BY ANNE TWOMEY
The High Court’s judgment in Re Gallagher caused four Members of Parliament to resign and provoked further debate about the amendment of s 44 of the Constitution. This culminated in a report by the Joint Standing Committee on Electoral Matters which recommended a referendum to repeal s 44 or alter it so that it only applies until the Parliament otherwise provides. The Government expressed unwillingness to proceed with a referendum.
This blog post considers three aspects of the judgment. First, it assesses the bitter debate about whether the Court’s judgment was inconsistent with previous authority or a continuation of it. Secondly, it considers the status of a ‘constitutional imperative’ (and the significance of placing inverted commas around the term). Thirdly, it addresses the question of what is an irremediable impediment – which is likely to be the source of future debate and litigation.
New law or revival of an old precedent?
In the wake of the High Court’s decision in Re Gallagher, a debate broke out about whether the High Court had changed course and created new law, or whether it was simply giving effect to old precedents.
In fact, the High Court clarified an ambiguity that had arisen from the judgment of Mason CJ, Toohey and McHugh JJ in Sykes v Cleary in 1992. In doing so, it had a genuine choice between two alternative views of the reasonable steps test and could legitimately have claimed that either view of the test was consistent with, and a continuation of, the 1992 precedent.
In Sykes v Cleary, their Honours noted the rule of international law that citizenship is determined according to the law of the foreign state concerned. The ambiguity then arose from the following critical passage at 107:
But, there is no reason why s 44(i) should be read as if it were intended to give unqualified effect to that rule of international law. To do so might well result in the disqualification of Australian citizens on whom there was imposed involuntarily by operation of foreign law a continuing foreign nationality, notwithstanding that they had taken reasonable steps to renounce that foreign nationality. It would be wrong to interpret the constitutional provision in such a way as to disbar an Australian citizen who had taken all reasonable steps to divest himself or herself of any conflicting allegiance.
Their Honours then went on to note that even at the time that s 44(i) was enacted, a high proportion of Australians had been born overseas. They then concluded at 107:
In that setting, it 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.
In interpreting these passages, one could take the view that the reasonable steps test only arose in the situation where foreign citizenship was imposed upon a person and could not be removed by the taking of reasonable steps. This view is supported by the judgment of Dawson J who stated at 131: ‘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’. I will call this the ‘irremediable’ view of the reasonable steps test.
Alternatively, one could interpret the later sentences in the above passage from Mason CJ, Toohey and McHugh JJ as applying so that an Australian citizen would not be disbarred from standing for Parliament as long as he or she had ‘taken all reasonable steps to divest himself or herself of any conflicting allegiance’. The focus in these sentences was the taking of the reasonable steps by the Australian citizen – not the completion of the process of renunciation by the foreign country. This test places the responsibility on the candidate to take the reasonable steps within his or her power. I will call this the ‘personal responsibility’ view.
The ‘personal responsibility’ view is supported by the fact that in Sykes v Cleary, Mason CJ, Toohey and McHugh JJ applied the reasonable steps test to the two candidates who came from Switzerland and Greece, where it was clear that citizenship could be renounced, so no issue of irremediable foreign citizenship arose. Their Honours noted at 108 that the second respondent had failed to take reasonable steps to divest himself of Swiss citizenship because he had omitted to make a demand for release which would have been automatically granted. The third respondent failed to take the reasonable step of divesting himself from Greek citizenship because he had not applied to the Greek Minister for its discharge, which would have been either automatic or a matter of discretion. In both cases their Honours focused upon the taking of steps by the respondent – not the completion of the process of renunciation by the foreign country.
It was therefore understandable that many lawyers, in advising as to the applicable test, took the ‘personal responsibility’ view of the reasonable steps test, even though that test was born from the proposition that Australian citizens should not be barred from Parliament due to involuntary subjection to dual citizenship which they could not remove.
