Re Patterson; ex parte Taylor

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE SENATOR THE HONOURABLE
KAY CHRISTINE LESLEY PATTERSON   RESPONDENT

EX PARTE: GRAHAM ERNEST TAYLOR   PROSECUTOR

Re Patterson; Ex parte Taylor
[2001] HCA 51
Date of Order:  7 December 2000
Date of Publication of Reasons:  6 September 2001
S165/2000

ORDER

1.  Order absolute for a writ of certiorari to quash the decision of the respondent made on 30 June 2000 to cancel the visa of the prosecutor.

2.  Order absolute for a writ of prohibition prohibiting the respondent from further proceeding on the decision made by the respondent on 30 June 2000 to cancel the visa of the prosecutor.

3.  Respondent to pay the prosecutor's costs.

Representation:

D M J Bennett QC, Solicitor-General of the Commonwealth with S J Gageler SC and R P L Lancaster for the respondent (instructed by Australian Government Solicitor)

P Le G Brereton SC with D P M Ash for the prosecutor (instructed by Teakle Ormsby Conn)

Intervener:

D R Williams QC, Attorney-General of the Commonwealth with D M J Bennett QC, Solicitor-General of the Commonwealth with S J Gageler SC and R P L Lancaster intervening on behalf of the Commonwealth (instructed by Australian Government Solicitor).

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re Patterson; Ex parte Taylor

Constitutional Law (Cth) – Naturalisation and aliens – Meaning of "aliens" in s 51(xix) – Law empowering cancellation of visa of "non-citizen" – Whether such a law, applied to a British subject who has lived in Australia for over 33 years, is a law with respect to naturalisation and aliens.

Constitutional Law (Cth) – External affairs power – Whether s 51 (xxix) supports application of s 501(3) of Migration Act 1958 (Cth) to the prosecutor, a British subject who has lived in Australia for over 33 years.

Constitutional Law (Cth) – Meaning of "Minister" in s 64 of the Constitution – Whether Parliamentary Secretary constituted the "Minister" for the purpose of s 64 – Whether Parliamentary Secretary constituted "the Minister personally" for the purpose of s 501(4) of the Migration Act 1958 (Cth).

Immigration – Jurisdictional error – Power of Minister to cancel a visa on character grounds under s 501(3) of Migration Act 1958 (Cth) – Prosecutor had been sentenced to a term of imprisonment of 12 months or more and accordingly had a "substantial criminal record" – Substantial criminal record grounds for failure of character test – Prosecutor could not possibly pass the character test – Respondent invited prosecutor to make representations to her to have the decision revoked under s 501C(4) of Migration Act 1958 (Cth) – Only ground for revocation was that prosecutor passed the character test – Whether invitation to make representations evinced misunderstanding of nature of decision – Whether misunderstanding amounted to a constructive failure of jurisdiction.

Immigration – Jurisdictional error – Power of Minister to cancel a visa on character grounds under s 501(3) of Migration Act 1958 (Cth) – requirement that decision be in national interest – Meaning of "national interest" – Whether Minister in this case satisfied that decision in national interest.

Words and phrases – "aliens" – "non-citizen" – "the Minister" – "subject of the Queen" – "national interest".

Constitution, ss 24, 51(xix), 51(xxix), 64, 117.
Migration Act 1958 (Cth), s 501.

1. GLEESON CJ. I agree with the reasons given by Gummow and Hayne JJ for the orders that were made in this matter on 7 December 2000. I also agree with the reasoning of their Honours upon the issues as to which, in their view, the prosecutor's arguments should be rejected. I wish to add some comments in relation to two of those issues: first, whether the power given by the Constitution to the Parliament to make laws with respect to naturalization and aliens
   (s 51(xix)) sustains s 501(3) of the Migration Act 1958 (Cth) ("the Migration Act") in its application to the prosecutor; and secondly, whether the respondent's appointment, pursuant to which she acted under s 501(3) as the Minister, was valid.

   Naturalization and aliens

2. The gradual process by which a number of British colonies, having joined in a federal union, became an independent nation, was examined by this Court recently in Sue v Hill[1].  In 1901, Australia was part of the British Empire; a status considered vital to its security and prosperity.  The people of Australia were British subjects, owing allegiance to a Crown then regarded as one and indivisible.  Other British subjects included, not only the people of the United Kingdom, but also those of the other units of the Empire.

   [1](1999) 199 CLR 462.

3. The concept of citizenship does not appear in the Constitution. It emerged in the Australian Citizenship Act 1948 (Cth). Even then, all citizens in what had become the British Commonwealth had the common status of British subjects. It was not until 1984 that the distinction between Australian citizens and non-citizens became pivotal in the operation of the provisions of the Migration Act concerning the entitlement of persons born outside Australia, of non-Australian parents, to remain here.

4. Writing of the legislation which introduced that change, a senior officer of the Commonwealth Attorney-General's Department, Mr Brazil, said[2]:

   "At the time of writing - mid 1983 - Australia appears to be at the end of one era and to be beginning another in relation to the legal and conceptual bases by reference to which it deals with matters of nationality and immigration.

   Australian citizenship was established as late as 1949, and it has been allied with the status of a British subject, and this at a time when no other country of the former British Empire, including Britain itself, continues to use or recognise that status.  Early action to correct this anomaly, and the remaining discriminatory provisions that have gone with the recognition of the status of British subject, seems inevitable.  Also, important changes are proposed to the Migration Act 1958 that would have the effect of uniting, for the first time in Australian legislation, citizenship with the right of abode."

   [2]Brazil, "Australian Nationality and Immigration" in Ryan (ed), International Law in Australia, 2nd ed (1984), 210 at 210.

