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High Court Citizenship Decision

The High Court held that the Constitution means what it says - a citizen of another country cannot be elected or sit in parliament. Whether the person new or did not know or was careless in failing to find out was irrelevant.

The High Court held Senator Canavan was not (under Italian law) an Italian citizen. The High Court held that Senator Xenophon’s status (connected with Cyprus) as a "British Overseas Citizen" was not the same as British citizenship. He was therefore not a citizen of a foreign country.

  1. Summary as to the proper construction of s 44(i)
  2. The approaches to the construction of s 44(i) urged on behalf of the Attorney General, Mr Joyce MP and Senator Nash, and Mr Ludlam and Ms Waters are rejected.
  3. Section 44(i) operates to render "incapable of being chosen or of sitting" persons who have the status of subject or citizen of a foreign power. Whether a person has the status of foreign subject or citizen is determined by the law of the foreign power in question. Proof of a candidate’s knowledge of his or her foreign citizenship status (or of facts that might put a candidate on inquiry as to the possibility that he or she is a foreign citizen) is not necessary to bring about the disqualifying operation of s 44(i).
  4. A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.
  5. We turn now to consider the application of s 44(i) to the facts of each reference. Senator the Hon Matthew Canavan
  6. Senator Canavan nominated for election as a senator at the general election for the Parliament held on 2 July 2016. At the time, Senator Canavan believed that he was a citizen of Australia and of no other country. Senator Canavan was returned on 5 August 2016 as an elected senator for Queensland. In issue is whether at the date of his nomination Senator Canavan was a citizen of Italy by descent.
  7. Senator Canavan was born in Southport, Queensland in 1980. His father was born in Toowoomba, Queensland. His mother, Maria Canavan, was born in Ayr, Queensland in October 1955. Senator Canavan’s only link to Italy is through his maternal grandparents, Gaetano and Rosalia Zanella, both of whom were born in Lozzo di Cadore, Belluno, Italy. In 1951 Gaetano and Rosalia Zanella migrated to Australia and each later became an Australian citizen: Gaetano was naturalised in September 1955 and Rosalia was naturalised in September 1959. By becoming Australian citizens, and by making Australia their place of residence, under Italian law Gaetano and Rosalia Zanella ceased to be Italian citizens. When Senator Canavan was born, his parents and grandparents were Australian citizens and only Australian citizens.
  8. Senator Canavan has never visited Italy and has never taken any steps to acquire Italian citizenship.
  9. Before 2006, it had not occurred to Senator Canavan that he or his siblings might be Italian citizens. Sometime during that year, his mother told him that he was eligible to apply for Italian citizenship and she gave him some documents to complete if he wished to pursue the matter. Senator Canavan did not wish to become an Italian citizen and he did not complete the documents. He was aware that his brother had taken steps to become an Italian citizen and to acquire an Italian passport.
  10. On 18 July 2017, Senator Canavan’s mother told him that he may have been registered as an Italian citizen as a result of steps that she had taken to become an Italian citizen. The following day Senator Canavan set in train inquiries to determine his citizenship status under Italian law. On 24 July 2017, he was informed by an Italian consular official that he had been registered as an Italian citizen in 2006. The following day Senator Canavan received written confirmation from the Italian Embassy that his name was registered with the Italian Consulate in Brisbane, that the registration had been "requested by your mother for yourself and for your brother and sister as well" and that his name also appeared in the list of Italians eligible to vote abroad. Senator Canavan was informed that the registration had been received by the Municipality of Lozzo di Cadore on 18 January 2007. A copy of the request was attached to the letter. It is contained in a pro forma document described as "Form for Registration in Register of Italians Resident Abroad – A.I.R.E.". The form provided for the inclusion of information about adult children residing with the registrant. In this section the names and personal details of Senator Canavan’s younger sister and brother were set out. In a further section headed "information about married children or who do not reside with you" Senator Canavan’s name and personal details were set out. The form was signed by Senator Canavan’s mother and dated 15 June 2006.
  11. On 31 July 2017, Senator Canavan wrote to the Italian Consulate in Brisbane stating that he was seeking advice on his status and that "[r]egardless of the legitimacy of my Italian citizenship" he wished to renounce any citizenship or registration he had with the Italian government. On 7 August 2017, Senator Canavan attended the Italian Embassy in Canberra and formally renounced any Italian citizenship. The renunciation took effect from 8 August 2017.
