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dc.contributor.authorThwaites, Rayner
dc.contributor.authorIrving, Helen
dc.date.accessioned2022-12-08T01:05:47Z
dc.date.available2022-12-08T01:05:47Z
dc.date.issued2020en_AU
dc.identifier.urihttps://hdl.handle.net/2123/29779
dc.description.abstractIn 2017, in Re Canavan, the High Court of Australia found five sitting Members of the Commonwealth Parliament to be citizens of a 'foreign power' and thus ineligible, under s 44(i) of the Constitution, to hold their seats. In 2018, in Re Gallagher, the High Court found that a Senator who had attempted unsuccessfully to renounce her British citizenship prior to her Senate candidature was similarly ineligible. In this article, we argue that the conclusion in Re Canavan was incorrect: that both the Court's reasoning about the purpose of s 44(i) - to avoid 'split allegiance' - and its methodology for determining foreign citizenship were inconsistent in their own right and also against its reasoning in Re Gallagher. We challenge the Court’s conflation of citizenship and allegiance with obedience to a state. We examine the rules of international law for identifying a person's citizenship, as well as exceptions to these rules, including what came to be known as the 'constitutional imperative', which the Court held will exempt a foreign citizen from s 44(i) disqualification under certain circumstances. We conclude that the Court, in seeking to avoid ‘uncertainty and instability’ in its interpretation of s 44(i), did the opposite. Had it looked, instead, to the relevant foreign state for an authoritative determination of a person’s citizenship, confusion and uncertainty surrounding s 44(i) could have been avoided, and a democratic understanding of Australian citizenship could have been prioritised.en_AU
dc.language.isoenen_AU
dc.publisherSageen_AU
dc.relation.ispartofFederal Law Reviewen_AU
dc.subjectForeign Citizenshipen_AU
dc.subjectConstitutionen_AU
dc.subjectHigh Court of Australiaen_AU
dc.subjectCitizenshipen_AU
dc.subjectParliamenten_AU
dc.titleAllegiance, Foreign Citizenship and the Constitutional Right to Stand for Parliamenten_AU
dc.typeArticleen_AU
dc.subject.asrc18 Law and Legal Studiesen_AU
dc.identifier.doi10.1177/0067205X20927809
dc.type.pubtypeAuthor accepted manuscripten_AU
dc.relation.arcDE160101123
usyd.facultySeS faculties schools::The University of Sydney Law Schoolen_AU
usyd.citation.volume48en_AU
usyd.citation.issue3en_AU
usyd.citation.spage299en_AU
usyd.citation.epage323en_AU
workflow.metadata.onlyNoen_AU


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