5. The prosecutor is a non-citizen. But, he says, he came to Australia in 1966, as a British subject; and has lived here ever since. That, it is argued, puts him beyond the reach of the power of Parliament to enact laws with respect to naturalization and aliens, and, specifically, to provide that he may be deprived of a right to remain in Australia, by action taken under s 501(3) of the Migration Act on the basis of his criminal history. As a British subject, who has become absorbed into the Australian community, he maintains that he cannot be treated by the Parliament as an alien, even though the United Kingdom, where he was born, has now become a foreign power[3].

   [3]Sue v Hill (1999) 199 CLR 462.

6. The prosecutor's argument is directly inconsistent with the decision of this Court in Nolan v Minister for Immigration and Ethnic Affairs[4]. The Court held that a person whose situation was not materially different from that of the prosecutor, a non-citizen who was a British subject, was covered by the then corresponding provisions of the Act, and that those provisions satisfied the description of a law with respect to naturalization and aliens. Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ referred to a United States decision of 1843[5] where it was said[6] that, for the purposes of United States law, an alien was "one born out of the United States, who has not since been naturalized under the constitution and laws."  They went on to describe that as "an acceptable general definition of the word 'alien' when that word is used with respect to an independent country with its own distinct citizenship."[7]  Evidently they did not regard the circumstance that the independent country with its own distinct citizenship retained a monarchical system of government, was formerly a unit of an Empire, and included amongst its residents persons who retained the status of subject but did not acquire citizenship, as altering the case.  They said[8]:

   "The transition from Empire to Commonwealth and the emergence of Australia and other Dominions as independent sovereign nations within the Commonwealth inevitably changed the nature of the relationship between the United Kingdom and its former colonies and rendered obsolete notions of an indivisible Crown …  The fact that a person who was born neither in Australia nor of Australian parents and who had not become a citizen of this country was a British subject or a subject of the Queen by reason of his birth in another country could no longer be seen as having the effect, so far as this country is concerned, of precluding his classification as an 'alien'.  It is not that the meaning of the word 'alien' had altered.  That word is and always has been appropriate to describe the status, vis-à-vis a former colony which has emerged as an independent nation with its own citizenship, of a non-citizen who is a British subject by reason of his citizenship of a different sovereign State."

   [4](1988) 165 CLR 178.

   [5]Milne v Huber 17 Fed Cas 403 (1843).

   [6]17 Fed Cas 403 at 406 (1843).

   [7](1988) 165 CLR 178 at 183.

   [8](1988) 165 CLR 178 at 184.

7. I am not persuaded that the Court should now reverse the interpretation which it gave the Constitution in 1988, in Nolan. Whilst fully accepting that the Parliament cannot, by some artificial process of definition, ascribe the status of alienage to whomsoever it pleases, I see no sufficient reason to deny to s 501(3) of the Migration Act, in its application to a person in the position of the prosecutor, the character of a law with respect to naturalization and aliens. The prosecutor was born outside Australia; his parents were not Australians; and he has not been naturalized as an Australian[9]. The power conferred by s 51(xix) includes a power to determine legal status[10]. It should be construed with full generality and in a manner that accommodates the changes that have occurred, over a century, in Australia's international standing, and in its relations with the United Kingdom. A conclusion that it is beyond the capacity of the Australian Parliament to respond to those changes in the manner provided for by s 501(3) of the Migration Act is unwarranted.

   [9]cf Pochi v Macphee (1982) 151 CLR 101 at 109-110, per Gibbs CJ with whom Mason and Wilson JJ agreed.

   [10]Meyer v Poynton (1920) 27 CLR 436 at 440-441 per Starke J.

   The respondent as Minister

8. The prosecutor challenged the status of the respondent as Minister for the purposes of the exercise by her of the power conferred by s 501(3) of the Migration Act.

9. On 21 October 1998, the Governor-General, acting pursuant to ss 64 and 65 of the Constitution, appointed the Honourable Philip Ruddock, a member of the House of Representatives, and a member of the Federal Executive Council, to hold the office of Minister for Immigration and Multicultural Affairs, and directed that he administer the Department of Immigration and Multicultural Affairs. The validity of such appointment and direction is not in question.

10. On 10 March 2000, the Governor-General signed an instrument, relating to the respondent, described as "Appointment of Parliamentary Secretary". By that instrument, the Governor-General, acting pursuant to ss 64 and 65 of the Constitution, appointed the respondent, who is a Senator and a member of the Executive Council, to administer two Departments, the Department of Foreign Affairs and Trade and the Department of Immigration and Multicultural Affairs. By the instrument, His Excellency also designated the respondent, pursuant to
    s 4 of the Ministers of State Act 1952 (Cth), as Parliamentary Secretary, and directed her to hold the office of Parliamentary Secretary to the Minister for Foreign Affairs and the office of Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs.

11. This, the prosecutor argues, cannot be done. Why not? If there is a reason, it must be found in the provisions of Ch II of the Constitution, concerning the Executive Government. But those provisions are relatively brief and, as one would expect, are expressed in a form which allows the flexibility that is appropriate to the practical subject of governmental administration, consistent with the basic requirements of responsible government.

12. The relevant sections of the Constitution provide as follows:

    "61The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

    62There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.

    63The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.

    64The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.

    Such officers shall hold office during the pleasure of the Governor-General.  They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.

    After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

    65Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs."

13. The above provisions contain, or reflect, in broad outline, some of the structural elements of the system of government provided for the body politic that was created in 1901.  There was to be a constitutional monarchy.  There was to be a separation of legislative, executive and judicial powers.  The executive power of the Commonwealth was to be vested in the Queen, and exercisable by her representative, the Governor-General.  The Governor-General was to act upon the advice of a Federal Executive Council, chosen by the Governor-General and holding office during his or her pleasure.  The Governor-General in Council was empowered to establish departments of State, and to appoint, from among the members of the Federal Executive Council, officers to administer such departments.  They were to be the Queen's Ministers of State for the Commonwealth.  A Minister of State was to be either a senator or a member of the House of Representatives, and thus answerable in and to Parliament for matters relating to the administration of government.  Parliament was empowered to make provision as to the number of Ministers of State at any one time, and also to prescribe the offices such Ministers should hold.  In the absence of such parliamentary prescription it was to be for the Governor-General to direct which offices should be held by Ministers.  Parliament, however, was to control the size of the Ministry.