  12. The evidence of Italian citizenship law is contained in the joint report of Maurizio Delfino and Professor Beniamino Caravita di Toritto ("the joint report"), both of whom are practising Italian lawyers. From the joint report it emerges that Senator Canavan’s status, if any, as an Italian citizen does not arise from any step taken by his mother in 2006 but rather from the circumstance that his maternal grandmother had not renounced her Italian citizenship at the date of his mother’s birth. At the time of Senator Canavan’s mother’s birth the fact that her mother was an Italian citizen did not confer Italian citizenship on her. Under a law enacted in 1912 ("the 1912 law") only the child of a father who was an Italian citizen became an Italian citizen by birth. Senator Canavan’s mother was born in October 1955, a month after her father was naturalised as an Australian citizen. An Italian citizen who acquired the citizenship of a foreign country and who took up residence in the foreign country automatically lost his or her Italian citizenship. At the time of her birth Senator Canavan’s mother was an Australian citizen and only an Australian citizen. When Senator Canavan was born in 1980 he was an Australian citizen and only an Australian citizen.
  13. The joint report explains that in 1983 the Italian Constitutional Court declared provisions of the 1912 law unconstitutional to the extent that they operated to deny equal treatment to male and female Italians. From the date of the Constitutional Court’s decision and with effect from the date the new Italian Constitution came into force (1 January 1948), Italian citizenship passed to a child either of whose parents was an Italian citizen. The effect of the decision was that Senator Canavan’s mother became an Italian citizen by birth and, on one view, Senator Canavan became an Italian citizen "retroactively" to the date of his birth.
  14. Senator Canavan’s mother’s marriage to his father in 1979 did not affect any right of Italian citizenship arising from the Constitutional Court’s decision. At the time, Italian law provided that a female citizen lost her Italian citizenship on marriage to a foreign citizen provided the husband’s citizenship was transmitted to the wife. The provision did not apply to Senator Canavan’s mother because she was already an Australian citizen when she married an Australian husband. Italian citizenship is currently governed under a law enacted in 1992, which provides that the child of a parent who is an Italian citizen is an Italian citizen by birth.
  15. As will appear, there is a question as to whether registration is merely declaratory of the status of citizen or a condition of the grant of the status in the case of citizenship by descent. The authors of the joint report explain that where a person files an application with supporting documents with an Italian Consulate for registration with A.I.R.E., the Consulate liaises with the Italian municipality in which the applicant’s ancestor lived in order to establish "a continuous chain of ancestry". The Consulate sends the applicant’s birth certificate to the Italian municipality, which registers the applicant. Registration as a citizen is described as a "separate and more rigorous process". The authors of the joint report conclude that Senator Canavan’s mother applied for registration with A.I.R.E. in her own interest and that the registration of Senator Canavan and his siblings occurred at the initiative of the Consulate in Brisbane.
  16. Registration with A.I.R.E. is distinguished in the joint report from a request for the declaration of Italian citizenship, which is required to follow the steps set out in a circular issued by the Italian Ministry of Foreign Affairs in 1991 ("the circolare"). The authors of the joint report state that "[o]nly after the request made by the individual for the recognition iure sanguinis of the Italian citizenship has been ascertained to be well grounded, may the consulate issue the relevant certificate of citizenship". They observe that it is not known if "the investigation and controls" referred to in the circolare have been carried out. They state that the A.I.R.E. certificate issued by the Mayor of the Municipality of Lozzo di Cadore "should not per se be considered a recognition of Italian citizenship": under the circolare only the interested party, who must be of age, can apply for citizenship.
  17. In the concluding section of the joint report, the authors consider whether the issue of a certificate of citizenship is merely declaratory. They conclude that the more reasonable interpretation of Italian law, in line with the adoption of the "subjective conception of citizenship" under the Italian Constitution, is that the administrative steps described in the circolare (which are expressed to apply to applicants for Italian citizenship arising from events before the commencement of the law of 1992) are matters of substance, amounting to a prerequisite to the "potential" citizenship right being activated.
  18. Senator Canavan has not applied for a declaration of Italian citizenship. On the evidence before the Court, one cannot be satisfied that Senator Canavan was a citizen of Italy. The concluding section of the joint report suggests that he was not. Given the potential for Italian citizenship by descent to extend indefinitely – generation after generation – into the public life of an adopted home, one can readily accept that the reasonable view of Italian law is that it requires the taking of the positive steps referred to in the joint report as conditions precedent to citizenship.
  19. For these reasons, the first question, namely, whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation of Queensland in the Senate for the place for which Senator Canavan was returned, is answered "no". Mr Scott Ludlam
  20. Mr Ludlam lodged his nomination as a candidate for election to the Senate for Western Australia with the Australian Electoral Commission on 18 May 2016. At the time of his nomination, Mr Ludlam was unaware that he held any citizenship other than Australian citizenship. Mr Ludlam was returned on 2 August 2016 as an elected senator for Western Australia at the general election for the Parliament held on 2 July 2016.
