Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
12.
"act" was obviously drawn from the Imperial and colonial precedents. But the drafting history, beginning in 1891, cannot be treated as indicative of an intention on the part of the framers to cleave particularly closely to those precedents. The precedents were confined to vacating the place of a parliamentarian. Disqualification from being chosen as a parliamentarian was an innovation. 36
There is another aspect of the historical context in which the Constitution was drafted which affirmatively supports the wider purpose of s 44(i) which its language suggests. The addition of disqualification under s 44(i) to qualification under s 34 would, at the time of federation, have been redundant unless disqualification under s 44(i) was capable of applying to a person qualified under s 34. Section 34(ii) required, in 1901 and until the Parliament otherwise provided, that a senator or member of the House of Representatives "must be a subject of the Queen". By operation of the Naturalization Act 1870 (Imp), a subject of the Queen who by voluntary act became a subject or citizen of a foreign state automatically ceased to be a subject of the Queen and was "from and after" that time to "be regarded as an alien"[1]. A person who by voluntary act had become a subject or citizen of a foreign state was therefore not qualified under s 34(ii). For the second limb of s 44(i) to add anything to s 34(ii), that limb needed to extend beyond acquisition of the status of a subject or citizen of a foreign power by some voluntary act.
Subject or citizen – the role of foreign law
Whether a person has the status of a subject or a citizen of a foreign power necessarily depends upon the law of the foreign power. That is so because it is only the law of the foreign power that can be the source of the status of citizenship or of the rights and duties involved in that status. In Sykes v Cleary, Mason CJ, Toohey and McHugh JJ said that "[a]t common law, the question of whether a person is a citizen or national of a particular foreign State is determined according to the law of that foreign State"[2], the common law rule being, in part, a recognition of the principle of international law that "it is for every sovereign State … to settle by its own legislation the rules relating to the
