Insights | the High Court’s s 44 decision and its broader relevance

This article considers the decision of the High Court in the seven section 44 matters recently referred to it in its capacity as the Court of Disputed Returns in the context of its broader relevance to other areas of law.

Preliminary considerations

Chief Justice Kiefel was appointed in her present capacity in January 2017.

The rules of compulsory retirements at the age of 70 were last amended by referendum in 1977.  It does not seem probable that the retirement age will be altered any time soon.  It follows that her Honour has another 6 years or so as the Chief Justice barring unforeseen circumstances.

The last time the High Court had the occasion to consider section 44 of the Constitution was in the case of Sykes v Cleary & Ors (1992) 176 CLR 77; this decision was relied upon in each party’s submissions and featured prominently in the judgment delivered on 27 October 2017.

Snapshot of the s 44 decision

Judicial comity

The modern High Court bench has tended towards publishing joint decisions with a view to promoting judicial comity and clarity.  Notably, the instant decision was delivered with no dissenting justices.  It should probably be accepted as the last occasion section 44 of the Constitution will come before the High Court.

Ordinary and natural meaning

The interpretative approach to give section 44 its “ordinary and natural meaning” was stated no less than four times (see [19], [27], [48], [52]).

Historical context

At [27] to [36], their Honours chronicled the genesis of section 44 in its draft permutations.   Reference was also drawn to related section 34 in the Constitution in an effort to ascertain the Parliament’s intention in enacting a provision so as to ensure the provision was not redundant.

No need to import a test of reasonableness

Their Honours specifically rejected the arguments of “harshness” (at [60]) and “reasonableness” (at [61] to [69]).  Section 44 was described by their Honours “cast in peremptory terms” (at [61]).  It followed that no watering down of its provisions was tolerated or permitted and the only basis upon which a candidate with dual citizenship may comply with the “constitutional imperative” is to demonstrate 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“.

Insight: for a case which demonstrates what does not constitute reasonable steps to renounce dual citizenship, see Re Roberts [2017] HCA 39 per Keane J.

Significance to other matters and conclusion

The provision under consideration was said to be “cast in peremptory terms“.  One might be forgiven for thinking all legislative provisions are cast in such terms.

The instant case demonstrates significant adherence to the ordinary rules of legal construction, that is, to give a provision its ordinary and natural meaning, having ascertained it by reference to permissible extraneous material.

The corollary to this principle is that it is that it is unnecessary to extend or qualify a provision if its wording may be given effect without introducing such qualifications, regardless of the desirability to modernise or otherwise ameliorate perceived harshness in the provision.

Insight: one should not expect the present High Court to engage in judicial activism.


This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article.


The High Court of Australia image which appears in this article is from the High Court of Australia website

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