  21. In July 2017, Mr Ludlam’s office was contacted by Mr John Cameron, who stated that he had reason to believe that Mr Ludlam may be a citizen of New Zealand as well as of Australia. In consequence of this contact, Mr Ludlam made inquiries for the first time as to whether he was a dual citizen. His dual citizenship was confirmed by the New Zealand High Commission on 10 July 2017. On 14 July 2017, Mr Ludlam wrote to the President of the Senate resigning his position as a senator for Western Australia.
  22. Mr Ludlam does not dispute that his citizenship of New Zealand, although unknown to him, disqualified him from being chosen or sitting as a senator. The circumstances of his New Zealand citizenship can be briefly stated. Mr Ludlam was born in Palmerston North, New Zealand in January 1970. His parents left New Zealand in 1973. In October 1978 the family arrived in Perth, Western Australia. Mr Ludlam, his brother and his parents were naturalised as Australian citizens in April 1989. Mr Ludlam believed that upon his naturalisation as an Australian citizen he was exclusively an Australian citizen and that he held no other citizenship.
  23. The evidence of New Zealand citizenship law is contained in the report of Mr David Goddard QC, of the New Zealand bar. In summary, at the date of Mr Ludlam’s birth, the British Nationality and New Zealand Citizenship Act 1948 (NZ) ("the 1948 NZ Act") governed citizenship in New Zealand. Subject to exceptions to which it is unnecessary to refer, the 1948 NZ Act provided that every person born in New Zealand after its commencement shall be a citizen of New Zealand by birth. The 1948 NZ Act was repealed by the Citizenship Act 1977 (NZ) ("the 1977 NZ Act"), which remains in force today. Mr Ludlam’s New Zealand citizenship under the 1948 NZ Act was preserved by the 1977 NZ Act. Under the 1977 NZ Act a New Zealand citizen may lose his or her citizenship by renouncing it or, in limited circumstances, by ministerial order. It is not in question that Mr Ludlam had not lost his New Zealand citizenship at the date he nominated for election to the Senate.
  24. Mr Ludlam was incapable of being chosen or sitting as a senator under s 44(i) of the Constitution and so there is a vacancy in the representation of Western Australia in the Senate for the place for which Mr Ludlam was returned. Ms Larissa Waters
  25. Ms Waters nominated with the Australian Electoral Commission for election as a senator for Queensland on 9 June 2016. At the time, Ms Waters believed that she was solely an Australian citizen. Ms Waters was returned on 5 August 2016 as an elected senator for Queensland at the general election for the Parliament held on 2 July 2016.
  26. Ms Waters was born in February 1977 in Winnipeg, Canada to Australian parents who were living in Canada at the time for study and work purposes. Neither was a permanent resident of Canada. Ms Waters’ birth was registered with the Australian High Commission in Ottawa in June 1977. It was not in doubt that Ms Waters was an Australian citizen by descent. In January 1978, as an infant aged 11 months, Ms Waters left Canada with her parents, who were returning to live in Australia.
  27. Ms Waters has never held a Canadian passport. She has not visited Canada since leaving it in January 1978. She has always considered herself to be an Australian and has never understood that she owes allegiance to any other country. She has not sought or received consular assistance or any other kind of government assistance from Canada and she has not exercised any rights as a Canadian citizen. Her mother had given her to understand that she would be eligible to apply for Canadian citizenship when she turned 21. On turning 21 in 1998, Ms Waters considered applying for Canadian citizenship but she decided against it.
  28. On 14 July 2017, following Mr Ludlam’s resignation from the Senate, Ms Waters’ father raised with her a concern that her citizenship status may have been affected by her birth in Canada. Ms Waters sought advice from the Clerk of the Senate and from the Canadian authorities. In light of the advice, Ms Waters concluded that she was a Canadian citizen. On 18 July 2017, Ms Waters wrote to the President of the Senate resigning from the Senate with immediate effect. On 27 July 2017, Ms Waters applied to the High Commission of Canada seeking to renounce her Canadian citizenship. On 7 August 2017, Ms Waters received written confirmation from the High Commission of Canada that she had ceased to be a Canadian citizen with effect from 5 August 2017.
  29. The evidence of Canadian citizenship law is contained in the report of Mr Lorne Waldman, a practising Canadian lawyer. In summary, at the time of Ms Waters’ birth, Canadian citizenship was governed by the Canadian Citizenship Act, RSC 1970, c C-19, which, relevantly, provided that a person born after 31 December 1946 is a natural-born Canadian citizen if the person is born in Canada. Canadian-born children of parents having certain diplomatic connections are excepted from the conferral of Canadian citizenship at birth. There is no suggestion that Ms Waters’ parents came within that exception. The Citizenship Act, SC 1974-75-76, c 108 came into force a week after Ms Waters’ birth and does not affect her status as a Canadian citizen. The registration of Ms Waters’ birth with the Australian High Commission[58] did not affect her acquisition of Canadian citizenship. The sole basis on which Ms Waters could lose her citizenship from the date of her birth until June 2014 was by way of renunciation. For a closed period between June 2014 and June 2017 there were limited circumstances in which the government of Canada was empowered to revoke the citizenship of persons born in Canada. These provisions have since been revoked with retroactive effect. Ms Waters maintained her Canadian citizenship until her renunciation of it.

