Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
37.
is common ground that Senator Xenophon is not a citizen of either Greece or Cyprus.
Senator Xenophon was subsequently re-elected to the Australian Senate on 7 September 2013 and 2 July 2016. At no time prior to either election did it cross his mind that he might have some form of British citizenship arising from the fact that Cyprus was a British possession at the time of his father's birth. On 12 August 2017, one or more journalists made inquiries of Senator Xenophon's office as to whether Senator Xenophon was a British citizen. As will appear, Senator Xenophon was a "British overseas citizen" ("BOC") at the date of his nomination for election as a senator for South Australia. On 25 August 2017, Senator Xenophon signed an application to renounce his British overseas citizenship. On 31 August 2017, the United Kingdom Home Office informed Senator Xenophon that he ceased to be a BOC on 30 August 2017.
The issue is whether as a BOC Senator Xenophon was incapable of being chosen as a senator because he was "a subject or a citizen of a foreign power" or a person "entitled to the rights or privileges of a subject or a citizen of a foreign power" for the purposes of s 44(i) of the Constitution. The answer is that Senator Xenophon was not disqualified under s 44(i). To explain why that is so it is necessary to describe the incidents of British overseas citizenship. These incidents, and the circumstances in which Senator Xenophon came to acquire the status of BOC under United Kingdom law, are explained in a further report by Mr Laurie Fransman QC.
As has been noted, before 1949, the principal form of British nationality was British subject status, which generally was acquired by virtue of a sufficiently close connection with the Crown's dominions. In the period 1 January 1949 to 31 December 1982 under the BNA 1948, the principal form of British nationality was citizenship of the United Kingdom and colonies. Generally, this status was acquired by virtue of a sufficiently close connection with the United Kingdom and the remaining British colonies. Citizens of the United Kingdom and colonies were not subject to United Kingdom immigration control at the start of the period, although Mr Fransman explains that some became subject to immigration control from 1962. Under the IA 1971, which came into force on 1 January 1973, only a citizen of the United Kingdom and colonies who had the right of abode in the United Kingdom could continue to enter the United Kingdom freely.
