SYKES v CLEARY

176 CLR 77
109 ALR 577

(Judgment by: MASON CJ, TOOHEY J, McHUGH 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:
MASON CJ

TOOHEY J

McHUGH J

This is a case stated by Dawson J. pursuant to Judiciary Act 1903 (Cth). The case arises out of a by-election for the Electoral Division of Wills in the House of Representatives, as a result of which the first respondent, Philip Ronald Cleary, was declared to be elected. The case was stated in proceedings commenced by petition by Ian Grant Sykes ("the petitioner") invoking the jurisdiction of this Court sitting as the Court of Disputed Returns under the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act"). The petitioner disputed the poll on the ground that the first respondent held an office of profit under the Crown by reason, inter alia, of his being an officer of the Education Department of Victoria ("the Education Department") and therefore was incapable of being elected under the Constitution. The petitioner also alleged that other candidates, the second, third and fourth respondents, were ineligible for election. The petitioner claimed that each of the second and third respondents, though a naturalized Australian citizen, was a subject or citizen or entitled to the rights or privileges of a subject or citizen of a foreign power and was therefore under acknowledgment of allegiance to a foreign power within the meaning of s 44(i) of the Constitution. It is not necessary to consider the eligibility of the fourth respondent as no argument in support of ineligibility was presented to the Court.

According to the facts recited in the case stated, a writ for the by-election was issued and the following dates were specified in it for the purposes of the election:

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

The first respondent lodged his nomination on 20 March 1992. It was accepted by the Acting Divisional Returning Officer for the Electoral Division of Wills on that day. The poll was held on 11 April 1992. The total number of first preference votes cast in favour of the candidates in the election was as follows:

SAVAGE, Katheryne Jeanette1 660
KARDAMITSIS, Bill (the third respondent) 18,784
KUHNE, Otto Ernst August 35
PHILLIPS, Richard Frank 136
KAPPHAN, Wilhelm 34
RAWSON, Geraldine Mae (the fourth respondent) 453
DELACRETAZ, John Charles (the second respondent) 17,582
POULOS, Patricia 61
DROULERS, Julien Paul 68
FRENCH, William Leonard 90
POTTER, Felicia Cecilia 30
MURRAY, John 54
VASSIS, Chrisostomos 43
CLEARY, Philip Ronald 21,391
FERRARO, Salvatore 221
GERMAINE, Stanley Arthur 280
WALKER, Angela Howard 577
MACKAY, David Ewan1 383
LEWIS, Robert John 216
SYKES, Ian Grant 364
KYROU, Kon 81
MURGATROYD, Cecil Godfrey 258
TOTAL 63,801

After the distribution of the preference votes of all of the candidates except those of the first and third respondents, the first respondent had an absolute majority of votes, having a total of 41,708 votes (65.7 per cent). The third respondent had a total of 21,772 votes (34.3 per cent). Without a special count, it is not known what number of second and subsequent preference votes were cast in favour of the other candidates by voters who cast their first preference vote in favour of the first or the third respondent. Further, without a special count, it is not known what number of subsequent preference votes were cast in favour of the other candidates by voters who cast their first preference vote in favour of any candidate other than the first or third respondent and their second preference vote in favour of the first or third respondent.

The questions reserved in the case stated are:

(a)
Was the first respondent duly elected at the election?
(b)
If no to (a), was the election absolutely void?
(c)
If no to (b), was any and which candidate duly elected who was not returned as elected?
(d)
Who should pay the costs of the petition?

Question (a): Was the first respondent duly elected at the election?

6. the Constitution relevantly provides:

"Any person who -
...

(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:

...
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".

Before considering the meaning of this section and its application to the first respondent, it is necessary to consider the history of his service with the Education Department.