14. For the framers of the Constitution to have descended into greater specificity would have imposed an unnecessary and inappropriate degree of inflexibility upon constitutional arrangements that need to be capable of development and adaptability. The deliberate lack of specificity is demonstrated by the absence of any reference to such prominent features of our system of democratic government as the office of Prime Minister, or the Cabinet.

15. The concept of administration of departments of State, appearing in s 64, is not further defined. This is hardly surprising. The practices and conventions which promote efficient and effective government administration alter over time, and need to be able to respond to changes in circumstances and in theory.

16. The prosecutor contends that, consistently with the above provisions, it was not open to the Governor-General, having previously appointed Mr Ruddock to administer the Department of Immigration and Multicultural Affairs, then to appoint the respondent to administer the same Department, as Parliamentary Secretary to the Minister.

17. This contention fails. There is nothing inconsistent with s 64 in the appointment of two persons to administer a Department. The practice of appointing Ministers, and Assistant Ministers, is well established, here and in the United Kingdom[11].  The concept of administration does not require that there be only one person who administers, and the concept of responsible government does not require that there be only one person answerable to Parliament for the administration of a Department.  Under the appointments made by the Governor-General, it is for the Minister and the Parliamentary Secretary to make their own arrangements as to the method by which the Department will be administered.  It is for Parliament to determine the procedures by which those two persons will answer for the conduct of such administration.  To repeat what was said in Egan v Willis[12], responsible government is a concept based upon a combination of law, convention, and political practice.  The characteristics of responsible government are not immutable.  They are certainly capable of accommodating the arrangements made by the Governor-General in the present case.

    [11]Parris, Constitutional Bureaucracy (1969) at 122-126.

    [12](1996) 40 NSWLR 650 at 660.

18. The Ministers of State Act 1952 (Cth), as amended by the Ministers of State and Other Legislation Amendment Act 2000 (Cth), provides that the number of Ministers of State must not exceed, in the case of those designated upon appointment as Parliamentary Secretary, 12, and in the case of those not so designated, 30. This is an exercise of the power conferred by s 65 and also by
    s 51(xxxvi) of the Constitution. The respondent is a Minister of State, designated upon appointment as a Parliamentary Secretary. By virtue of s 19A of the Acts Interpretation Act 1901 (Cth) she had the powers conferred upon the Minister by s 501(3) of the Migration Act.

19. The challenge to the respondent's status as Minister must be rejected.

20. GAUDRON J.   On 7 December 2000, this Court made absolute an order nisi for certiorari and prohibition directed to the respondent, Senator the Hon Kay Christine Lesley Patterson, Parliamentary Secretary to the Minister for Foreign Affairs and Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs ("the Parliamentary Secretary").  By its order, the Court quashed her decision of 30 June 2000 cancelling the visa of the prosecutor, Graham Ernest Taylor, and prohibited her from further proceeding on that decision.  The following are my reasons for joining in that order.

    Preliminary matters

21. Before turning to the precise issues raised in this case, it is convenient to note that, on 10 March 2000, the Governor-General appointed the Parliamentary Secretary "to administer the Department of Immigration and Multicultural Affairs". It was in that capacity that she purported to cancel Mr Taylor's visa. Her decision in that regard was purportedly made pursuant to s 501(3) of the Migration Act 1958 (Cth) ("the Act").

22. In fact, Mr Taylor did not have a visa in the sense that that word is ordinarily understood. Mr Taylor has never held a passport. He came to Australia as a child on his father's United Kingdom passport which, apparently, was stamped with a permanent entry permit. The visa which the Parliamentary Secretary purported to cancel is a deemed visa, being either an absorbed person visa under s 34 of the Act[13] or a transitional (permanent) visa pursuant to reg 4(1) of the Migration Reform (Transitional Provisions) Regulations (Cth)[14].  However, the Parliamentary Secretary apparently proceeded on the basis that she was revoking Mr Taylor's transitional (permanent) visa.

    [13]See s 34(2) of the Act which provides:

    "A non-citizen in the migration zone who:

    (a)    on 2 April 1984 was in Australia; and

    (b)    before that date, had ceased to be an immigrant; and

    (c)on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and

    (d)immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;

    is taken to have been granted an absorbed person visa on 1 September 1994."

    [14]Regulation 4(1) provides that, subject to reg 5, which is not presently relevant, "if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia."

    Relevant provisions of the Act

23. The legislative authority pursuant to which the Parliamentary Secretary purported to cancel Mr Taylor's visa is to be found in s 501(3) of the Act. That sub-section provides:

    "          The Minister may:

    (a)      refuse to grant a visa to a person; or

    (b)cancel a visa that has been granted to a person;

    if:

    (c)the Minister reasonably suspects that the person does not pass the character test; and

    (d)the Minister is satisfied that the refusal or cancellation is in the national interest."

    The effect of s 501F of the Act is that, if either of Mr Taylor's deemed visas was cancelled by the Parliamentary Secretary, the other was also cancelled[15].

    [15]Section 501F(1) applies if the Minister makes a decision under s 501 to cancel a visa that has been granted to a person. Section 501F(3) provides:

    "If:

    (a)    the person holds another visa; and

    (b)that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;

    the Minister is taken to have decided to cancel that other visa."