A red flag was raised about this interpretation in Re Canavan. In that case, when the High Court referred to the reasonable steps test, it again did so in relation to circumstances where a person was unable, by reasonable steps, to renounce his or her foreign citizenship. For example, the Court stated at :
A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.
On its face, this statement asserts the ‘irremediable’ view of the reasonable steps test. Yet, those wedded to the ‘personal responsibility’ approach disconnected the first sentence from the second in the above passage. They simply applied the second sentence and turned a blind eye to its final phrase linking the test back to irremediable impediments. This can be seen in the legal advice that is attached to the citizenship declarations of Josh Wilson and Rebekha Sharkie on the parliamentary register.
While it was difficult to maintain the ‘personal responsibility’ view in the light of Re Canavan, it was not impossible. This was because the Court in Re Canavan upheld the authority of Sykes v Cleary, which in turn had applied the reasonable steps test in circumstances where there was no irremediable impediment to renunciation of foreign citizenship. Hence, there were still some mixed messages, although prudence would suggest that it was safer to rely on the ‘irremediable’ view.
In Re Gallagher, the High Court finally made absolutely clear that the reasonable steps test only applies where an Australian citizen would otherwise be irremediably prevented from standing for Parliament. Kiefel CJ, Bell, Keane, Nettle and Gordon JJ stated that the second sentence in the above passage from Re Canavan could not be read alone. Their Honours stated at : ‘It is not sufficient that a person in [Gallagher’s] position has taken all steps reasonably required by the foreign law which are within her or his power for the exception to s 44(i) to apply’. It must also be the case that the foreign law ‘operates to irremediably prevent the person’s participation, as described in the preceding sentence.’ As Gallagher could not show that British law provided an irremediable impediment to her renunciation of her foreign citizenship, and her renunciation had not taken effect prior to her nomination, she was found to have been disqualified at the time of the last election and therefore not validly elected.
What is the status of a ‘constitutional imperative’?
In Re Gallagher, while the Court unanimously reached the conclusion that Gallagher was invalidly elected, Justices Gageler and Edelman wrote separately. One of the challenges is to identify how they differed from the joint judgment and what spurred them to write. Both seemed to be more concerned about what is classed as an irremediable impediment, which is discussed in the third part of this blog post, below. However, there is also an interesting stylistic difference. Both Gageler J and Edelman J used inverted commas around the term ‘constitutional imperative’, perhaps in recognition of its artificiality or even as a mark of scepticism about the use of the term. The ‘constitutional imperative’ as a term of art in constitutional law, is of relatively recent provenance, although its first use as a description was by Barwick CJ in the 1977 case of Attorney-General (NSW); Ex Rel McKellar v Commonwealth.
In Re Gallagher, Gageler J stated at  that: ‘The “constitutional imperative” recognised in Re Canavan is an implied exception to the operation of that disqualification [in s 44(i) of the Constitution].’ He then proceeded through the rest of his judgment to refer to the ‘implied exception’, spurning the terminology of ‘constitutional imperative’.
Edelman J, at  referred to ‘the constitutional implication that was described in Re Canavan as a “constitutional imperative”.’ At , he went further, linking this term to its brethren derived from the voting cases and those concerning the implied freedom of political communication. He said:
In Re Canavan, this constitutional implication was described as a “constitutional imperative”. Like the “constitutional imperative” said to underlie the freedom to communicate on political matters or the freedom to vote, the rationale of the implication is to maintain the political institution of representative government.
Notable in this quote is the reference to the constitutional imperative being ‘said to underlie’, rather than ‘underlying’. A degree of scepticism and remoteness from the argument appears to be indicated.
