15.
be attended by a measure of prior uncertainty. Uncertainty about the precise timing of the announcement of, or the issue of a writ for, a particular election accordingly forms part of the practical context within which each of the provisions of s 44 of the Constitution has the potential to operate to disqualify a particular potential candidate from participation in the process of being chosen in a particular election. Whatever the time of the announcement of the election or the issue of the writ, the process of being chosen to which each of the disqualifications in s 44 applies will always commence at the time of nomination and will continue until a candidate who is qualified to be chosen and who is not disqualified from being chosen as a senator or member of the House of Representatives is returned as elected[1].
49 No differently from any of the other disqualifications in s 44, uncertainty as to the precise timing of the announcement of an election and as to the precise timing of the issue of the writ has no bearing on the operation of the disqualification expressed in s 44(i) or its implied exception. The disqualification will always operate, and can be anticipated in advance of the announcement of a particular election or the issue of a particular writ always to operate, on and from nomination.
50 Avoidance of the disqualification so as to preserve the ability to participate in a particular election therefore demands 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 of that available remedial action. Just as it was held in Sykes v Cleary[2] to have been the responsibility of Mr Cleary to have ensured that his resignation as an officer of the Victorian teaching service took effect before his nomination for the election which occurred on 11 April 1992 if he was to escape the disqualifying effect of s 44(iv) so as to be capable of being chosen as a member of the House of Representatives in that election, it was the responsibility of Senator Gallagher to ensure that renunciation of her British citizenship took effect under the law of the United Kingdom before her nomination for the election which occurred on 2 July 2016 if she was to escape the disqualifying effect of s 44(i) so as to be capable of being chosen as a senator in that election.
