Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
7.
comma followed by the disjunctive "or" at the end of the first limb but not within the second limb.
For present purposes, however, little turns upon this difference between the analysis of Brennan J in Sykes v Cleary and that of the amicus; indeed, Brennan J dealt with his "second and third categories" together[1]. Each approach highlights the distinction expressly drawn in s 44(i) between a voluntary act of allegiance on the part of the person concerned on the one hand, and a state of affairs existing under foreign law, being the status of subjecthood or citizenship or the existence of the rights or privileges of subjecthood or citizenship, on the other. For the sake of clarity, these reasons will use the two-limb classification adopted by the amicus.
The purpose of s 44(i)
In Sykes v Cleary, the plurality, comprising Mason CJ, Toohey and McHugh JJ, said that s 44(i) was adopted to ensure "that members of Parliament did not have a split allegiance"[2]. Brennan J explained that the purpose of s 44(i) "is to ensure that no candidate, senator or member of the House of Representatives owes allegiance or obedience to a foreign power or adheres to a foreign power."[3] Deane J said that the "whole purpose" of s 44(i) is to "prevent persons with foreign loyalties or obligations from being members of the Australian Parliament."[4]
It is evident that the first limb of s 44(i) pursues this purpose by looking to the conduct of the person concerned. The second limb of s 44(i) does not look to conduct manifesting an actual split in the allegiance of the person concerned or
the person's subjective feelings of allegiance. On the contrary, it operates to