The history of the first respondent's service with the Education Department

The first respondent was appointed to the teaching service as a teacher in the Education Department by the Teachers Tribunal pursuant to s 46 of the Teaching Service Act 1958 (Vict.) ("the 1958 Act") on 1 January 1975. He thereupon became entitled to a salary and conditions of work determined pursuant to that Act. The 1958 Act was replaced by the Education Service Act 1981 (Vict.) ("the 1981 Act") which in turn was amended and renamed the Teaching Service Act 1981 (Vict.) by the Teaching Service Act 1983 (Vict.) ("the 1983 Act"). At all times from his appointment on 1 January 1975 until his resignation was tendered and accepted as effective on 16 April 1992, the first respondent was an officer in the teaching service. That service was known as the education service during the currency of the 1981 Act before it was amended by the 1983 Act. His appointment was as a permanent teacher. He was not appointed for a specific term; nor was he appointed on probation. He served as a secondary teacher.

Persons employed in the teaching service pursuant to s 3 of the 1981 Act in the classification held by the first respondent are not attached or appointed to any particular position. They have no entitlement to remain in any particular position.

From 1 February 1990 to 27 January 1992 inclusive, the first respondent was granted leave without pay by the Director-General of Education [F1] pursuant to s 35 of the 1981 Act. On 28 and 29 January 1992, he performed the duties of a teacher in the teaching service at Hoppers Crossing Secondary College and was paid $290.17. On 30 January 1992, he commenced leave without pay for the remainder of the school year, that is, until 24 January 1993. This leave ceased on 16 April 1992 when his resignation became effective. At no time on or after 30 January 1992 was he attached to, nor did he have any entitlement to, any particular or designated position. During this time, he was described by the employer as an "unattached" but "allocated" officer.

Some time during April 1992 but prior to 11 April 1992, he applied for long service leave with full pay for the fourth term of the school year from 5 October 1992 to 18 December 1992 pursuant to s 37 of the 1981 Act. This application was cancelled when he resigned from the teaching service. The Ministry of Education subsequently forwarded to him payment in lieu of long service leave pursuant to s 38 of the 1981 Act. The Ministry of Education does not permit permanent teachers to take long service leave while on leave without pay. The leave without pay must first be terminated. Interpretation of s 44(iv)

The disqualification of a person who holds an office of profit under the Crown has its origins in the law which developed in England in relation to disqualification of the members of the House of Commons. Section 44(iv) is modelled on a provision of the Act of Settlement 1701, [F2] which was repealed [F3] and replaced by provisions of the Succession to the Crown Act 1707. [F4] It has been said that the English provisions give effect to three main considerations or policies. They are: [F5]

(1)
the incompatibility of certain non-ministerial offices under the Crown with membership in the House of Commons (here, membership must be taken to cover questions of a member's relations with, and duties to, his or her constituents);
(2)
the need to limit the control or influence of the executive government over the House by means of an undue proportion of office-holders being members of the House; and
(3)
the essential condition of a certain number of Ministers being members of the House for the purpose of ensuring control of the executive by Parliament.

The meaning of the expression "office of profit under the Crown" is obscure. Blackstone defined an "office" as "a right to exercise a public or private employment" and to take the "fees and emoluments thereunto belonging". [F6] Blackstone had in mind offices to which particular duties were attached and which entitled the holder to charge and retain fees for the performance of the services rendered by the office-holder.

It has been accepted in England that the disqualification of the holder of an "office of profit under the Crown" excludes permanent public servants, being officers of the departments of government, from membership of the House of Commons. [F7] Likewise, it has been accepted in Australia that a provision for disqualification expressed in the same terms excludes public servants, who are officers of the departments of government, from membership of the legislature. [F8] The exclusion of public servants from membership of the House contributes to their exclusion from active and public participation in party politics. [F9] In this way, the disqualification played an important part in the development of the old tradition of a politically neutral public service.

The exclusion of permanent officers of the executive government from the House was a recognition of the incompatibility of a person at the one time holding such an office and being a member of the House. There are three factors that give rise to that incompatibility. First, performance by a public servant of his or her public service duties would impair his or her capacity to attend to the duties of a member of the House. Secondly, there is a very considerable risk that a public servant would share the political opinions of the Minister of his or her department and would not bring to bear as a member of the House a free and independent judgment. [F10] Thirdly, membership of the House would detract from the performance of the relevant public service duty.

