Re Barrow

• Jurisdiction: Australia Federal only
• Judge: Edelman J.
• Judgment Date: 07 November 2017
• Neutral Citation: [2017] HCA 47
• Date: 07 November 2017
• Court: High Court
• Docket Number: M122/2017

[2017] HCA 47

HIGH COURT OF AUSTRALIA

Edelman J

M122/2017

In the Matter of an Application by David Charles Barrow for Leave to Issue or File

Constitution, s 44(i).

High Court Rules 2004 (Cth), r 6.07.2.

Practice and procedure — Leave to issue or file document — Where applicant seeks declaration various steps are reasonable in order for him not to be incapable under s 44(i) of Constitution of being chosen as Senator — Whether declaration involves a justiciable matter.

Words and phrases — “advisory opinion”, “all steps that are reasonably required”, “declaration”, “foreign citizenship”, “hypothetical facts”, “incapable of being chosen”, “matter”.

ORDER

• 1. Leave to issue or file the proposed writ of summons refused.

• 2. Application dismissed.

1 Edelman J. On 1 September 2017, Gordon J directed the Registrar not to issue or file a proposed writ of summons presented by the applicant without the leave of a Justice 1. The applicant now brings this ex parte application for leave to issue or to file the proposed writ of summons.

2 In his proposed writ of summons, the applicant seeks a declaration from this Court that various steps he proposes to take are “reasonable” in order for him not to be incapable under s 44(i) of the Constitution of being chosen as a Senator in the next general election. Essentially, the steps proposed by the applicant concern his proposed renunciation of British citizenship and, if he is not chosen as a Senator, his proposed withdrawal of the renunciation. For the reasons below, the leave sought by the applicant should be refused and the application dismissed.

Background to the declaration sought by the applicant

3 The applicant's evidence is as follows. The applicant is an Australian legal practitioner. He was born in Australia to an Australian-born mother and a British-born father. He is a dual British and Australian citizen.

4 On 19 July 2010, ten days prior to the close of nominations for the 2010 general election, the applicant made an application to renounce his British citizenship. The applicant nominated for the House of Representatives at that election, in the Victorian Division of La Trobe, but was not elected. After the polling day his application to renounce his British citizenship had not been registered by the Home Department of the United Kingdom. The applicant says that he then “abandoned” his application to renounce his British citizenship.

5 On 8 June 2016, one day prior to the close of nominations for the 2016 general election, the applicant made another application to renounce his British citizenship. The applicant nominated for the House of Representatives at that election, in the New South Wales Division of Warringah, but was not elected. Again, after the polling day his application to renounce his British citizenship had not been registered by the Home Department of the United Kingdom. Again, he abandoned his application to renounce his British citizenship.

6 Prior to the 2016 general election the applicant sought a declaration from this Court that certain specified steps were “reasonable for [him] not to be incapable under s 44(i) of the Constitution of being chosen as a member of the House of Representatives”. On 13 May 2016, he discontinued those proceedings because, he says, he was not confident that the Court would determine his application before the close of candidate nominations. The applicant says that he now intends to nominate in the next election of Senators for the Territories as a

Senate candidate for the Australian Capital Territory. He seeks leave to issue or file a writ of summons, directed to the Commonwealth, seeking a declaration that various steps are reasonable in order for him not to be incapable under s 44(i) of being chosen as a Senator due to his dual citizenship.

The declaration sought by the applicant

7 The applicant seeks a declaration that various steps are “reasonable” in order for him “not to be incapable under s 44(i) of the Commonwealth Constitution of being chosen as a [S]enator”. Those steps include sending a letter to Her Majesty's Principal Secretary of State for the Home Department, in which the applicant proposes to explain that (i) his application to renounce his British citizenship is solely because he intends to nominate as a Senate candidate for the Parliament of the Commonwealth of Australia; (ii) if he is not elected as a Senator then he will notify the Home Department, if possible, to immediately withdraw his application to renounce his British citizenship; and (iii) if his application for renunciation has been registered by the Home Department then he will correspond with the Home Secretary to take “such steps as necessary … to endorse the formal evidence to show that [his] renunciation never took effect”.

8 There are difficulties with the premise of, and the applicant's approach to, this application. The relevant question concerning disqualification in the declaration sought is expressed as whether the applicant has taken reasonable steps to renounce his foreign citizenship. It should have been expressed as whether the applicant “has taken all steps that are reasonably required by the foreign law to renounce his...