8.
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."
26 It may be observed from this paragraph, and from earlier passages in the reasons in Re Canavan[1], that for s 44(i) to be read as subject to the exception two circumstances must be present. The first arises from the terms of the constitutional imperative. It is that a foreign law operates irremediably to prevent an Australian citizen from participation. The second is that that person has taken all steps reasonably required by the foreign law which are within his or her power to free himself or herself of the foreign nationality.
27 A foreign law will not "irremediably prevent" an Australian citizen from renouncing his or her citizenship simply by requiring that particular steps be taken to achieve it. For a foreign law to meet the description in Re Canavan and Sykes v Cleary it must present something of an insurmountable obstacle, such as a requirement with which compliance is not possible. Consistently with the approach taken in Re Canavan, the operation of the foreign law and its effect are viewed objectively.
28 In Re Canavan[2] an example was given of a foreign law which operated in a way that would engage the constitutional imperative. The example was a foreign law which permitted renunciation of foreign citizenship but required foreign citizens to carry out the necessary acts of renunciation in the territory of the foreign power. Compliance with this requirement was not possible because it put the person at risk. So understood, the foreign law would irremediably disqualify the person.
29 The operation of such a law was contrasted[3] with one which required a foreign citizen to apply for the favourable exercise of a discretion to permit renunciation of that foreign citizenship. That is a step required by foreign law which is reasonably open to the person and must be taken. It was for this reason