    [58] See Australian Citizenship Act 1948 (Cth), s 11 (as at 8 February 1977).


  30. Ms Waters was incapable of being chosen or sitting as a senator under s 44(i) of the Constitution, and so there is a vacancy in the representation of Queensland in the Senate for the place for which Ms Waters was returned. Senator Malcolm Roberts
  31. Senator Roberts completed the nomination for election as a senator for Queensland on 3 June 2016. He stated that he was an Australian citizen by naturalisation and that he was not by virtue of s 44 of the Constitution incapable of being chosen as a senator. Senator Roberts was returned on 5 August 2016 as an elected senator for Queensland at the general election for the Parliament held on 2 July 2016. The Senate resolved to refer questions to this Court concerning whether there is a vacancy in the representation of Queensland for the place for which Senator Roberts was returned following the submission of documents to the Senate that suggested that Senator Roberts was a citizen of the United Kingdom at the date of his nomination.
  32. The reference gave rise to some disputed questions of fact. These were determined by Keane J in reasons delivered on 22 September 2017[59]. His Honour summarised the uncontroversial evidence as follows. Senator Roberts’ father was born in Wales in 1923. His mother was born in Queensland in 1918. Around 1946, his father moved to India to work as the manager of a coal mine. His father travelled to Australia around 1954 where he met and married Senator Roberts’ mother. After an Australian passport was issued to the mother in September 1954, she and the father moved to West Bengal. Senator Roberts was born in Disergarh, West Bengal, India in May 1955 and his name was recorded in the High Commissioner’s Record of Citizens of the United Kingdom and Colonies. An entry was made around June 1955 on his mother’s passport by the Australian Trade Commissioner in Calcutta to allow Senator Roberts, then a child, to travel with his mother. The entry stated that Senator Roberts "is the child of an Australian citizen but has not acquired Australian citizenship". The Roberts family moved to Australia around 1962. In 1974, Senator Roberts, then a student at the University of Queensland, applied to become an Australian citizen and was naturalised as such on 17 May 1974.

    [59] Re Roberts [2017] HCA 39.


  33. Evidence of British citizenship law was given by Mr Laurie Fransman QC, who was called as a witness by the Attorney General, and by Mr Adrian Berry of Counsel, who was called by Senator Roberts. Each of these barristers practises in the United Kingdom specialising in citizenship law. On the basis of their evidence, Keane J found that Senator Roberts was a citizen of the United Kingdom by descent at the time of his nomination for election as a senator[60]. By virtue of his father’s nationality, Senator Roberts was born a "citizen of the United Kingdom and Colonies", the principal form of British nationality in the period 1 January 1949 to 31 December 1982. On 1 January 1983, the British Nationality Act 1981 (UK) ("the BNA 1981") came into force and Senator Roberts became a British citizen by descent.

    [60] Re Roberts [2017] HCA 39 at [73] [74].


  34. Keane J found that Senator Roberts knew that he did not become an Australian citizen until May 1974 and at the date of his nomination for the Senate Senator Roberts knew that there was at least a real and substantial prospect that prior to May 1974 he had been and that he remained thereafter a citizen of the United Kingdom[61]. Senator Roberts ceased to be a citizen of the United Kingdom on 5 December 2016, on the registration of his declaration of renunciation of citizenship.

    [61] Re Roberts [2017] HCA 39 at [116].