24. The "character test" referred to in s 501(3) of the Act is elaborated in sub-s (6) of that section in these terms:

    "          For the purposes of this section, a person does not pass the character test if:

    (a)the person has a substantial criminal record (as defined by subsection (7)); or

    (b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

    (c)having regard to either or both of the following:

    (i)the person's past and present criminal conduct;

    (ii)the person's past and present general conduct;

    the person is not of good character; or

    (d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

    (i)engage in criminal conduct in Australia; or

    (ii)harass, molest, intimidate or stalk another person in Australia; or

    (iii)vilify a segment of the Australian community; or

    (iv)incite discord in the Australian community or in a segment of that community; or

    (v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

    Otherwise, the person passes the character test."

25. "Substantial criminal record" is defined in s 501(7) to include the situation where "the person has been sentenced to a term of imprisonment of 12 months or more". Nothing in the Act elaborates the notion of "national interest" referred to in s 501(3).

26. Sub-section (4) of s 501 should also be noted. That sub-section provides:

    "          The power under subsection (3) may only be exercised by the Minister personally."

27. By s 15 of the Act, "if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect."[16] And by s 189(1) it is provided:

    "          If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person."

    Moreover, the provisions of Div 8 of Pt 2 of the Act allow for the removal of an unlawful non-citizen from Australia.

    [16]Section 15 is subject to an exception, which is not presently relevant, with respect to "[a]n allowed inhabitant of the Protected Zone".

    The issues

28. The issues which arise in this matter are:

    1.whether s 501(3) of the Act is valid in its application to the prosecutor;

    2.whether, as a matter of statutory construction, the Parliamentary Secretary is "the Minister personally" for the purposes of s 501(4) of the Act;

    3.if the Parliamentary Secretary is "the Minister personally", whether she has been validly appointed as one of the Queen's Ministers of State for the Commonwealth;

    4.whether the decision of the Parliamentary Secretary involved jurisdictional error attracting relief by way of prohibition under s 75(v) of the Constitution.

    The facts

29. At this stage it is necessary to note that Mr Taylor was convicted of an offence in respect of which he was sentenced to a minimum term of imprisonment of three and a half years. Thus, he did not pass and cannot pass the character test in s 501(3) of the Act. Otherwise, to the extent that it is necessary to refer to the facts, which are set out in other judgments, the facts relevant to each issue will be referred to separately in relation to each of those issues.

    Validity of s 501(3) of the Act in its application to Mr Taylor

30. Mr Taylor was born in the United Kingdom and, as already noted, came to Australia as a child on his father's passport in 1966.  He was then a young child.  He has resided in Australia ever since.  He was educated here and has made his home here.  He has been on the electoral roll since attaining the age of 18.  He has never applied for a passport and has not taken out Australian citizenship.

31. It was conceded on behalf of the Parliamentary Secretary that, when she made her decision cancelling his visa, Mr Taylor was completely absorbed into the Australian community.  Indeed, the Parliamentary Secretary must be taken to have conceded that he was completely absorbed into the community prior to April 1984, that being one of the requirements for an absorbed person visa[17].

    [17]See fn 13.

32. Because it was accepted by both sides that Mr Taylor had been absorbed into the Australian community, the matter was argued on the assumption that s 501(3) of the Act cannot be supported in its application to him by reference to the legislative power of the Commonwealth with respect to "immigration and emigration"[18]. That is an assumption that requires further examination, and to which it will be necessary to return. Given that assumption, the matter was argued on the basis that s 501(3) of the Act is valid in its application to Mr Taylor only if, at the time of the decision to cancel his visa, he was an alien for the purposes of s 51(xix) of the Constitution.

    [18]Constitution, s 51(xxvii).

33. As I pointed out in Nolan v Minister for Immigration and Ethnic Affairs, an alien is "a person who is not a member of the community which constitutes the body politic of the nation state from whose perspective the question of alien status is to be determined."[19] That is not the same as asking whether the person is "under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power", that being the question posed by s 44(i) of the Constitution with respect to the qualification necessary to be a member of the Commonwealth Parliament.

    [19](1988) 165 CLR 178 at 189.

34. Were the question whether Mr Taylor is, by force of s 44(i) of the Constitution, disqualified from being a member of the Commonwealth Parliament, he would certainly be identified as "a citizen of a foreign power". That is because, given Australia's status as an independent nation, the United Kingdom is now a foreign power, although it could not have been so described at the time of federation[20].  However, that is not the question posed in this case.  A person is not necessarily excluded from membership of the Australian community by reason of his or her being a citizen of a foreign power.  Thus, a person who has been naturalised as an Australian may be a member of the Australian community by virtue of his or her Australian citizenship and, at the same time, a citizen or subject of a foreign country[21].

    [20]See Sue v Hill (1999) 199 CLR 462 at 523-528 [158]-[173] per Gaudron J.

    [21]Whether a person who is naturalised as an Australian loses the citizenship of his or her country of origin depends on the municipal laws of that country:  see Sykes v Cleary (1992) 176 CLR 77 at 105-106 per Mason CJ, Toohey and McHugh JJ, 110-112 per Brennan J, 127 per Deane J, 131 per Dawson J, 135 per Gaudron J; Sue v Hill (1999) 199 CLR 462 at 486-487 [47] per Gleeson CJ, Gummow and Hayne JJ, 529 [175] per Gaudron J. On the other hand, s 17 of the Australian Citizenship Act 1948 (Cth) provides for the loss of Australian citizenship by the subsequent acquisition of the nationality or citizenship of a foreign country.

