Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
11.
Convention at the Sydney session[1]. The drafting amendments were made after receipt by the drafting committee of confidential memoranda from the Colonial Office commenting on the Constitution Bill in the form approved by the Convention at the Adelaide session. One of those memoranda had raised as a query, in relation to the clause which was the predecessor of s 44(i), "[s]hould not some provision be made for a person who, after he has acknowledged allegiance to a foreign power, has returned to his old allegiance and made himself again a British subject?"[2] Whether or not it is appropriate to have regard to the confidential Colonial Office memorandum, the extent of the redrafting of the predecessors of both ss 44(i) and 45(i) which occurred in the period between the Sydney session and the Melbourne session is such that it cannot adequately be explained as doing no more than responding to that query.
When, a few days later, the Australasian Federal Convention came to consider the redrafted clauses in committee of the whole, the redraft of the clause that was to become s 44(i) was agreed to without discussion[3]. Turning to s 45(i), Mr Isaacs relevantly commented only that "[v]ery good work ha[d] been done by the committee in the attainment of brevity"[4].
The drafting history demonstrates that the adoption of s 44(i) in its final form was uncontroversial and that the differences between the text that emerged from the Convention in 1891 and the text that emerged from the Convention in 1898 cannot be attributed to any articulated difference in the mischief sought to be addressed by the disqualification it introduced. What the drafting history fails to demonstrate is that the mischief was exhaustively identified in the earlier reference to disqualification arising as a result of an "act" done by a person whereby the person became a subject or citizen, or entitled to the rights or
privileges of a subject or citizen, of a foreign power. The earlier reference to an
- ↑ Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 4 March 1898 at 1915.
- ↑ Williams, The Australian Constitution: A Documentary History, (2005) at 727
- ↑ Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 7 March 1898 at 1931–1942.
- ↑ Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 7 March 1898 at 1942.