  35. Senator Roberts was incapable of being chosen or sitting as a senator under s 44(i) of the Constitution, and so there is a vacancy in the representation of Queensland in the Senate for the place for which Senator Roberts was returned. The Hon Barnaby Joyce MP
  36. Mr Joyce MP nominated for election to the House of Representatives as the member for the electorate of New England on 2 June 2016. His election as the member for New England in the general election for the Parliament held on 2 July 2016 was declared on 15 July 2016. In issue is whether Mr Joyce MP was incapable of being chosen as a member of the House of Representatives by reason of being a citizen of New Zealand.
  37. Mr Joyce MP was born in April 1967 at Tamworth Base Hospital, Tamworth, New South Wales. His father was born in Dunedin, New Zealand in 1924. His mother was born in Gundagai, New South Wales in 1930. Mr Joyce MP’s father came to Australia in 1947, and undertook studies in veterinary science at the University of Sydney. While at the University of Sydney, Mr Joyce MP’s father met his mother and they were married in April 1956. Mr Joyce Snr was naturalised as an Australian citizen in 1978. At that time, he also renounced his New Zealand citizenship. Mr Joyce MP has always known that his father was born in New Zealand. He understood that his father had become an Australian citizen in 1978 and was solely an Australian citizen.
  38. Mr Joyce MP grew up on a property outside Tamworth, New South Wales. He was educated at schools in New South Wales and at the University of New England, Armidale. He was a member of the Australian Army Reserve between October 1996 and September 2001. He was elected as a senator for Queensland in 2004. In 2013 he resigned from the Senate and was elected to the House of Representatives as the member for the electorate of New England at the federal election held that year. When Mr Joyce MP nominated for election to the Senate in 2004, he completed a form which referred to s 44(i) of the Constitution. His belief at that time and at the time of nominating for election at the general election held on 2 July 2016 was that s 44(i) had no application to him because he was a citizen of Australia only.
  39. In late July 2017, Mr Joyce MP’s office received inquiries from the media asking if he was a dual citizen of Australia and New Zealand. Mr Joyce MP had not been aware of the possibility that he held dual citizenship before these inquiries came to his attention. Mr Joyce MP has never applied to become a New Zealand citizen. He has not sought or accepted any privileges as a citizen of New Zealand.
  40. On 10 August 2017, Mr Joyce MP met with the New Zealand High Commissioner, who conveyed to him that in the eyes of the New Zealand government he was a citizen of New Zealand by descent. On 12 August 2017, Mr Joyce MP received a memorandum of advice from Mr David Goddard QC, of the New Zealand bar, confirming that under New Zealand law Mr Joyce MP was a citizen of New Zealand by descent. On that day, Mr Joyce MP attended the New Zealand High Commission and completed a declaration of renunciation of New Zealand citizenship.
  41. Mr Goddard’s advice concerning New Zealand citizenship law as it applies to Mr Joyce MP is part of the evidence on the reference. So, too, is the opinion of Mr Francis Cooke QC, also of the New Zealand bar, who was retained by the solicitors acting for Mr Windsor. Mr Goddard and Mr Cooke are agreed with respect to Mr Joyce MP’s status as a citizen of New Zealand from birth until he renounced his citizenship. In summary, the status of "New Zealand citizen" was first provided under the 1948 NZ Act. Relevantly, persons who were British subjects immediately before its commencement and who were born in New Zealand became New Zealand citizens by birth under the 1948 NZ Act. Mr Joyce MP became a New Zealand citizen by descent by virtue of s 7 of the 1948 NZ Act, which provided that a person born after its commencement is a New Zealand citizen by descent if his father was a New Zealand citizen at the time of his birth. Mr Joyce MP’s acquisition of New Zealand citizenship by descent did not depend upon registration or other formality.
  42. Mr Joyce Snr’s renunciation of his New Zealand citizenship in 1978 operated with prospective effect only and did not affect his son’s status as a New Zealand citizen. That status could only be lost by renunciation or, in limited circumstances, by ministerial order. Mr Cooke’s report describes the main rights enjoyed by New Zealand citizens under New Zealand law, including to enter and live in New Zealand and to hold a New Zealand passport. He also notes that New Zealand citizens living outside New Zealand are amenable to certain of the offences for which the Crimes Act 1961 (NZ) provides.
  43. At the date of his nomination Mr Joyce MP was incapable of being chosen or sitting as a member of the House of Representatives because he was a citizen of New Zealand; and so the place of the member for New England in the House of Representatives is vacant.
    Senator the Hon Fiona Nash
  44. Senator Nash nominated for election to the Senate on 1 June 2016. In completing the nomination form, Senator Nash read the text of s 44(i). At the time, she believed that she was a citizen of Australia and of no other country. Senator Nash was returned on 5 August 2016 as a senator for New South Wales at the general election for the Parliament held on 2 July 2016.
  45. Senator Nash was born in Sydney in May 1965. Her father, Raemond Morton, was born in East Lothian, Scotland in 1927. Her mother, Joy Hird, was born in Sydney, New South Wales in January 1928. Her mother travelled to the United Kingdom to work as a doctor when she was aged in her twenties. She met Senator Nash’s father in London and the two were married in April 1956 in Essex, England. Following the marriage, Senator Nash’s older sisters were born in England. Sometime between 1960 and 1962, Senator Nash’s family moved to Australia. Her parents divorced in 1973 when she was eight years old. Thereafter Senator Nash was raised by her mother and had little contact with her father until the later years of his life. As a child, Senator Nash was aware that her father was born in Scotland. She was also aware that her sisters were British citizens, having been born in England.
  46. Senator Nash was educated in New South Wales and following completion of her studies she worked with her husband in a mixed farming business in Crowther, New South Wales. She was sworn in as a senator for New South Wales on 1 July 2005 and has served as a senator since that time.
  47. On 14 August 2017, following Mr Joyce MP’s statement to the House of Representatives concerning his citizenship status, Senator Nash sought advice from the United Kingdom Home Office concerning her status. On 14 August 2017, Senator Nash was advised by an official of the Home Office of his view that she was a British citizen. On 17 August 2017, Senator Nash received a copy of the opinion of Mr Laurie Fransman QC, that she was a British citizen. Before 14 August 2017 Senator Nash did not know that she was a British citizen. It was her belief that if she wished to become a British citizen she would have to apply to have the status conferred on her. Senator Nash has never visited the United Kingdom, nor has she sought or received any privileges from the United Kingdom by reason of her citizenship. On 18 August 2017, Senator Nash completed a declaration renouncing her British citizenship. On 21 August 2017, Senator Nash received confirmation from the Home Office that she is no longer a British citizen.
  48. Mr Fransman’s advice concerning the law governing British citizenship in its application to Senator Nash forms part of the evidence on the reference. In summary, before 1949, the primary form of British nationality was British subject status. Under the British Nationality and Status of Aliens Act 1914 (UK)[62], any person born within the King’s dominions and allegiance was deemed to be a natural-born British subject. Following the unification of England and Scotland, Scotland formed part of the Crown’s dominions and, generally, birth within the Crown’s dominions entailed allegiance to the Crown. Senator Nash’s father was born within the Crown’s dominions and allegiance and was a natural born British subject. The British Nationality Act 1948 (UK)[63] ("the BNA 1948") made the primary form of British nationality "citizenship of the United Kingdom and Colonies". On its commencement, Senator Nash’s father was reclassified as a citizen of the United Kingdom and colonies. The BNA 1948 distinguished between citizens of the United Kingdom and colonies by descent and otherwise than by descent. Senator Nash’s father was a citizen of the United Kingdom and colonies otherwise than by descent. His nationality was unaffected by his marriage to an Australian or his migration to Australia.

    [62] 4 & 5 Geo 5 c 17. [63] 11 & 12 Geo 6 c 56.