35. On his arrival in Australia, Mr Taylor was, by virtue of his birth in the United Kingdom, "a citizen of the United Kingdom and Colonies"[22] for the purposes of the British Nationality Act 1948 (UK).  And for the purposes of the Nationality and Citizenship Act 1948 (Cth) (later known as the Citizenship Act 1948 and, later still, the Australian Citizenship Act 1948) ("the Citizenship Act"), he was a British subject[23]. He was, at that stage, a migrant but not an alien as defined in s 5 of the Citizenship Act. That section then defined "alien" to mean "a person who [was] not a British subject, an Irish citizen or a protected person". And that remained the position until 1987 when that definition was repealed by the Australian Citizenship Amendment Act 1984 (Cth)[24] ("the 1984 Act").

    [22]See s 5 of the British Nationality Act 1948 (UK).

    [23]Section 7 of the Citizenship Act as at 1966 defined "British subject" to include a citizen of the United Kingdom and Colonies.

    [24]Section 4(2) of the 1984 Act, which removed the definition of "alien" from s 5 of the Citizenship Act, came into force on 1 May 1987.

36. In Nolan, the majority pointed out that the definition of "alien" in the Citizenship Act did not "confine the meaning or denotation of the word in s 51(xix) of the Constitution."[25]  That is correct.  There can be no doubt, as the majority pointed out in that case, that "the emergence of Australia as an independent nation, the acceptance of the divisibility of the Crown which was implicit in the development of the Commonwealth as an association of independent nations and the creation of a distinct Australian citizenship ... necessarily produced different reference points for the application of the word 'alien'"[26] with the consequence that, although there was a point in Australia's development where a British subject could not be an alien, that is no longer the case.

    [25](1988) 165 CLR 178 at 186 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ.

    [26](1988) 165 CLR 178 at 185-186.

37. To say that "although there was a point in Australia's development where a British subject could not be an alien, that is no longer the case" leaves unanswered two questions which are material in the present case. The first is whether a person in the position of Mr Taylor was always an alien for the purposes of s 51(xix) of the Constitution. And, if he was not, the second is whether it is within the power of the Parliament to legislate so as to transform him into one.

38. In Nolan, the majority held that a person whose circumstances were not relevantly distinguishable from those of Mr Taylor was an alien for constitutional purposes and, as such, the deportation provisions of the Act, as it then stood, were applicable to him. However, the majority did not address the question whether the person whose status was in issue in that case had always been an alien and, if not, whether and by what means he could be converted into one. That being so, the decision, in my view, is flawed.

39. Although the majority decision in Nolan was rested upon what was said in Pochi v Macphee[27], it cannot be said to have rested on a principle that had been carefully worked out in a significant succession of cases[28].  What was said in Pochi was that "the Parliament can ... treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian."[29] However, that case was not concerned to analyse the position of persons who entered this country as British subjects at a time when they fell outside the definition of "alien" in the Citizenship Act. Nor was it concerned with the question whether, if they were not aliens, Parliament could legislate to make them so for the purpose of s 51(xix) of the Constitution.

    [27](1982) 151 CLR 101.

    [28]See The State of Victoria v The Commonwealth ("the Second Uniform Tax Case") (1957) 99 CLR 575 at 615-616 per Dixon CJ; Queensland v The Commonwealth (1977) 139 CLR 585 at 599 per Gibbs J, 630 per Aickin J; TheCommonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 56 per Gibbs CJ; John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438 per Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ.

    [29](1982) 151 CLR 101 at 109-110 per Gibbs CJ.

40. Because the decision in Nolan is not rested on a principle that has been carefully worked out in a series of cases and because it is, in my view, flawed, I would grant leave to Mr Taylor, if leave be necessary[30], to reopen the decision in that case.  In this regard, it should also be noted that, in the words of Deane J in Stevens v Head, "[t]here are ... weighty statements of authority ... that, in matters of fundamental constitutional importance, the members of this Court are obliged to adhere to what they see as the requirements of the Constitution"[31].  And there could hardly be an issue of more fundamental importance than that of a person's constitutional status.

    [30]See Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311.

    [31](1993) 176 CLR 433 at 461-462. See also The Tramways Case [No 1] (1914) 18 CLR 54 at 70 per Isaacs J; W & A McArthur Ltd v State of Queensland (1920) 28 CLR 530 at 555 per Knox CJ, Isaacs and Starke JJ; The Commonwealth v Cigamatic Pty Ltd (In Liquidation) (1962) 108 CLR 372 at 377-378 per Dixon CJ (with whom Kitto and Windeyer JJ agreed), 389 per Menzies J (with whom Owen J agreed); Queensland v The Commonwealth (1977) 139 CLR 585 at 593-594 per Barwick CJ, 630 per Aickin J; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 554.

41. The Constitution does not identify any specific criterion for membership of the Australian body politic or for the withdrawal of that membership. Rather, it leaves it to Parliament, in the exercise of its power to legislate with respect to naturalisation and aliens, to specify the conditions upon which a person may become a member or may be expelled from membership of the Australian body politic.

42. For present purposes, the most significant legislative development with respect to membership of the Australian body politic was the introduction, in 1948, of the concept of Australian citizenship. With the enactment, in that year, of the Citizenship Act, Australian citizenship became a criterion, but not the sole criterion, for membership of the Australian body politic[32].  Australian citizenship did not become the sole criterion for membership until the coming into effect of the 1984 Act in 1987.

    [32]See Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 189-190 per Gaudron J.

43. Although the Parliament may legislate to specify the conditions upon which a person may become or may be expelled from membership of the Australian body politic, the power to legislate with respect to aliens is not necessarily a power to define who is and who is not an alien.  In that regard, Gibbs CJ accepted in Pochi that there may well be limits to the Parliament's power to define an alien[33].  And certainly it would not have been open to the Parliament to define a subject of the Queen as an alien at the time of federation or for some time thereafter[34].  That is why the power with respect to immigration and emigration was the crucial issue in R v Macfarlane; Ex parte O'Flanagan and O'Kelly, the prosecutors in that case being British subjects born in Ireland[35].