The joint judgment, on the other hand, did not feel the need to distinguish the term constitutional imperative with inverted commas. Their Honours referred at  to s 44(i) being ‘subject to an implicit qualification which arises from the constitutional imperative underlying it’. At  we find out that the constitutional imperative has a constitutional context which narrows its focus. The constitutional imperative also has a ‘concern’, which is ‘that an Australian citizen might forever be unable to participate in elections because a foreign law prevents that person from freeing himself or herself of the foreign citizenship’. At  we are told that the constitutional imperative imposes an ‘implicit qualification’ on s 44(i). As there are limits to the making of ‘constitutional implications’, that qualification ‘can extend only so far as is necessary to give effect to the textual and structural features which support it’. At  the qualification is expressed as an ‘exception’ to the application of s 44(i). At  the exception arises where two circumstances are present – the first, arising from the constitutional imperative, is that the foreign law operates irremediably to prevent an Australian citizen from electoral participation as a candidate and the second is that he or she has taken all reasonable steps to renounce the foreign citizenship.
This combination of exceptions, qualifications, implications, concerns, contexts and constitutional imperatives is enough to make most law students’ heads swim. In the hierarchy, it appears that there is an exception (which requires the satisfaction of two elements), that amounts to a qualification, which is implicit and therefore a constitutional implication that must be anchored in the text and structure of the Constitution. This implicit qualification arises from an underlying constitutional imperative, which is narrowed by its constitutional context and driven by a constitutional concern.
Constitutional lawyers are familiar with constitutional implications operating as a limitation on legislative or executive power. In this case, however, it is a limitation on a self-activating prohibition in the Constitution. The Court is effectively instructing itself in how to interpret s 44(i), rather than imposing limits on the exercise of power by the other arms of government – the legislature and the executive. Perhaps the use of a term such as ‘constitutional imperative’, to describe what is essentially the process of constitutional interpretation undertaken by a court, is intended to cloak the process in a mantle of apparent objectivity, making it less vulnerable to political attack than a mere interpretative choice. In any case, it does open up a new field for constitutional scholars to explore – what a constitutional imperative is, how it is identified and how it operates.
What amounts to an irremediable impediment to election?
In Re Gallagher, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ accepted at - the Commonwealth’s argument that ‘the exception to s 44(i) does not apply to British law because that law does not either in its terms or in its operation render it impossible or not reasonably possible to renounce British citizenship’. They rejected the submission by Gallagher that the discretion of the Secretary of State to choose the time and manner in which British citizenship would be terminated was an irremediable impediment.
Their Honours explained at - that simply requiring that particular steps be taken to renounce citizenship is not sufficient to amount to an irremediable impediment. The foreign law ‘must present something of an insurmountable obstacle, such as a requirement with which compliance is not possible’. They noted at  the example, given in Re Canavan, where compliance with the necessary steps ‘was not possible because it put the person at risk’. This suggests that the word ‘possible’ does not mean physically capable of fulfilment, as a person could always fulfil the requirement by putting themselves at risk. Instead, some level of unreasonable burden on the person seems to be required to satisfy the Court that there is an irremediable impediment.
Their Honours were clear at , however, that a law that required a person to ‘apply for the favourable exercise of a discretion to permit renunciation’ of foreign citizenship would not amount to an irremediable impediment, because it ‘is reasonably open to the person’ to take this step and it therefore ‘must be taken’. This raises the question of whether the irremediable impediment must apply to the taking of the legal steps for renunciation (eg a required step that puts the person at risk) or to the actual termination of the citizenship itself (eg discretion to terminate citizenship may be refused or not acted upon, even though the steps required by the applicant were easily completed).
What if the process for renunciation requires an application to be made to the President of the foreign country, who may exercise a personal discretion, but Presidents from a particular political party have a policy of not acting on such requests? Does the person have to wait for an election and change of President in that country so that his or her application can be processed? At what point does delay in the exercise of discretion become an irremediable impediment, especially if there is some prospect that in the future the situation may change? Their Honours stated at  that the exception to s 44(i) ‘is not engaged by a foreign law which presents an obstacle to a particular individual being able to nominate for a particular election’. The Court did not consider that the timing issue in relation to the renunciation of British citizenship, even when the delay could take ‘in excess of six months’ , was sufficient to support an exception. But the period may be much longer than that in other countries, leading to the question of how long is too long.
