19.
rationale of the implication is to maintain the political institution of representative government. However, just as there are significant, valid limitations that can be placed upon the ability to participate in representative government despite these implied freedoms, so too the implication which maintains the political institution of representative government in the context of s 44(i) cannot displace or ignore all significant limitations or burdens imposed by a recognised foreign law.
58 Significant limitations that are placed upon a person's ability to participate in representative government by nomination for and election to the Commonwealth Parliament are recognised in the Constitution. The limitations include ss 16, 34, 43, 44 and 45, and any valid law enacted by the Commonwealth Parliament under s 51(xxxvi)[1]. These qualifications show that there is no absolute right for every citizen to participate in representative government by nomination for and election to the Commonwealth Parliament. The existence of these express limitations thus militates powerfully against an implication in absolute terms that denies application to any foreign law that has the effect of constraining the same participation. Instead, the constitutional implication is narrowly tailored to ensure that a foreign law does not stultify a person's qualified ability to participate. It requires only that "an Australian citizen not be irremediably prevented by foreign law from participation in representative government"[2]. In that way the concrete implication is confined to that which is truly necessary to achieve the more abstract constitutional purpose[3].
59 The reference in the rationale for the implication to an "irremediable" prevention of participation includes circumstances where the foreign law would make participation permanently impossible. Hence, on the perhaps contestable assumption that the foreign citizenship law would be recognised by Australian law, one potential application of this constitutional imperative would be to a foreign citizenship law that provides no legal mechanism for renunciation of foreign citizenship[4]. Of course, although the constitutional imperative would mean that citizenship under such a foreign law would not disqualify a person under s 44(i), a person who would otherwise have been a citizen under that
- ↑ See, eg, Commonwealth Electoral Act 1918 (Cth), ss 163, 164.
- ↑ Re Canavan (2017) 91 ALJR 1209 at 1223 [72], see also at 1219 [44]; 349 ALR 534 at 551, see also at 545.
- ↑ Goldsworthy, "Functions, Purposes and Values in Constitutional Interpretation", in Dixon (ed), Australian Constitutional Values, (2018) 43 at 56, quoting Hand, The Bill of Rights, (1958) at 29.
- ↑ Sykes v Cleary (1992) 176 CLR 77 at 132.