The first respondent contends that the objects sought to be achieved by the disqualification of the holder of an "office of profit under the Crown" would sufficiently be served by confining the category of office-holders disqualified to that consisting of those who hold important or senior positions in government. History provides no support for this interpretation which would, in any event, fail to give effect to all the considerations or policies said to underlie the disqualification. In order to give effect to those considerations, the disqualification must be understood as embracing at least those persons who are permanently employed by government.

The first respondent seeks to find support for the interpretation for which he contends in judicial decisions relating to the word "office" in the context of revenue legislation. Thus, in Grealy v. Commissioner of Taxation, [F11] the Full Court of the Federal Court said the word:

"usually connotes a position of defined authority in an organisation, such as director of a company or tertiary educational body, president of a club or holder of a position with statutory powers."

In other cases, it has been held that the word signifies a subsisting permanent substantive position which exists independently of the person who fills it from time to time. [F12] However, the meaning of "office" turns largely on the context in which it is found and, in the light of the principal mischief which s 44(iv) and its predecessors were directed at eliminating or reducing, namely, Crown or executive influence over the House, such a restricted meaning cannot be given to "office" in s 44(iv).

Although a teacher is not an instance of the archetypical public servant at whom the disqualification was primarily aimed, a permanent public servant who is a teacher falls within the categories of public servants whose public service duties are incompatible, on the three grounds mentioned previously, with the duties of a member of the House of Representatives or of a senator. In this respect, the first respondent was a person who came within the statutory definition of "teachers", i.e., "permanent officers employed in the (teaching) service". [F13] As such a permanent officer in the teaching service, he held an "office". [F14] So much may be deduced from the statutory definitions of "officer" and "employee", the latter connoting a temporary employee. Indeed, this was conceded in argument by counsel for the first respondent.

Where an office in the teaching service is abolished, the holder of the office becomes an "unattached officer" and shall be deployed by the Chief General Manager [F15] to any other office which the Chief General Manager deems appropriate [F16] but, because "officer" is defined as meaning any person who holds an office, this does not mean that an "unattached" officer holds no office. And, even if the effect of the legislation is that an unattached officer ceases to hold an office within the meaning of the 1981 Act, the officer nonetheless remains a permanent employee of the Crown and is, for the purposes of s 44(iv), the holder of an office of profit under the Crown.

The taking of leave without pay by a person who holds an office of profit under the Crown does not alter the character of the office which he or she holds. The person remains the holder of an office, notwithstanding that he or she is not in receipt of pay during the period of leave. [F17]

Application to office of profit under the Crown in right of a State

The reference in s 44(iv) to "any office of profit under the Crown" (emphasis added) is apt to include an office of profit under the Crown in right of a State. Not only are the words wide enough to achieve this result but also the last paragraph of the section proceeds on the footing that, but for that paragraph, a State Minister would hold an office of profit under the Crown in right of a State and be disqualified. If such an office of profit in a State stood outside s 44(iv), there would have been no need to exclude State Ministers from the disqualification. The Convention Debates reveal that the exclusion of State Ministers from the disqualification was put forward because it was believed that State Ministers otherwise would be disqualified because each of them was relevantly the holder of an office of profit under the Crown. [F18] The exclusion of State Ministers from the disqualification was designed to ensure their availability for election at the inception of the Commonwealth Parliament. The exclusion in the last paragraph of s 44 of those receiving certain payments as officers or members of the Queen's navy or army proceeded likewise on the footing that otherwise s 44(iv) would disqualify such persons. Both the text of s 44(iv) and the reason for the inclusion of the last paragraph in the section support the opinion of the commentators that the disqualification extends to State officers. [F19]

Moreover, the long-standing reasons for disqualifying Commonwealth public servants from membership of the Houses of Parliament have similar force in relation to State public servants. The risk of a conflict between their obligations to their State and their duties as members of the House to which they belong is a further incident of the incompatibility of being, at the same time, a State public servant and a member of the Parliament.

It follows that the first respondent, as the holder of an office of profit under the Crown, fell within s 44(iv) until he resigned that office on 16 April 1992.

At what time does the disqualification operate?

