Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
17.
argument that a "qualifying element … must be read into the second limb of s 44(i)"[1]. His Honour referred to the qualifying element in relation to a naturalised Australian citizen[2]:
"whose origins lay in, or who has had some past association with, some foreign country which asserts an entitlement to refuse to allow or recognize his or her genuine and unconditional renunciation of past allegiance or citizenship. Accordingly … the qualifying element which must be read into the second limb of s 44(i) extends not only to the acquisition of the disqualifying relationship by a person who is already an Australian citizen but also to the retention of that relationship by a person who has subsequently become an Australian citizen. A person who becomes an Australian citizen will not be within the second limb of s 44(i) if he or she has done all that can reasonably be expected of him or her to extinguish any former relationship with a foreign country to the extent that it involves the status, rights or privileges referred to in the sub-section."
Deane J concluded that Mr Kardamitsis, who had publicly renounced his allegiance to any country other than Australia, had "done all that he could reasonably be expected to do for the purposes of the Constitution and laws of this country to renounce and extinguish his Greek nationality and any rights or privileges flowing from it."[3]
The approach taken by Deane J draws no support from the text and structure of s 44(i): indeed, Deane J used the first limb of the provision to alter the ordinary and natural meaning of the second. Not only does that approach alter the plain meaning of the second limb of s 44(i), it renders that limb otiose because, so understood, it adds nothing to the first limb in terms of the practical pursuit of the purpose of s 44(i).
In addition, the approach of Deane J places naturalised Australian citizens in a position of disadvantage relative to natural-born Australian citizens. A majority in Sykes v Cleary did not countenance such a distinction. Mason CJ,