  49. On 1 January 1973, on the commencement of the Immigration Act 1971 (UK) ("the IA 1971"), Senator Nash’s father, having been a citizen of the United Kingdom and colonies otherwise than by descent, acquired a new status called "patriality", otherwise known as the right of abode in the United Kingdom[64]. On 1 January 1983, on the commencement of the BNA 1981, the primary form of British nationality became "British citizenship". At that moment, Senator Nash’s father became a British citizen otherwise than by descent[65].

    [64] Immigration Act 1971 (UK), s 2(1)(a). [65] See British Nationality Act 1981 (UK), s 14.


  50. As a person who was born a legitimate child outside the United Kingdom and colonies to a father who was a citizen of the United Kingdom and colonies otherwise than by descent, Senator Nash became a citizen of the United Kingdom and colonies by descent at birth[66]. On 1 January 1973, on the commencement of the IA 1971, Senator Nash acquired the right of abode in the United Kingdom[67]. On 1 January 1983, on the commencement of the BNA 1981, Senator Nash became a British citizen[68].

    [66] British Nationality Act 1948 (UK), s 5(1). [67] Immigration Act 1971 (UK), s 2(1)(b)(i). [68] British Nationality Act 1981 (UK), s 11(1).


  51. At the date of her nomination as a senator for New South Wales, Senator Nash remained a British citizen, having not renounced that status and not having been deprived of it. Senator Nash was incapable of being chosen or sitting as a senator by reason of s 44(i) of the Constitution, and so there is a vacancy in the representation of New South Wales in the Senate for the place for which Senator Nash was returned. Senator Nick Xenophon
  52. Senator Xenophon was returned on 4 August 2016 as a senator for South Australia at the general election for the Parliament held on 2 July 2016.
  53. Senator Xenophon has always considered himself to be an Australian. He was born in January 1959 in Toorak Gardens, South Australia. He has resided all his life in Australia and has always been an Australian citizen. He was brought up in a household in which he describes his cultural heritage as Australian of Hellenic descent. He spoke Greek and English at home. He was baptised in the Greek Orthodox faith and regularly attended the Greek Orthodox Church in Norwood, South Australia. His father was born in Cyprus in July 1931. His father emigrated from Cyprus to Australia in 1951 and was naturalised as an Australian citizen in July 1965. Senator Xenophon’s mother was born in Greece in January 1928. She emigrated to Australia in 1956 and was naturalised as an Australian citizen in September 1963. At the time of their naturalisation each of Senator Xenophon’s parents renounced allegiance to all other foreign sovereigns.
  54. In October 1997, Senator Xenophon was elected as a member of the Legislative Council in South Australia. Prior to his first election to the Australian Senate in November 2007, Senator Xenophon considered it prudent, because of his Hellenic background, to renounce any entitlement that he might have to citizenship of Greece or Cyprus. He wrote to the Greek Embassy and the High Commission of Cyprus, in each case renouncing any right of citizenship. It is common ground that Senator Xenophon is not a citizen of either Greece or Cyprus.
  55. Senator Xenophon was subsequently re-elected to the Australian Senate on 7 September 2013 and 2 July 2016. At no time prior to either election did it cross his mind that he might have some form of British citizenship arising from the fact that Cyprus was a British possession at the time of his father’s birth. On 12 August 2017, one or more journalists made inquiries of Senator Xenophon’s office as to whether Senator Xenophon was a British citizen. As will appear, Senator Xenophon was a "British overseas citizen" ("BOC") at the date of his nomination for election as a senator for South Australia. On 25 August 2017, Senator Xenophon signed an application to renounce his British overseas citizenship. On 31 August 2017, the United Kingdom Home Office informed Senator Xenophon that he ceased to be a BOC on 30 August 2017.
  56. The issue is whether as a BOC Senator Xenophon was incapable of being chosen as a senator because he was "a subject or a citizen of a foreign power" or a person "entitled to the rights or privileges of a subject or a citizen of a foreign power" for the purposes of s 44(i) of the Constitution. The answer is that Senator Xenophon was not disqualified under s 44(i). To explain why that is so it is necessary to describe the incidents of British overseas citizenship. These incidents, and the circumstances in which Senator Xenophon came to acquire the status of BOC under United Kingdom law, are explained in a further report by Mr Laurie Fransman QC.
  57. As has been noted, before 1949, the principal form of British nationality was British subject status, which generally was acquired by virtue of a sufficiently close connection with the Crown’s dominions. In the period 1 January 1949 to 31 December 1982 under the BNA 1948, the principal form of British nationality was citizenship of the United Kingdom and colonies. Generally, this status was acquired by virtue of a sufficiently close connection with the United Kingdom and the remaining British colonies. Citizens of the United Kingdom and colonies were not subject to United Kingdom immigration control at the start of the period, although Mr Fransman explains that some became subject to immigration control from 1962. Under the IA 1971, which came into force on 1 January 1973, only a citizen of the United Kingdom and colonies who had the right of abode in the United Kingdom could continue to enter the United Kingdom freely.
  58. From 1 January 1983 to date, British nationality law has been principally governed by the BNA 1981, which created three forms of citizenship: British citizenship; British dependent territories citizenship (later renamed British overseas territories citizenship); and British overseas citizenship. All persons who were citizens of the United Kingdom and colonies were reclassified on the commencement of the BNA 1981 within one of the three categories. Generally, those reclassified as British citizens were persons who immediately prior to the commencement of the BNA 1981 were citizens of the United Kingdom and colonies with the right of abode in the United Kingdom. Citizens of the United Kingdom and colonies without the right of abode became British dependent territories citizens if their citizenship was derived from connection with a place which remained a British dependent territory. Remaining citizens of the United Kingdom and colonies without the right of abode were automatically reclassified as BOCs. BOCs were persons who prior to the BNA 1981 were citizens of the United Kingdom and colonies by virtue of a connection with a place that had been a British colony but which had attained independence.
  59. The island of Cyprus was annexed by Britain in 1914 and remained a British possession in 1931 when Senator Xenophon’s father was born. Senator Xenophon’s father was born within the King’s dominions and allegiance and was deemed to be a natural born British subject[69]. On commencement of the BNA 1948, Senator Xenophon’s father was immediately reclassified as a citizen of the United Kingdom and colonies otherwise than by descent[70]. The father’s status as a citizen of the United Kingdom and colonies without the right of abode was unaffected by his naturalisation as an Australian citizen.

