she renounced. And the Constitution may impose limits on the power to legislate with respect to foreign citizenship. But putting the constitutional question aside for the moment, the Parliament could enact a law to the effect that foreign law should not be decisive of the question whether, for the purposes of Australian law, a naturalized Australian should be treated as a citizen of another country.

In a context in which the Citizenship Act, as it stood in 1975, made provision for the automatic loss of Australian citizenship on the acquisition of foreign citizenship in the circumstances set out in s 17 and for the effective renunciation of Australian citizenship, the requirement that an oath be sworn or an affirmation made renouncing all other allegiance necessarily carried, in my view, the implication that foreign law was not to be decisive of the question whether a naturalized Australian who had renounced foreign citizenship was to be treated as a citizen or as entitled to the rights and privileges of a citizen of the country then renounced. And, in my view, that same context disclosed, also as a matter of necessary implication, the extent to which regard was to be had to the law of that country if that question should arise.

Section 17 of the Citizenship Act, as it stood in 1975, placed real limits on, but by no means constituted a complete bar to, dual citizenship. It did not, for example, operate by reference to citizenship acquired by birth. There was, thus, nothing to preclude Mr Kardamitsis from being a Greek citizen by birth and an Australian citizen by naturalization. In that context and on the basis that the renunciation of his allegiance to Greece was intended to have some legal effect, the effect of the Citizenship Act, as it then stood, could only have been that the question of his Greek citizenship or his entitlement to the rights and privileges of a Greek citizen, if it arose under Australian law, was to be determined by reference to Greek law if, after renouncing that allegiance, he, in some way, reasserted citizenship of Greece, but otherwise was to be answered on the basis that it had been effectively renounced. Unless approached in that way, the oath and affirmation required by the Citizenship Act in 1975 (indeed, from 1966 to 1986) and which operated to confer Australian citizenship, was, to the extent that it involved renunciation of all other allegiance, but an empty gesture.

It is necessary to deal with two matters to which some reference has already been made. The first is the question whether, in the light of s 44(i) of the Constitution, Parliament may validly legislate to the effect that I have said is necessarily to be implied from the terms of the Citizenship Act, as it stood in 1975. It cannot be the case that, for the purpose of s 44(i), the question of foreign citizenship or entitlement to the rights and privileges of foreign citizenship is one that is invariably to be answered by the application of foreign law for, as Deane J. points out, in that event a foreign power could disable the Parliament by conferring citizenship on all its members. But, in my view, the solution is not to be found in reading down s 44(i): rather, it lies in examination of the circumstances in which foreign law should be applied to determine questions arising under the subsection. And, on the same basis, the question of legislative power is one which requires identification of the circumstances in which foreign law may be disregarded. Whatever limits on legislative power are imported by s 44(i), it does not, in my view, limit the power of Parliament to provide to the effect that, if prior foreign citizenship has been renounced in compliance with Australian law, the law of the country concerned should not be applied for any purpose connected with Australian law, including the determination of any question arising under s 44(i) itself, unless that prior citizenship has been reasserted.

The second matter concerns the amendment of Sched.2 in 1986, ^[F110] removing the renunciation of other allegiance from the oath and affirmation of allegiance required for naturalization. Once it is accepted that the Citizenship Act, as it stood in 1975, involved a directive to the effect already indicated, it follows that, for all purposes of Australian law, Mr Kardamitsis had a right to have any question of his Greek citizenship or his entitlement to the rights and privileges of a Greek citizen determined on the basis that that citizenship was effectively renounced and that, only if he reasserted it in some way, would the question be answered by reference to Greek law. By virtue of s 8(c) ^[F111] of the Acts Interpretation Act 1901 (Cth) that right was not affected by the amendment of Sched.2 in 1986.

The material does not reveal anything which suggests that Mr Kardamitsis has, in any way, reasserted citizenship of Greece. Given that what is at stake is the right to participate in the democratic process as a member of Parliament - a right ordinarily attaching to citizenship - the onus of establishing that he did anything of that kind must lie on the party asserting it. ^[F112] That being so, for the purposes of the Constitution, Mr Kardamitsis is neither a Greek citizen nor a person entitled to the rights and privileges of a Greek citizen.

The provisions of the 1948 Act under which Mr Delacretaz was naturalized were different in a number of respects from those in the Citizenship Act, as it stood in 1975. Importantly, and as already indicated, the oath or affirmation of allegiance required by the 1948 Act, as it stood in 1960, did not involve the renunciation of prior allegiance. Despite this, Mr Delacretaz, in fact, formally renounced all other allegiance as a preliminary to taking the oath which resulted in his naturalization. ^[F113]

It appears from the second reading speech for the Nationality and Citizenship Act 1966 (Cth) (which introduced the form of oath and affirmation involving renunciation of all other allegiance) that, for some time past, there had been a "practice of requiring applicants ... to renounce allegiance to their former countries" in "a prominent and separate part of the naturalisation ceremony". ^[F114] It is clear from Mr Delacretaz' naturalization certificate that that is what happened in his case.

As already indicated, the issue that arises with respect to s 44(i) is, in my view, whether and to what extent foreign law should determine its effect in any particular situation. Given its terms and purpose, regard must, I think, be had to foreign law in any case where nothing has been done to renounce foreign citizenship or, if renounced, it has, in some way, been reasserted. But, again because of its terms and purpose, regard should not be had to foreign law if reasonable steps have been taken to renounce other allegiance, save, of course, where reasserted. Leaving reassertion aside, where reasonable steps have been taken to renounce foreign allegiance, questions arising under s 44(i) should, in my view, be answered on the basis that those steps achieved their purpose. That approach involves no reading down of s 44(i), although it may have the same result: rather, it is to spell out the process involved in determining its effect in a particular case.

Whether s 44(i) be read down or whether it be approached in the way that I favour, the question whether reasonable steps have been taken is a question for Australian law. It may involve some consideration of the content of the law of the country whose citizenship is in question, but the main consideration must be the circumstances of the person concerned.

As has already been mentioned, Mr Delacretaz formally renounced all other allegiance, having been required to do so as a condition of naturalization. Whether that condition was authorized by the 1948 Act, as it stood in 1960, need not be considered; it must be presumed that, in complying with that condition, Mr Delacretaz thought he was engaging in a meaningful act in the sense that, at least for the purposes of Australian law, that act would achieve its object. What he might have thought with respect to his position under Swiss law is not material, for this case is concerned only with his position under Australian law.

The material reveals that, under Swiss law, Mr Delacretaz will be released from Swiss citizenship if he so demands and if, as is the case, he has no residence in Switzerland and has acquired another nationality. The materials do not disclose whether that has always been the position. Nor do they reveal what, if anything, Mr Delacretaz knew or believed the position to be. But, even assuming that he could at any stage obtain an automatic release from his Swiss citizenship and that he knew that to be the case, it does not seem to me to be reasonable to expect him to seek release when it necessarily involves acknowledgment of citizenship that has already been formally renounced. That being so, Mr Delacretaz, by formally renouncing all other allegiance as a preliminary to naturalization and as part of the naturalization ceremony, must be held to have taken reasonable steps to renounce his Swiss citizenship.

There is nothing to suggest that Mr Delacretaz has done anything to reassert Swiss citizenship. That being so and having regard to what was said in relation to Mr Kardamatsis with respect to the onus of proof, Mr Delacretaz is neither a Swiss citizen nor entitled to the rights and privileges of a Swiss citizen for the purposes of the Constitution.