    [33](1982) 151 CLR 101 at 109.

    [34]Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183-184 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ.

    [35](1923) 32 CLR 518. As to the recognition that British subjects were not then aliens, see also Jerger v Pearce (1920) 27 CLR 526; Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 88 per Isaacs J, 117 per Higgins J, 132 per Starke J.

44. Although the definition of "alien" in s 5 of the Citizenship Act could never control the meaning of that word in s 51(xix) of the Constitution, it could, until its repeal in 1987, serve to identify those whom the Parliament had legislated to recognise as members of the Australian community. The effect of the definition was either to confirm Mr Taylor's membership of the body politic constituting the Australian community by virtue of his status as a British subject or, if the point had then been reached when Australia might treat British subjects as aliens for constitutional purposes, to confer non-alien status upon him – in effect, to naturalise him and all other British citizens in the same position. Either way, Mr Taylor was not, for constitutional purposes, an alien at any time prior to 1987.

45. Given that Mr Taylor was not, for constitutional purposes, an alien at any time prior to 1987, two questions arise.  The first is whether Parliament has legislated to withdraw his membership of the Australian community; and if it has, whether that legislation is within constitutional power.

46. Parliament has not, in terms, legislated to withdraw membership of the body politic constituting the Australian community from those British subjects who entered Australia prior to 1987 but who have not since taken out Australian citizenship. Rather, it has simply legislated to repeal the definition of "alien" that appeared in the Citizenship Act until 1987 and, having done so, it has assumed, for the purposes of the Act, that, as a matter of constitutional fact, that is the case. However, because that assumption is implicit in the Act, it necessarily operates, if valid, to withdraw their membership of the Australian community. In my opinion, it cannot validly operate with that effect.

47. The power to legislate with respect to naturalisation and aliens clearly includes a power to legislate to deprive a person of his or her membership of the body politic that constitutes the Australian community.  However, the Parliament's power in that regard is not at large.  It can only be exercised by reference to some change in the relationship between the individual and the community.  Absent any such change, the law could not be classified as a law with respect to naturalisation or aliens, for that power is wholly concerned with the relationship of individuals to the Australian community.

48. The only relevant change that can be postulated with respect to Mr Taylor's relationship with the Australian community is that there has been an evolutionary change in constitutional and governmental thinking with the emergence of the notion of the divisibility of the Crown.  Thus, modern jurisprudence has it that the Queen of the United Kingdom is separate and distinct from the Queen of Australia, a situation brought about by Australia having become an independent nation[36].

    [36]See Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 184 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ; Sue v Hill (1999) 199 CLR 462 at 489-490 [57] per Gleeson CJ, Gummow and Hayne JJ, 526-527 [169] per Gaudron J.

49. Undoubtedly, when allegiance to the Sovereign was the criterion for membership of the body politic, a change in allegiance could serve to terminate one's membership of it.  And that was so whether the change occurred by choice on the part of the individual concerned or by operation of law.  Thus the status of Hanoverians resident in England changed by operation of law when, following the death of William IV, different monarchs succeeded to the thrones of England and Hanover.  That was because the allegience owed by Hanoverians resident in England was to the sovereign of Hanover, his heirs and successors.  On the death of William IV, the Hanoverian "became an alien because the sovereign to whom his allegiance was due was a foreign sovereign"[37], there being different laws of succession in Hanover and England.  Of significance, however, was that "[t]he Hanoverian by birth ... had needed no naturalization ... [when t]he Crowns had by accident been united in one person"[38].

    [37]In re Stepney Election Petition.  Isaacson v Durant (1886) 17 QBD 54 at 60 per Lord Coleridge CJ.

    [38]In re Stepney Election Petition.  Isaacson v Durant (1886) 17 QBD 54 at 59-60 per Lord Coleridge CJ.

50. Notwithstanding that, for constitutional and governmental purposes, a distinction is made between the Queen as Queen of the United Kingdom and as Queen of Australia, there is but one person who performs both sovereign functions, as was the case when the Crowns of Hanover and England were "united in one person".  Mere change in constitutional and legal thinking with respect to the Crown cannot, of itself, effect a change in the relationship between persons in the position of Mr Taylor and the body politic constituting the Australian community.  Whatever changes may occur in the composition of the body politic constituting the Australian community as a result of changes in constitutional thinking, the relationship between the individual, who is likely to be unaware of those changes, and the community, as an abstraction, is not.

51. To say that a change in constitutional and legal thinking is not, of itself, sufficient to change the relationship between persons in the position of Mr Taylor and the Australian community is not to say that that change is irrelevant to Parliament's powers to legislate as to the criterion by which persons such as Mr Taylor might, in the future, be classified as aliens.  Parliament might, for example, legislate to define "alien" to include persons who, although not aliens prior to 1987, have since taken action to acknowledge their allegiance to the United Kingdom or to assert their rights and privileges as one of its citizens.  But Parliament has not done so.  It follows that Mr Taylor remains a member of the body politic constituting the Australian community and is, thus, not an alien.

52. A law providing for the detention otherwise than upon conviction for a criminal offence and for the compulsory removal from Australia of persons who have been integrated into the Australian community cannot be supported as a law with respect to immigration and emigration[39]. Nor, in my view, can it be supported as a law with respect to external affairs. That is because the removal of a person from Australia, simpliciter, does not give rise to any external affair, as such. Such a law is valid only as a law with respect to aliens. It follows, therefore, that the provisions of the Act providing for the detention and removal of prohibited non-citizens from Australia are valid only in their application to non-citizens who are also aliens. Thus, they are not valid in their application to Mr Taylor.

