In terms of how that fits in with previous case law (Sykes v Cleary and Sue v Hill), the government argues that those cases should be distinguished as the candidates in question were foreign born and therefore knew that theyâd held foreign citizenship, and that in those circumstances it was on the candidates to show that theyâd taken reasonable steps to renounce that foreign citizenship:
But, in our submission, Sykes is reasonably explained on the basis that in circumstances where a person undoubtedly is aware that they have possessed a status as a foreign citizen in the past, that a failure to do what is reasonable in all of the circumstances to divest oneself of that status is properly characterised as a voluntary retention of it.
Now, that does not challenge the finding about the subjective state of knowledge, but the subjective state of knowledge is not lack of knowledge of the connection; it is lack of knowledge of the enduring connection in circumstances where it necessarily follows on the finding made by the Court in Sykes that there were reasonable things that should have been done that had not been done.
I donât know how easily that sits with their submission that the actual subjective knowledge of a candidate is the key factor, since the candidates in Sykes both subjectively (but erroneously) believed that theyâd renounced their foreign citizenship through being naturalised as Australian.
Justice Gagelar did offer a lifeline on that point, though, on the basis that the dual citizen candidates considered in Sykes were unsuccessful candidates in an electorate where the successful candidate was disqualified for a different reason (for office of profit under the crown):
Mr Solicitor, there is another possible reading of Sykes, and that is, in focusing on the circumstances of Mr Kardamitsis the Court, or at least the majority, was only concerned with his status for the purposes of the by-election that they held was to occur. Â At that point, Mr Kardamitsis knew of his foreign citizenship and had not taken reasonable steps. Â So that is a possible reading of what was being discussed, rather than any focus on his historical circumstances.
The Court to absolutely seem willing to consider the possibility that it isnât as simple as dual citizenship automatically making someone disqualified - for example, Justice Gordon says:
Just stopping there though, the plurality and Justice Dawson accept because of the way in which the circumstances fall out that dual citizenship of itself is not determinative and once you start from that proposition then one has to work out what it is that brings about the disqualification. Â So both of them - both the plurality judgment and Dawson acknowledge, as they must, that even though you have dual citizenship that itself cannot be a complete answer.
However, Iâm not sure that theyâre convinced by subjective intent to obtain or retain citizenship being the key element. For example, Justices Gagaler and Edelman both noted that Senator Roberts canât really be said to have voluntarily retained his British citizenship, when heâd sent emails to try to renounce it, even though the government are submitting that Senator Roberts should be disqualified when he hasnât made reasonable efforts to renounce his British citizenship.
I can absolutely see the court taking a middle ground of looking at what a reasonable person in the position of a candidate would have known or suspected, especially when it fits with the governmentâs arguments which distinguish between natural-born Australians and naturalised Australians:
There is nothing fictitious about saying â and it being taken of a person who seeks naturalisation â that they knew of the antecedent citizenship.Â
For example, Justice Nettle points out that it seems to be a different standard for natural-born Australians and naturalised Australians to only assume that naturalised Australians should have accurate knowledge of their citizenship status:
So that is constructive for foreign-born citizens but only actual subjective for natural-born citizens.
It is true, but to take the third respondent in Sykes v Cleary, he thought honestly he had done all that was required to rid himself of his foreign citizenship, and yet you say he is to be taken as knowing that he needed to do more.Â
Justice Edelman also raises the possibility of an âobjectiveâ test based on a reasonable person in the position of the candidates:
 If one assumes that the reasonable renunciation test in Sykes v Cleary is not limited to exorbitant laws and accepts that a requirement of reasonable steps to be taken for renunciation would not include unreasonable steps but those which are believed to be sufficient, why would not the concomitant of that be a requirement of reasonable knowledge and belief, rather than one of actual knowledge or belief or perhaps wilful blindness?Â
The government try to answer by drawing a distinction between a standard actual subjective belief for knowledge of citizenship and reasonableness for actions taken to renounce once one has that knowledge. Iâm not sure if that works, when the actions taken by candidates are going to play into what they subjectively believe about their citizenship status.
Itâll be interesting to watch how the judges respond when those arguing for a stricter interpretation of section 44 start making their submissions. I feel like that might give some further indication of where the court is leaning.
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