1.
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ. Section 44 of the Constitution relevantly provides:
"Any person who:
- is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; …
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives."
Section 45(i) of the Constitution provides that if a senator or a member of the House of Representatives "becomes subject to any of the disabilities mentioned in the last preceding section", his or her place "shall thereupon become vacant."
It is settled by authority, and not disputed by any party, that in s 44 the words "shall be incapable of being chosen" refer to the process of being chosen, of which nomination is an essential part[1]. Accordingly, the temporal focus for the purposes of s 44(i) is upon the date of nomination as the date on and after which s 44(i) applies until the completion of the electoral process.
The proceedings
Under the Commonwealth Electoral Act 1918 (Cth) any question respecting the qualifications of a senator or a member of the House of Representatives, or respecting a vacancy in either house of the Parliament, may be referred by resolution to the Court of Disputed Returns by the house in which the question arises[2]. Questions concerning the qualifications of six persons elected as senators at the general election for the Parliament held on 2 July 2016 have been so referred. In each case the principal question is whether by reason of