The case for disqualification rests on that part of s 44 which provides that any person who falls within par.(iv) "shall be incapable of being chosen ... as a ... member of the House of Representatives". The petitioner submits that the word "chosen" extends to incorporate all the procedural steps necessarily involving the candidate in the electoral process so that the disqualification precludes participation in that process, including the step of nomination. On the other hand, the first respondent and the Attorney-General submit that a member is "chosen" when the member is declared to be elected, that is, when the poll is declared. On this interpretation of the provision, a candidate is disqualified only in the event that the disqualifying characteristic is in existence when the poll is declared. If this interpretation is accepted, the first respondent was not disqualified because his resignation took effect on 16 April 1992, before the declaration of the poll on 22 April 1992.

However, this interpretation must be rejected. As a matter of language, the disqualifying characteristics set out in s 44 are related to "being chosen". Whether those words refer to the act of choice or the process of being chosen is a question to be determined. Even on the narrower of the alternatives, namely, that the words refer to the act of choice, the outcome would be unfavourable to the first respondent. The people exercise their choice by voting, [F20] so that it is the polling day rather than the day on which the poll is declared that marks the time when a candidate is chosen by the people. Of course, an absentee or postal vote may be cast before the polling day and, in situations of emergency, arrangements may be made for the casting of votes after the polling day. [F21] But these characteristics of the polling do not justify the conclusion that the declaration of the poll, which is the formal announcement of the result of the poll, amounts to, or even coincides with, the choosing by the electors of the member for the relevant electoral division. The declaration of the poll is the announcement of the choice made; it is not the making of the choice.

The interpretation just rejected would, if it were upheld, enable a public servant who falls within par.(iv) in s 44 to avoid disqualification by resigning from the relevant office of profit after the polling day but before the declaration of the poll. The public servant could be nominated and stand for election and, if he or she secured a majority of votes, have an option to resign and be declared elected or not to resign and be disqualified. The adverse consequences this would have for the electoral process are an additional reason for rejecting the suggested interpretation. The inclusion in the list of candidates on polling day of a candidate who may opt for disqualification may well constitute an additional and unnecessary complication in the making by the electors of their choice. Furthermore, it is hardly conducive to certainty and speed in the ascertainment of the result of the election that it should depend upon a decision to be made by a candidate on or after polling day. Speed and certainty in the ascertainment of the result of the first election to the Parliament of the Commonwealth were enhanced by the fact that in 1901, in all the Australian colonies other than Queensland and parts of Tasmania, the "first past the post" system of electoral voting prevailed in lower House elections. [F22]

Reflection on these considerations persuades us that the words "shall be incapable of being chosen" refer to the process of being chosen, of which nomination is an essential part. [F23] That interpretation is supported by the Constitution which provides:

"A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House."

In that context, the words "shall be incapable of being chosen" must refer to the process of being chosen. It can scarcely have been intended that a member of Parliament could, while holding that office, stand for election for the other House of Parliament and, after the counting of the votes but before the declaration of the poll, resign the office which he or she then held, thereby ensuring his or her eligibility to be declared elected as a member of the other House.

It is to be noted that, under the Electoral Act, if only one candidate is nominated, the Divisional Returning Officer is required by the Electoral Act to declare that candidate duly elected [F24] and that declaration may be made in advance of the polling day. The fact that, in such a case, the "choice" is made by reference to the state of affairs existing on nomination day may well be a reason for concluding that, if a candidate is not qualified on nomination day, he or she is incapable of being chosen. However, as s 44 of the Constitution does not necessarily require that, in such a case, the "choice" be made in the manner dictated by s 179(2), the question may be put to one side. [F25]

This interpretation of s 44(iv), because it has the effect of discouraging public servants from standing for election to the Parliament, has been criticized. There is force in the view that the field of potential candidates for election should be as wide as possible, having due regard to the provisions of s 44. However, once it is accepted, as in our view it must be, that nomination is an essential element in the process of choice that is the electoral process, the answer to the question becomes inevitable.

It follows that the first respondent was incapable of being chosen as a member of the House of Representatives.

Question (b): If no to (a), was the election absolutely void?

