Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
15.
divest himself or herself of any conflicting allegiance … [Section 44(i)] … could scarcely have been intended to disqualify an Australian citizen for election to Parliament on account of his or her continuing to possess a foreign nationality, notwithstanding that he or she had taken reasonable steps to renounce that nationality."
It is convenient to note here that their Honours were not suggesting that a candidate who could be said to have made a reasonable effort to comply with s 44(i) was thereby exempt from compliance. As Brennan J explained[1]:
"It is not sufficient … for a person holding dual citizenship to make a unilateral declaration renouncing foreign citizenship when some further step can reasonably be taken which will be effective under the relevant foreign law to release that person from the duty of allegiance or obedience. So long as that duty remains under the foreign law, its enforcement – perhaps extending to foreign military service – is a threatened impediment to the giving of unqualified allegiance to Australia. It is only after all reasonable steps have been taken under the relevant foreign law to renounce the status, rights and privileges carrying the duty of allegiance or obedience and to obtain a release from that duty that it is possible to say that the purpose of s 44(i) would not be fulfilled by recognition of the foreign law."
The focus of concern of the majority in Sykes v Cleary is upon the impediment posed by foreign law to an Australian citizen securing a release from foreign citizenship notwithstanding reasonable steps on his or her part to sever the foreign attachment. As Dawson J said[2]:
"I agree with Mason CJ, Toohey and McHugh JJ, and with Brennan J, that s 44(i) should not be given a construction that would unreasonably result in some Australian citizens being irremediably incapable of being elected to either House of the Commonwealth Parliament."
