16.
51 EDELMAN J. Section 44(i) of the Constitution renders a person incapable of being chosen or of sitting as a senator or a member of the House of Representatives if, among other grounds, the person "is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power". That sub-section contains no express provision for how to determine whether a person should be recognised as a subject or a citizen of a foreign power or as entitled to those rights or privileges. Nor does it contain any express constitutional constraint upon whether a recognised foreign law should apply for the purposes of s 44(i). There are, however, two constraints. The first constraint is that in some circumstances the foreign law will not be recognised. One manner of non-recognition can be from a rule of the common law, often reflecting international law. The second constraint is the constitutional implication that was described in Re Canavan as a "constitutional imperative"[1]. This reference is concerned only with the latter constraint but it is necessary in these reasons also to discuss the former because the two are not wholly independent.
52 At Federation[2], as now[3], the general common law and international law rule was that the nature of a right or status acquired under the law of another country was to be determined by the law by which that right or status was acquired. However, it was, and is, well recognised at common law and in international law that exceptions exist to this general recognition rule. One of those exceptions is that a foreign law will not be recognised if the foreign law is inconsistent with local policy or the maintenance of local political institutions[4]. It has been said that "[i]t is difficult to conceive, upon what ground a claim can be rested, to give to any municipal laws an extraterritorial effect, when those laws are prejudicial to the rights of other nations, or to those of their subjects"[5]. Where this exception applies, "the judge will have to apply the domestic law
- ↑ (2017) 91 ALJR 1209 at 1219 [43], 1223 [72]; 349 ALR 534 at 545, 551; [2017] HCA 45.
- ↑ Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, (1896) at xliii–xliv; Story, Commentaries on the Conflict of Laws, 8th ed (1883), §29.
- ↑ Re Canavan (2017) 91 ALJR 1209 at 1218 [37]; 349 ALR 534 at 544.
- ↑ Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, (1896) at 33–34. See also Savigny and Guthrie, A Treatise on the Conflict of Laws, 2nd ed (rev) (1880) at 76–77.
- ↑ Story, Commentaries on the Conflict of Laws, 5th ed (rev) (1857), §32, referred to in Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 511–512 [50]; [2002] HCA 10 and The "Halley" (1868) LR 2 PC 193 at 203.