    [39]See Potter v Minahan (1908) 7 CLR 277 at 308 per Isaacs J; Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 62-65 per Knox CJ, 109-110 per Higgins J, 137-138 per Starke J; R v Carter; Ex parte Kisch (1934) 52 CLR 221 at 229 per Evatt J; Koon Wing Lau v Calwell (1949) 80 CLR 533 at 576-577 per Dixon J, 587-588 per Williams J; R v Director-General of Social Welfare (Vict); Ex parte Henry (1975) 133 CLR 369 at 372 per Barwick CJ, 373 per Gibbs J, 379 per Mason J, 383 per Jacobs J; Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 194-195 per Gaudron J.

53. Because the provisions of the Act providing for the detention and removal from Australia of non-citizens are invalid in their application to Mr Taylor, it follows that prohibition lies to prevent the Parliamentary Secretary from taking any action in that regard pursuant to her decision of 30 June 2000. It does not follow, however, that her decision should be quashed.

54. Although the power to legislate with respect to immigration does not extend to laws for the detention and removal of persons who have been integrated into the Australian community, there is no reason, in my view, why that power does not enable the Parliament to legislate so as to provide for the conferral of visas on persons who have migrated to Australia. Nor in my view, is there any reason why, having legislated to confer visas on such persons, the Parliament cannot legislate to provide for their cancellation. That being so, s 501(3) is not, in my view, invalid and certiorari does not lie to quash the Parliamentary Secretary's decision on that account.

    The Minister personally

55. On this issue, I agree with Gummow and Hayne JJ, for the reasons that their Honours give, that, as a matter of statutory construction, the Parliamentary Secretary is, for the purposes of s 501(4) of the Act, "the Minister personally".

    Validity of the Parliamentary Secretary's appointment as Minister of State

56. It was argued on behalf of Mr Taylor that, notwithstanding that, as a matter of statutory construction, the Parliamentary Secretary is "the Minister personally" for the purposes of s 501(4) of the Act, her appointment as Minister is invalid and the only person capable of acting as the Minister personally is the Hon Philip Ruddock who was appointed by the Governor-General on 21 October 1998 to administer the Department of Immigration and Multicultural Affairs and, thus, to hold office as one of the Queen's Ministers of State for the Commonwealth. His appointment has not been revoked.

57. The Parliamentary Secretary's appointment occurred on 10 March 2000. On that day the Governor-General signed an Instrument of Appointment designating her, pursuant to s 4 of the Ministers of State Act 1952 (Cth) ("the Ministers of State Act"), as Parliamentary Secretary and directing her to hold the office of Parliamentary Secretary to the Minister for Foreign Affairs and the office of Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs. By the Instrument of Appointment she was also appointed "to administer THE DEPARTMENT OF FOREIGN AFFAIRS AND TRADE AND THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS".

58. The appointment of the Hon Philip Ruddock and of the Parliamentary Secretary were each expressed to be pursuant to ss 64 and 65 of the Constitution. Section 64 relevantly provides:

    "          The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.

    Such officers shall hold office during the pleasure of the Governor-General.  They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth."

59. Section 65 provides:

    "          Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs."

    The Ministers of State Act provides, in s 4, that:

    "          The number of the Ministers of State must not exceed:

    (a)in the case of those designated, when appointed by the Governor-General, as Parliamentary Secretary – 12; and

    (b)in the case of those not so designated – 30."

60. It was put on behalf of Mr Taylor that s 4 of the Ministers of State Act is invalid in so far as it "purports to confer upon the Executive a power to designate [a member of Parliament] a Parliamentary Secretary upon ... appointment by the Executive under s 64 of the Constitution". Accordingly, so the argument went, the Governor-General could not appoint more than 30 Ministers, a number which was exceeded by the appointment of the various Parliamentary Secretaries and, thus, their appointments were invalid.

61. The Parliament has power under s 51(xxxvi) of the Constitution to legislate with respect to "matters in respect of which this Constitution makes provision until the Parliament otherwise provides". Section 65 of the Constitution makes provision with respect to the number of the Ministers of State and the offices they are to hold "[u]ntil the Parliament otherwise provides". By s 4 of the Ministers of State Act Parliament has provided for an office of Parliamentary Secretary to be held by twelve of the forty-two persons who are appointed Ministers of State. Such provision is clearly authorised by s 51(xxxvi) of the Constitution.

62. Additionally, it was put that there is no power under s 64 of the Constitution "to appoint to administer a department of State a person who cannot and does not administer the department". The question whether, at the relevant time, the Parliamentary Secretary administered the Department of Immigration and Multicultural Affairs is a question of fact and as will later appear, is one that is irrelevant to these proceedings. The question whether she could administer the Department depends on whether s 64 of the Constitution permits of two or more persons to administer a department of State.

63. Before turning to s 64 of the Constitution, it is convenient to note that the notion of responsible government was called in aid of the argument that s 64 permits of the appointment of only one person to administer a department of State. The concept of responsible government is not one which is elaborated in the Constitution. Rather, the Constitution simply provides, in the concluding sentence of s 64, that:

    "          After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives."

    It may here be noted that the Parliamentary Secretary has at all relevant times been a Senator.

64. The concluding sentence of s 64 of the Constitution provides the machinery by which a Minister is accountable to Parliament, a core aspect of the notion of responsible government. Of equal significance to the concept of responsible government is the conferral, by s 75(v) of the Constitution, of original jurisdiction on this Court in all matters "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". That provision provides the mechanism by which the Executive is subjected to the rule of law.

65. To the extent that there is ambiguity in the terms of s 64 of the Constitution, the notion of responsible government, as embodied in the concluding sentence of s 64 and in s 75(v) of the Constitution, may shed light on its proper construction. Primarily, however, its meaning depends on its terms. And by its terms, it permits of the appointment of "officers to administer ... departments of State". As a matter of ordinary language, s 64 permits of the appointment of more than one person to administer one or more departments of State. Nothing in its concluding sentence, or in s 75(v) of the Constitution directs otherwise.

