6.
Senator Gallagher's argument
19 It is Senator Gallagher's contention that by 20 April 2016, when she submitted her declaration of renunciation, or at the latest 6 May 2016, when her credit card was debited with the required fee, she had taken every step required by s 12(1) of the British Nationality Act 1981 that was within her power to secure a release of her British citizenship. The reason why she did not cease to be a British citizen before the date of her nomination lay in matters outside her control, namely the time and manner in which the Secretary of State chose to perform the duty under s 12(1). It is submitted that the ability of the Secretary of State to choose the time and manner in which the duty was to be performed was an irremediable impediment to her participation in the 2016 election. The constitutional imperative referred to in Re Canavan was therefore engaged, entitling her to participate in the election. This is so irrespective of the differences of opinion expressed by the experts on British immigration law whom the parties had called as witnesses.
20 The area of disagreement between the witnesses called by Senator Gallagher and by the Commonwealth Attorney-General to give evidence as to British citizenship law concerns whether the Secretary of State came under a duty to register Senator Gallagher's declaration of renunciation when the declaration and the information accompanying it was received. The view of the witness called by Senator Gallagher is that she did come under such a duty. It is not a view with which the witness called by the Attorney-General agrees. It is his opinion that the Secretary of State was required to be satisfied about the fact of Senator Gallagher's British citizenship and was entitled as a matter of law to refuse to register the declaration until so satisfied.
The Commonwealth Attorney-General's argument
21 The principal submission of the Commonwealth Attorney-General is that it is not enough for a candidate merely to have taken steps to renounce his or her foreign citizenship. Unless the relevant foreign law imposes an irremediable impediment to an effective renunciation, it is necessary that a candidate actually have divested himself or herself of his or her status as a foreign citizen before the commencement of the process of being chosen to which s 44(i) applies. 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. At the time of her nomination Senator Gallagher remained a foreign citizen and was incapable of being chosen.