The judgments of Gageler J and Edelman J seemed to be more concerned with this question. Justice Gageler observed that an Australian citizen who has taken all reasonable steps within his or her power to renounce foreign citizenship remains disqualified under s 44(i) ‘for so long as the process of renunciation provided for by the law of that country simply remains incomplete’. He explained at :
Retention of foreign citizenship can hardly be said to be irremediable while it remains in the process of being remedied. The implied exception cannot be engaged unless and until such time as such process of renunciation as is provided for by the law of the other country can be characterised for practical purposes as a process that will not permit the person to renounce the foreign citizenship by taking reasonable steps, requiring if not that an impasse has actually occurred then at least that an impasse can be confidently predicted.
One thing that can be confidently predicted is that there will be future litigation about the point at which an impasse can be confidently predicted. But it is also clear from Gageler J’s judgment that the difficulty in predicting election dates at the Commonwealth level is irrelevant to the application of s 44(i). Gageler J imposed responsibility on candidates at  to ensure that they have completed the termination of any foreign citizenship before nomination. He noted that this will demand ‘a degree of vigilance on the part of a potential candidate not simply as to the taking of available remedial action but also as to the timing’.
Edelman J, at - indicated a potentially wider field of exceptions by pointing to the exceptions concerning the recognition of foreign law where it is contrary to public policy derived from the common law and the Constitution. He described these as ‘exorbitant foreign laws’, picking up the private international law terminology of exorbitant jurisdiction. This was a category of law that appeared to concern the Court during argument in Re Canavan, but was not reflected in its judgment.
Edelman J raised doubt at  as to whether a foreign law that imposed an irremediable impediment to the renunciation of citizenship would be recognised by Australian law. Nonetheless, if it was recognised, the exception to s 44(i) would arise. His Honour accepted at  that ‘irremediable’ is not confined to circumstances of ‘permanent impossibility’. It includes laws that impose ‘unreasonable obstacles upon the ability of a person to renounce his or her foreign citizenship’. He added that ‘unreasonableness’ is a relative term. He did not regard the mere exercise of discretion by foreign officials as falling within the category of ‘unreasonable’, but he did accept at  that a requirement to have completed military service, while the foreign country is engaged in a war, would be ‘unreasonable’. He also observed, without deciding, at  that a law might be unreasonable in its practical operation if processing of a renunciation application had not occurred after three years or where a foreign official unreasonably refuses to exercise a discretion.
The High Court in Re Gallagher has clarified the test applicable to candidates and the timing of its application. This will provide certainty to most potential candidates. But for some that come from countries where the steps required for renunciation are neither unreasonable nor impossible to meet, but the bureaucratic discretions and delays are significantly burdensome, there will be greater difficulty in qualifying to stand for the Commonwealth Parliament, with the potential for further litigation on the subject. This may make election to State Parliaments, which are not subject to the same constraints, a more attractive option.
While in the short-term, certainty was served by this judgment, in the longer-term it adds to the existing uncertainty as to the role of ‘constitutional imperatives’, their relationship with constitutional implications, how they are to be identified and how the scope of the imperative is to be determined. This is a large conceptual issue which affects constitutional interpretation generally and has so far slipped by with little comment. When the political dust has settled from this controversy, it may be that the greater significance of Re Gallagher is its reinforcement of a role for constitutional imperatives in constitutional interpretation and its opening up of questions about the nature and extent of that role.
Anne Twomey is a Professor of Constitutional Law at the University of Sydney.
Suggested citation: Anne Twomey, ‘Re Gallagher: Inconsistency, Imperatives and Irremediable Impediments’ on AUSPUBLAW (28 May 2018) <https://auspublaw.org/2018/05/re-gallagher-inconsistency-imperatives-and-irremediable-impediments/>