Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
9.
British North America Act 1867 (Imp)[1] and as substantially replicated in the constitutions of each of the Australian colonies which were to become States[2].
Within a week of the first official draft, following the voyage of the Lucinda, the two clauses were recast to take the form in which the predecessors of ss 44(i) and 45(i) came to be adopted without substantial debate in the final draft of the Constitution Bill to emerge from the National Australasian Convention in 1891. The clauses as so recast each applied to both senators and members of the House of Representatives. Departing from the Imperial and colonial precedents, they were no longer confined to vacating places of parliamentarians by reference to acts done by them after election. They extended also to disqualifying for election as parliamentarians persons who had done any of the same acts before election.
The first clause, the predecessor of s 44(i), provided[3]:
"Any person … [w]ho has taken an oath or made a declaration or acknowledgment of allegiance, obedience, or adherence to a Foreign Power, or has done any act whereby he has become a subject or 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 Member of the House of Representatives until the disability is removed by a grant of a discharge … or otherwise."
- ↑ 30 Vict c 3, s 31(2).
- ↑ Constitution Act 1854 (Tas) (18 Vict No 17), ss 13, 24; New South Wales Constitution Act 1855 (Imp) (18 & 19 Vict c 54), Sched 1, ss 5, 26; Victoria Constitution Act 1855 (Imp) (18 & 19 Vict c 55), Sched 1, s 24; Constitution Act 1855–6 (SA), ss 12, 25; Constitution Act 1867 (Q) (31 Vict No 38), s 23; Western Australia Constitution Act 1890 (Imp) (53 & 54 Vict c 26), Sched 1, s 29(3).
- ↑ Official Report of the National Australasian Convention Debates, (Sydney), 9 April 1891 at 950, cl 46.