    [69] British Nationality and Status of Aliens Act 1914 (UK), s 1(1)(a). [70] British Nationality Act 1948 (UK), s 12(1)(a).


  60. Arrangements with respect to nationality were agreed within the framework of the Treaty Concerning the Establishment of the Republic of Cyprus entered on 16 August 1960. Annex D to the treaty, which sets out the arrangements, has the force of law in the United Kingdom by virtue of its inclusion as a Schedule to the British Nationality (Cyprus) Order 1960[71]. Applying the provisions of this Order to Senator Xenophon’s father, Mr Fransman advises that the father did not cease to be a citizen of the United Kingdom and colonies otherwise than by descent when Cyprus became independent because he was not ordinarily resident in Cyprus in the five years prior to 16 August 1960. Senator Xenophon’s father did not have the right of abode in the United Kingdom under the IA 1971 or at any time before 1983, when British nationality law was again revised. On the commencement of the BNA 1981, Senator Xenophon’s father was automatically reclassified as a BOC.

    [71] SI 1960/2215.


  61. At the time of Senator Xenophon’s birth in 1959, for the purposes of British nationality law, Australia was an independent Commonwealth country. Under the BNA 1948, citizenship of the United Kingdom and colonies passed automatically to the legitimate child of a father who was a citizen of the United Kingdom and colonies otherwise than by descent[72]. Therefore, Senator Xenophon became a citizen of the United Kingdom and colonies by descent at birth. Senator Xenophon did not have the right of abode in the United Kingdom under the IA 1971, when that Act came into force on 1 January 1973, and he did not acquire that right after that date. On 1 January 1983, as a citizen of the United Kingdom and colonies without the right of abode in the United Kingdom and without a specified connection with a territory which on that date remained a colony, Senator Xenophon was automatically reclassified as a BOC.

    [72] British Nationality Act 1948 (UK), s 5(1).


