17.
more exclusively than [the general] principle allows, and must, on the other hand, leave the foreign law unapplied"[1].
53 The general rule, and exceptions, have been applied to foreign laws concerning citizenship[2]. In Sykes v Cleary[3], Brennan J effectively treated the question of recognition, ie the general rule and the exceptions, as an anterior question, to be asked before considering the application of s 44(i). His Honour said that whether a person was a subject or citizen of a foreign power was a question for the law of that foreign power, subject to exceptions recognised by international law as well as exceptions sourced in public policy derived from both common law and the Constitution[4]. Similarly, in Sykes v Cleary[5] and in Sue v Hill[6], Gaudron J relied upon common law authorities[7] in the context of discussion of circumstances when an Australian court might not apply a foreign law.
54 Several examples of non-recognition of a foreign law as a result of this anterior question were given by Brennan J in Sykes v Cleary[8]. One of those was described as "an extreme example, if a foreign power were mischievously to confer its nationality on members of the Parliament so as to disqualify them all". In cases of such exorbitant foreign laws both public policy and international law require that the foreign law not be recognised. The test for exorbitancy, as expressed by Brennan J[9], borrowing from Lord Cross of Chelsea in
- ↑ Savigny and Guthrie, A Treatise on the Conflict of Laws, 2nd ed (rev) (1880) at 76.
- ↑ As to recognition in international law of the possibility of exceptions in relation to citizenship laws see Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4 at 20–21.
- ↑ (1992) 176 CLR 77; [1992] HCA 60.
- ↑ (1992) 176 CLR 77 at 112.
- ↑ (1992) 176 CLR 77 at 135–136.
- ↑ (1999) 199 CLR 462 at 528–529 [175]; [1999] HCA 30.
- ↑ R v The Home Secretary; Ex parte L [1945] KB 7 at 10; Lowenthal v Attorney-General [1948] 1 All ER 295 at 299; Oppenheimer v Cattermole [1976] AC 249 at 277–278, 282–283.
- ↑ (1992) 176 CLR 77 at 112-113. See R v Lynch [1903] 1 KB 444; R v The Home Secretary; Ex parte L [1945] KB 7; Lowenthal v Attorney-General [1948] 1 All ER 295.
- ↑ (1992) 176 CLR 77 at 113.
