Sue v Hill [1999] HCA 30

In Sue v Hill [1999] HCA 30 the defendant was elected as a senator while having duel Australian/UK citizenship, which resulted in the nomination being made ineligible under section 44 of the Constitution. The court held that since the Australia Act 1986 (Cth), the UK is considered a foreign power and has no legislative, executive or judicial influence over Australia, despite the fact it was not so when the Constitution was written. One of the main arguments that was raised by the defendant was that the Queen of Australia is the same person as the Queen of the United Kingdom and Northern Ireland. Therefore swearing allegiance to the Queen of Australia was the same as swearing allegiance to the Queen of the United Kingdom and Northern Ireland. This argument was rejected by the Court on the basis that whilst physically it is the same person (Queen Elizabeth II) they are “independent and distinct” legal personalities. This notion is known as the divisibility of the Crown which Justice Gaudron found to be “implicit in the Constitution.” The case clarified that the Queen of Australia does not act as a foreign monarch and includes a lengthy analysis on the meaning of the Crown in constitutional theory.

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