Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
8.
disqualify the candidate whether or not the candidate is, in fact, minded to act upon his or her duty of allegiance.
In the course of arguing that a candidate cannot be disqualified by the second limb of s 44(i) if he or she does not know that he or she has the status of a foreign citizen, Senior Counsel for Mr Joyce MP and Senator Nash made the rhetorical point that "[y]ou cannot heed a call that you cannot hear and you will not hear the call of another citizenship if you do not know you are a citizen of that other country." The answer to that point is that, as a matter of the ordinary meaning of the second limb of s 44(i), proof of actual allegiance as a state of mind is not required. Rather, as Brennan J explained in Sykes v Cleary, the second limb is concerned with the existence of a duty to a foreign power as an aspect of the status of citizenship[1].
The drafting history of s 44(i)
The drafting history of s 44(i) does not support identification of a narrower purpose sufficient to constrain the ordinary and natural meaning of the language ultimately chosen.
The first official draft of the Constitution Bill prepared for the National Australasian Convention in 1891 contained two identical clauses which provided respectively that the place of a senator and a member of the House of Representatives "shall become vacant … [i]f he takes an oath or makes a declaration or acknowledgement of allegiance, obedience, or adherence to a Foreign Power, or does any act whereby he becomes a subject or citizen, or entitled to the rights or privileges of a subject or citizen of a Foreign Power"[2]. The language was derived from the British North America Act 1840 (Imp)[3] as replicated in the New Zealand Constitution Act 1852 (Imp)[4] and the