Counsel for the third respondent submits that the Court should order a special count to be taken so that the preference votes on the elimination of the first respondent may be distributed. The decision in In re Wood, [F26] so it is said, supports this approach. That case decided that the election and return of an unqualified candidate are wholly ineffective to fill a vacant Senate place, that the election is not completed when an unqualified candidate is returned and that the purpose of the poll is to choose preferred candidates. In particular, In re Wood decided that a primary vote for an unqualified candidate does not destroy the voter's indication of his or her subsequent preferences. [F27] Although an indication of a voter's preference for an unqualified candidate is a nullity and the indication of preference for that candidate cannot be treated as effective, the ballot paper is not informal. It was held that "(t)he vote is valid except to the extent that the want of qualification makes the particular indication of preference a nullity" [F28] and that there is no reason for disregarding the other indications of the voter's preference. [F29]

The Court likened the position to that which arises when the candidate dies. Then, pursuant to s 273(27) of the Electoral Act, a vote indicated on the ballot paper for the deceased candidate is counted to the candidate next in the voter's indicated order of preference and the numbers indicating subsequent preferences are treated as altered accordingly. In these circumstances, the situation in In re Wood was such as to warrant the conclusion that the special count would reflect the voters' "true legal intent". [F30] Furthermore, in the light of the group system of voting which applies in Senate elections, it was highly probable, if not virtually certain, that a person who voted for Mr Wood would have voted for another member of his group, had the voter known that Mr Wood was ineligible. The same comment cannot be made in the present case. Here a special count could result in a distortion of the voters' real intentions because the voters' preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the first respondent.

As Mr Rose Q.C. for the Australian Electoral Commission points out, the Electoral Act draws a distinction between House of Representatives and Senate elections in the case of the death of a candidate. Section 180(2) provides that, if a candidate in a House of Representatives election dies between the declaration of the nominations and polling day, the election wholly fails, whereas, in the case of the death of a candidate in a Senate election between those days, s 273(27) provides that the votes should be counted with the preferences adjusted accordingly. The reasons which lie behind the drawing of that distinction have equal application to the drawing of a like distinction between the election to the House of Representatives and to the Senate of candidates who are disqualified under s 44.

Accordingly, we would declare the election void and refuse to order a special count.

Question (c): If no to (b), was any and which candidate duly elected who was not returned as elected?

As the second and third respondents may wish to stand for the next election for the Electoral Division of Wills, the Court should answer this question. The eligibility of the two respondents turns on that part of s 44 which 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: ...

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

Second respondent: facts

The second respondent, Mr Delacretaz, was born in Switzerland on 15 December 1923 and, from the time of his birth, was a Swiss citizen. He migrated to Australia on 13 June 1951 and has lived in Australia since then. On 20 April 1960 he became naturalized as an Australian citizen pursuant to Div.3 of Pt III of the Nationality and Citizenship Act 1948 (Cth). In so doing, he renounced all allegiance to any sovereign or State of whom or of which he was a subject or citizen and took an oath of allegiance to Her Majesty the Queen, by which he swore to "be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors according to law" and "faithfully (to) observe the laws of Australia and fulfil (his) duties as an Australian Citizen".

However, he did not at any time make application to the Government of Switzerland to renounce or otherwise terminate his Swiss citizenship. He has held an Australian passport since 1960 and it is still current. He holds no other passport.

Under the law of Switzerland, a Swiss citizen will be released from his or her citizenship upon his or her demand if he or she has no residence in Switzerland and has acquired another nationality. The second respondent has made no such demand and is and was at all material times under the law of Switzerland a Swiss citizen and entitled to a Swiss passport to enter Switzerland without restriction and to reside in that country.

Third respondent: facts

The third respondent, Mr Kardamitsis, was born in Greece on 2 July 1952 and, from the time of his birth, was a Greek citizen. He came to Australia in 1969 as a migrant sponsored by his brother and has lived in Australia since then.

On 12 March 1975, he became an Australian citizen pursuant to Div.2 of Pt III of the Australian Citizenship Act 1948 (Cth). In so doing, he renounced all other allegiance and swore the oath of allegiance in a form similar to, but not identical with, that sworn by the second respondent. He did not at any time make application to the Government of Greece to discharge his Greek nationality.

