In light of the present issues surrounding the construction of s 44(i) of the Constitution, we thought it would be useful to provide a refresher concerning the 1992 case of Sykes v Cleary 176 CLR 77 where the High Court applied s 44(i) to two would-be parliamentarians. That section 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.”
For the purpose of this summary, only the position of one of the relevant respondents (the third respondent) is discussed. He had been born in Greece in 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. In 1975, he became an Australian citizen pursuant to the Australian Citizenship Act 1948 (Cth) and in doing so renounced all other allegiance and swore the usual oath of allegiance. However, 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 and was issued with an Australian passport in 1978, renewed and current in 1992. Residing habitually in Australia, he entered Greece once on a holiday and also for the funeral of his mother in 1979 and of his father in 1990. It was evident that the centre of his interests was Australia, not Greece.
Per Mason CJ, Toohey and McHugh JJ:
- “… at common law, as in international law, that question (is the candidate a subject or citizen or entitled to the rights or privileges of a subject or citizen of a foreign power) 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”.
- “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.”
- “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.”
Applying s 44(i) to the third respondent, their Honours concluded (Brennan and Dawson JJ concurring):
“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.”
Deane and Gaudron JJ dissented, with Deane J stating: “Mr Kardamitsis (the third respondent) 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. … 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 s 44(i) of the Constitution, relinquished and extinguished his relationship with Greece to the extent that it would represent a cause of disqualification.”
Of particular importance, Deane J added: “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. 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. Accordingly, and notwithstanding that citizenship of a country is ordinarily a matter determined by the law of that country … 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.”
Gaudron J, concurring with Deane J and referring in particular to the words in the Citizenship Act, as it stood in 1975, “renouncing all other allegiance”, said: “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.” Thus, said her Honour, “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.” There was no evidence of such reassertion before the court here.
Summary written by Christine Henchman LLB (Syd), writer and editor for Wolters Kluwer’s “Australian High Court & Federal Court Practice”.