  62. Senator Xenophon has not been issued with a BOC passport and has never received British consular protection or other consular services.
  63. There is no question that Senator Xenophon was a BOC at the date he nominated for election as a senator for South Australia. While under domestic law British overseas citizenship is treated as a form of British nationality, Mr Fransman explains that it is a residuary form of nationality that differs from British citizenship in important respects: importantly, a BOC does not have the right of abode in the United Kingdom. The right of abode includes the right to enter and to reside in the country of nationality. As Mr Fransman observes, the right of abode is one of the main characteristics of a national under international law.
  64. In this regard, unlike a British citizen, a BOC may only enter the United Kingdom by satisfying the requirements of immigration control. It appears that in 2002 British citizenship was extended to include those BOCs who did not possess other citizenship. The extension did not apply to Senator Xenophon, who has at all times possessed Australian citizenship. Senator Xenophon’s status, until he renounced it, was that of a BOC having no right of abode in the United Kingdom.
  65. A further respect in which Mr Fransman states that the incidents, privileges and obligations of a BOC differ from those of a British citizen is in the nature of the duty of loyalty: a person who is registered as a BOC is not required to pledge loyalty to the United Kingdom. This is by way of contrast with the pledge that is required of a person who is registered as a British citizen. Mr Fransman considers that a BOC does not owe loyalty to the United Kingdom per se but that he or she does owe loyalty or allegiance to Her Majesty the Queen. He does not express a concluded view on whether the allegiance is owed to Her Majesty at large or to Her Majesty in right of the United Kingdom, although he inclines to the latter view. The position with respect to Senator Xenophon is less clear in light of a change in practice. Mr Fransman assumes that the duty of loyalty of a person who became a BOC by reclassification on 1 January 1983, as Senator Xenophon did, is the same as the duty of loyalty of a person who registered as a BOC under the BNA 1981. Mr Fransman considers that, while today an Australian citizen registering as a BOC would be required to take an oath to Her Majesty in right of the United Kingdom, under previous practice this would not have been required because an Australian was already a citizen of a country of which the Queen was Head of State. While the date of the change in practice is not stated, as at the date Senator Xenophon was reclassified it appears that had he applied to be registered as a BOC he would not have been required to take an oath of allegiance to Her Majesty the Queen in right of the United Kingdom. In the event, Senator Xenophon has never applied to be registered as a BOC, nor has he sworn any oath of loyalty or allegiance as a BOC.
  66. To observe that British overseas citizenship is a juridical relationship between the individual and the United Kingdom, as Mr Fransman describes it, is not to conclude that it is a relationship which for the purposes of s 44(i) renders the BOC a citizen of a foreign power. No party contended that the fact that the foreign power designates a status as that of "citizen" is determinative without consideration of the rights, privileges and obligations conferred under the law of the foreign power. The status of BOC distinctly does not confer the rights or privileges of a citizen as that term is generally understood: a BOC does not have the right to enter or reside in the United Kingdom. Critically, taking into account the purpose of s 44(i), which is to ensure that members of the Parliament do not have split allegiance, it does not appear that Senator Xenophon’s status as a BOC entailed any reciprocal obligation of allegiance to the United Kingdom per se or to Her Majesty the Queen in right of the United Kingdom.
  67. For the purposes of s 44(i), Senator Xenophon was not a subject or a citizen of the United Kingdom at the date of his nomination and election as a senator. Nor was he entitled to the rights and privileges of a subject or citizen of the United Kingdom. Accordingly, there is no vacancy in the representation of South Australia in the Senate for the place for which Senator Xenophon was returned. Filling the vacancies
  68. On the proper construction of s 44(i), it operated to render Senator Nash, Senator Roberts, Mr Ludlam, Ms Waters and Mr Joyce MP incapable of being chosen at the 2016 election.
  69. In each of the references concerning Senators Nash and Roberts, and Ms Waters and Mr Ludlam, the question arises as to the order that should be made to fill the resulting vacancy in the Senate.
  70. In this regard, it was not suggested that the taking of a further poll was necessary; and there is no reason to suppose that a special count of the ballots would "result in a distortion of the voters’ real intentions"[73] rather than a reflection of "the true legal intent of the voters so far as it is consistent with the Constitution and the [Commonwealth Electoral Act]"[74]. Accordingly, in each of those cases, votes cast "above the line" in favour of the party that nominated the candidate should be counted in favour of the next candidate on that party’s list.

    [73] Sykes v Cleary (1992) 176 CLR 77 at 102. See also Free v Kelly (1996) 185 CLR 296 at 302 304; [1996] HCA 42. [74] In re Wood (1988) 167 CLR 145 at 166.


  71. In the reference concerning Mr Joyce MP, it was common ground, and consistent with authority[75], that in the event that Mr Joyce MP was incapable of being chosen as a member of the House of Representatives, the election of Mr Joyce MP was void, and a by-election must be held in order to elect the member for New England.

    [75] Sykes v Cleary (1992) 176 CLR 77 at 102, 108, 130 131, 132; Free v Kelly (1996) 185 CLR 296 at 303 304. Cf In re Wood (1988) 167 CLR 145 at 165 166.


    Conclusions

  72. In the reference concerning Senator Canavan, the questions should be answered as follows: (a) There is no vacancy by reason of s 44(i) of the Constitution in the representation of Queensland in the Senate for the place for which Senator the Hon Matthew Canavan was returned. (b) Does not arise. (c) No further order is required. (d) No further order is required.
  73. In the reference concerning Mr Ludlam, the questions should be answered as follows: (a) There is a vacancy by reason of s 44(i) of the Constitution in the representation of Western Australia in the Senate for the place for which Mr Scott Ludlam was returned. (b) The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice. (c) Does not arise. (d) Unnecessary to answer.
  74. In the reference concerning Ms Waters, the questions should be answered as follows: (a) There is a vacancy by reason of s 44(i) of the Constitution in the representation of Queensland in the Senate for the place for which Ms Larissa Waters was returned. (b) The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice. (c) Does not arise. (d) Unnecessary to answer.
  75. In the reference concerning Senator Roberts, the questions should be answered as follows: (a) There is a vacancy by reason of s 44(i) of the Constitution in the representation of Queensland in the Senate for the place for which Senator Malcolm Roberts was returned. (b) The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice. (c) Unnecessary to answer. (d) Unnecessary to answer.
  76. In the reference concerning Mr Joyce MP, the questions should be answered as follows: (a) By reason of s 44(i) of the Constitution, the place of the Member for New England, the Hon Barnaby Joyce MP, is vacant. (b) There should be a by-election for the election of the Member for New England. (c) Unnecessary to answer. (d) Unnecessary to answer.
  77. In the reference concerning Senator Nash, the questions should be answered as follows: (a) There is a vacancy by reason of s 44(i) of the Constitution in the representation of New South Wales in the Senate for the place for which Senator the Hon Fiona Nash was returned. (b) The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice. (c) Unnecessary to answer. (d) Unnecessary to answer.
  78. In the reference concerning Senator Xenophon, the questions should be answered as follows: (a) There is no vacancy by reason of s 44(i) of the Constitution in the representation of South Australia in the Senate for the place for which Senator Nick Xenophon was returned. (b) Does not arise. (c) No further order is required. (d) No further order is required.