When he became an Australian citizen, he surrendered a Greek passport which he then held. It had expired one or two years after he had migrated to Australia. Between 1969 and 1978, he did not travel out of Australia. He was issued with an Australian passport on 24 April 1978, which was valid for five years, and a further Australian passport on 21 May 1987, which was valid for ten years and is still current. He entered Greece on his Australian passport for a holiday in 1978 and in 1987, and for the funeral of his mother in 1979 and of his father in 1990.

He has never received any social security or other like benefits from the Government of Greece. He has never stood for office in Greece or voted or been recorded as a voter in an election in Greece.

Since leaving Greece, he has not, to his knowledge, done any act, made any statement or acted in any manner which would place him under any acknowledgment of allegiance, obedience or adherence to Greece or any other foreign power. In becoming an Australian citizen, he took a conscious and serious step which he believed involved his breaking his bond of allegiance with Greece and his establishing a new bond of allegiance with Australia. He has habitually resided in Australia since leaving Greece. The centre of his interests is Australia, not Greece. His principal family ties are with Australia, not Greece. He has participated in public life in Australia and seeks further such participation. He has had no such participation in Greece and seeks none. He has a bond of attachment with Australia and not with Greece (except that Greece is part of his personal history), and he has inculcated the same bond in his children. Save that he has visited Greece on several occasions and that he has some family and friends in Greece, he has severed his links with Greece to the extent that any citizen of Greece can without applying to discharge his or her Greek citizenship.

Under the law of Greece, a Greek national will have his or her Greek nationality discharged if (a) he or she has acquired the nationality of another country with the permission of the appropriate Greek Minister; or (b) he or she has acquired the nationality of another country and later obtains the approval of the appropriate Greek Minister for the discharge of his or her Greek nationality. In the latter case, the discharge of Greek nationality becomes effective as from the date of the Greek Minister's approval and not from the date of the acquisition of foreign nationality. The third respondent has not sought to have his Greek nationality discharged and, accordingly, under the law of Greece, he is and was at all material times a Greek national. As a result, he is and was at all material times entitled to apply for a Greek passport and, using that passport, to enter Greece and stay in Greece without time restrictions and without permission.

It was first brought to the attention of the third respondent that he might not be qualified to be a member of the House of Representatives by reason of the Constitution after he was nominated. Until then he did not know that he might not be so qualified, despite being an Australian citizen, and that he might, according to the laws of Greece, still be a citizen of that country. He did not know that there were procedures available in Greece by which Greek nationals can terminate their Greek nationality until he was so informed after the petition was issued.

In 1972, he and his wife, a naturalized Australian citizen, were married in Melbourne. They have three children, who were born in Australia and are Australian citizens.

He was elected as a councillor for the Coburg City Council in 1989 and 1991 pursuant to Pt 3 of the Local Government Act 1989 (Vict.). Following each of these elections, he took an oath of allegiance as a councillor pursuant to s 63 of the Local Government Act. He resigned from his position as a councillor effective as from 18 March 1992.

On or about 5 July 1990, he was appointed as a Justice of the Peace for the State of Victoria pursuant to Pt III of the Magistrates' Courts Act 1971 (Vict.). On 18 July 1990, he swore an oath of office and an oath of allegiance pursuant to s 12 and Sched.2 of the Magistrates' Courts Act. By virtue of Div.1 of Pt 6 of that Act, he continues to be a Justice of the Peace for the State of Victoria.

Interpretation of s 44(i)

The petitioner submits that each of the second and third respondents is "a subject or citizen or is entitled to the privileges of a subject or citizen of a foreign power" within the meaning of s 44(i). In support of this submission, the petitioner argues that the respondents' assumption of Australian citizenship did not entail a renunciation of their antecedent citizenship or nationality and that, in order to achieve such a renunciation, it was necessary for them to comply with the requirements with respect to renunciation of citizenship or nationality of the law of Switzerland or Greece, as the case may be.

The common law recognizes the concept of dual nationality, so that, for example, it may regard a person as being at the same time a citizen or national of both Australia and Germany. [F31] At common law, the question of whether a person is a citizen or national of a particular foreign State is determined according to the law of that foreign State. [F32] This latter principle is, in part, a recognition of the principle of international law, restated in the Nottebohm Case, [F33] that:

"it is for every sovereign State ... to settle by its own legislation the rules relating to the acquisition of its nationality, and to confer that nationality by naturalization granted by its own organs in accordance with that legislation".

