High Court Holds Katy Gallagher Ineligible For Parliament Due To Dual Citizenship: [2018] HCA 17

Wednesday 9 May 2018 @ 1.47 p.m. | Legal Research

Today, 9 May 2018, the High Court of Australia ruled that Labor Senator Katy Gallagher is ineligible to hold her seat in the Australian Parliament as she had failed to take all reasonable steps to renounce her dual citizenship prior to nominating for the 2016 election: Re Gallagher [2018] HCA 17. In a unanimous decision, Chief Justice Kiefel, Justices Bell, Gageler, Keane, Nettle, Gordon and Edelman ruled that Ms Gallagher had not taken all steps reasonable required to renounce her citizenship, further clarifying that this defence is only applicable where the law of the foreign country “irremediably prevents” the Australian citizen from renouncing foreign citizenship (see paragraph [39]).

The Facts

Senator Gallagher was born a Citizen of the United Kingdom. Prior to nominating for election on 31 May 2016, Senator Gallagher applied through the Australian Labor Party to the Home Office of the United Kingdom to renounce her British Citizenship. Senator Gallagher was elected as senator for the Australian Capital Territory on 2 August 2016. She received her renunciation of citizenship from the Home Office on 16 August 2016.

The Law

Section 44 of the Constitution sets out the restrictions on who can be a candidate for the Australian Parliament. Relevantly to this case, section 44(i) states that:

Any person who:

(i) Is under any acknowledgement 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 citizen of a foreign power […]

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

The implied exception to this provision (the "constitutional imperative"), as provided for in the case Re Canavan [2017] HCA 45, was discussed by Justice Gageler at paragraph [44] of his judgment:

"The implied exception to the operation of the disqualification expressed in s 44(i) is accordingly engaged where a person who has the status of citizen of another country under the law of that country, and who therefore falls within the expressed ambit of the disqualification, is an Australian citizen who irremediably retains the status of citizen of another country under the law of that country despite having taken all steps reasonably within his or her power to renounce that citizenship under the law of that country.  Critical to recognise is that it is the irremediable nature of the retention of foreign citizenship in circumstances of the Australian citizen having taken all steps reasonably available to him or her under the applicable foreign law to effect renunciation which justifies the implication of the exception to the operation of the disqualification and which sets the boundaries of the operation of the exception."

The Judgment

In finding Senator Gallagher ineligible to sit in the Federal Parliament, the High Court found that she had not taken all reasonable steps to renounce her Citizenship of the United Kingdom as the law of Britain had not operated to irremediably prevent her from renouncing her citizenship (see the judgment of Chief Justice Kiefel, Justices Bell, Keane, Nettle and Gordon at paragraph [38]-[39]):

"Senator Gallagher's contention is that because she had done all that was required of her by British law and which was within her power to do, everything that occurred thereafter under British law which prevented her nomination is to be regarded as an irremediable impediment.  Such a submission finds no support from what was said in Re Canavan.  It is not sufficient for the exception to s 44(i) to apply for a person to have made reasonable efforts to renounce.  In Re Canavan it was explicitly said that the majority in Sykes v Cleary did not suggest that a candidate who made a reasonable effort to comply with s 44(i) was thereby exempt from compliance with it.

The questions in this reference turn upon one issue:  whether British law operated to irremediably prevent an Australian citizen applying for renunciation of his or her British citizenship from ever achieving it.  An affirmative answer cannot be given merely because a decision might not be provided in time for a person's nomination.  The exception is not engaged by a foreign law which presents an obstacle to a particular individual being able to nominate for a particular election."

Justice Gageler further elaborated on this reasoning at paragraph [46]:

"Assuming Senator Gallagher to have done everything reasonably within her power to renounce her British citizenship under the law of the United Kingdom by 6 May 2016, the fact is that she remained a British citizen under the law of the United Kingdom until registration of her renunciation in accordance with that law on 16 August 2016.  Retention of her British citizenship is shown to have been remediable by the fact of that subsequent registration.  It follows that the implied exception to the disqualification expressed in s 44(i) of the Constitution was not at any time engaged.  Senator Gallagher remained a citizen of a foreign power at the time of her nomination for election to the Senate on 31 May 2016 and was for that reason incapable of being chosen as a senator at the double dissolution election which occurred on 2 July 2016."

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Re Gallagher [2018] HCA 17.

Re Canavan [2017] HCA 45.

Commonwealth of Australia Constitution Act, available on TimeBases LawOne service.

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