This rule finds expression in Art. 2 of the Hague Convention of 1930, [F34] to which Australia is a party:

"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."

And Art. 3 of that Convention acknowledges that a person having two or more nationalities may be regarded as its national by each of the States whose nationality he or she possesses.

In the Nottebohm Case, Liechtenstein sought to exercise its right of diplomatic protection [F35] in respect of acts of Guatemala with respect to the person and property of Nottebohm, a naturalized Liechtenstein citizen. The question considered was whether the naturalization conferred on Nottebohm by and under the law of Liechtenstein could successfully be invoked against Guatemala. The International Court of Justice pointed out that, where the question had arisen with regard to the exercise of diplomatic protection, international arbitrators had recognized 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" as that which gave rise to a right to exercise diplomatic protection. The majority went on to say that, in determining the real and effective nationality: [F36]

"(d)ifferent 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."

They said: [F37]

"(N)ationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than that with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-a-vis another State, if it constitutes a translation into juridical terms of the individual's connection with the State which has made him its national."

However, the critical words in s 44(i) do not permit this Court to adopt the approach which has been taken by international law. Here the question is different: is the candidate a subject or citizen or entitled to the rights or privileges of a subject or citizen of a foreign power? And, as already stated, at common law, as in international law, that question is to be determined according to the law of the foreign State concerned.

But, there is no reason why s 44(i) should be read as if it were intended to give unqualified effect to that rule of international law. To do so might well result in the disqualification of Australian citizens on whom there was imposed involuntarily by operation of foreign law a continuing foreign nationality, notwithstanding that they had taken reasonable steps to renounce that foreign nationality. It would be wrong to interpret the constitutional provision in such a way as to disbar an Australian citizen who had taken all reasonable steps to divest himself or herself of any conflicting allegiance. It has been said [F38] that the provision was designed to ensure:

"that members of Parliament did not have a split allegiance and were not, as far as possible, subject to any improper influence from foreign governments".

What is more, s 44(i) finds its place in a Constitution which was enacted at a time, like the present, when a high proportion of Australians, though born overseas, had adopted this country as their home. In that setting, it could scarcely have been intended to disqualify an Australian citizen for election to Parliament on account of his or her continuing to possess a foreign nationality, notwithstanding that he or she had taken reasonable steps to renounce that nationality. In this respect it is significant that s 42 of the Constitution requires a member of Parliament to take an oath or affirmation of allegiance in the form set out in the schedule to the Constitution.

What amounts to the taking of reasonable steps to renounce foreign nationality must depend upon the circumstances of the particular case. What is reasonable will turn on the situation of the individual, the requirements of the foreign law and the extent of the connection between the individual and the foreign State of which he or she is alleged to be a subject or citizen. And it is relevant to bear in mind that a person who has participated in an Australian naturalization ceremony in which he or she has expressly renounced his or her foreign allegiance may well believe that, by becoming an Australian citizen, he or she has effectively renounced any foreign nationality.

Application of s 44(i) to the second respondent

The second respondent omitted to make a demand for release from Swiss citizenship which would have been granted automatically as he has no residence in Switzerland and has been an Australian citizen for thirty-two years. Because he has failed to make such a demand, it cannot be said that he has taken reasonable steps to divest himself of Swiss citizenship and the rights and privileges of such a citizen. Application of s 44(i) to the third respondent

The third respondent has omitted to seek the approval of the appropriate Greek Minister for the discharge of his Greek nationality. Whether the grant of that approval is a matter of discretion or is automatic is not altogether clear. Presumably it is the former. But, in the absence of an application for the exercise of the discretion in favour of releasing the third respondent from his Greek citizenship, it cannot be said that he has taken reasonable steps to divest himself of Greek citizenship and the rights and privileges of such a citizen.

We would answer the questions reserved for the consideration of the Full Court as follows:

(a)
No.
(b)
Yes.
(c)
Does not arise.
(d)
By consent there should be no order for costs.