66. What, however, does not clearly emerge from s 64 is whether, if more than one person is appointed to administer a department of State, those persons are appointed to administer it jointly or severally. In this respect, the concluding sentence of s 64 provides no guidance. However, the notion of "administering a department of State" is not one that easily accommodates anything other than joint appointment. Moreover, the subjection of those administering a department of State to the rule of law, as contemplated by s 75(v) of the Constitution, may be thwarted if, in the case of more than one person administering a department, their appointment is other than joint. Accordingly, in my view, although s 64 permits of the appointment of more than one person to administer a department of State, it permits only of their joint appointment.

67. Ordinarily, in the case of a joint appointment, the appointees are appointed in the same instrument and at the same time. However, the Constitution does not specify the manner of appointment of those who are to administer the departments of State of the Commonwealth. That being so, I would not construe the instrument appointing the Parliamentary Secretary to administer the Department of Immigration and Multicultural Affairs other than as an appointment to administer that department jointly with any other person appointed on that behalf. Accordingly, her appointment is valid. Even so, a question arises whether, as a joint appointee, she is "the Minister personally" for the purposes of s 501(4) of the Act.

68. It does not follow that, because the Parliamentary Secretary was appointed jointly to administer the Department of Immigration and Multicultural Affairs, she was not "the Minister personally" for the purposes of s 501(4) of the Act. In making the decision to cancel Mr Taylor's visa, she was exercising a statutory power. Whether or not she was also administering the Department is beside the point. So far as the exercise of the power conferred by s 501(3) of the Act is concerned she was, for the reasons given by Gummow and Hayne JJ, the Minister personally.

    Jurisdictional error

69. The decision-making process which led to the Parliamentary Secretary's decision to cancel Mr Taylor's visa commenced with a departmental minute of 26 June 2000 advising her that the Hon Philip Ruddock had "indicated that a submission to consider the possible cancellation of Mr Taylor's visa under subsection 501(3) of the Act should be prepared and that the matter ought to be considered by [her]." The minute sought a decision whether the submission to consider possible cancellation "should be under s 501(2) / s 501(3) of the Act."

70. The minute of 26 June 2000 correctly informed the Parliamentary Secretary that if she "decide[d] to consider Mr Taylor's case under s 501(2), then [he had to] be accorded natural justice prior to the making of a decision". It also informed her that if she "decide[d] to consider [his] case under s 501(3), then there [was] no requirement to accord natural justice prior to the making of a decision" but, if a decision were made to cancel his visa, he would thereafter have to be given "an opportunity to make representations seeking revocation of the decision". The minute then referred the Parliamentary Secretary to ss 501C(3) and (4) of the Act.

71. Sub-section (4) of s 501C of the Act provides with respect to a decision to cancel a visa that:

    "          The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation [required by s 501C(3)]; and

    (b)the person satisfies the Minister that the person passes the character test (as defined by section 501)."

    The departmental minute did not explain that Mr Taylor did not and could not pass the character test and thus, in fact, he could not effectively seek revocation of her decision.

72. The Parliamentary Secretary indicated her intention to consider possible cancellation of Mr Taylor's visa under s 501(3) of the Act and, on 29 June 2000, a departmental submission was put to her for her consideration. It is necessary to give a somewhat detailed account of that submission which, in Pt A, set out Mr Taylor's personal particulars and details of his visa.

73. Part B of the departmental submission, headed "CONSIDERATION OF VISA CANCELLATION" was in these terms:

    "Grounds:

    1.The relevant ground for cancellation is section 501(6)(a) – substantial criminal record of the Migration Act 1958 (the Act).

    Evidence of grounds for cancellation:

    2.Departmental files 96/701378, CLF1999/12446 and CLF2000/23125 contain evidence of Mr Taylor's criminal history in Australia.  The evidence includes court transcripts and criminal history information disclosed by the New South Wales Police."

74. The terms of s 501(6) defining the character test, details of Mr Taylor's convictions and the judge's remarks on sentencing were set out in Pt C of the departmental submission, as were certain submissions with respect to the national interest. Part D of the submission concerned matters relevant to the exercise of her discretion should the Parliamentary Secretary decide that Mr Taylor had a substantial criminal record and it was in the national interest that his visa be cancelled. It is unnecessary to refer to the detail of the submission concerning the exercise of discretion for it is not suggested that jurisdictional error is revealed in that part of the Parliamentary Secretary's decision. However, it is necessary to refer to that part of Pt C of the submission bearing on the national interest requirement of s 501(3) of the Act.

75. The submission recorded the holding in In Re Application of Amalgamated Anthracite Collieries Ltd[40] that the national interest is not essentially a legal concept but one for Parliament and the executive to determine, that it was for the Parliamentary Secretary to decide the issue raised by s 501(3)(d) and that her consideration was not confined to "core government functions [but] extends to the realm of 'perception' of the nation or its laws." The submission then proceeded:

    "10.In MIMA v Paul William Gunner (NG49 of 1998), the Full Federal Court agreed that it was reasonable for you to find that it was not in the national interest that a person who has a substantial criminal record be allowed to have the benefits of an Australian visa.

    11.It is now open to you to find whether or not it is in the national interest that Mr Taylor's visa should be cancelled."

    [40](1927) 43 TLR 672. This was a decision of the Railway and Canal Commission (UK) rather than of the High Court of Australia, as suggested in the submission to the Parliamentary Secretary.

76. In Minister for Immigration and Multicultural Affairs v Gunner[41], the Minister had cancelled a visa under s 501 of the Act because the visa-holder was not of good character and he was satisfied that it was in the national interest to do so. The Minister had also issued a certificate under s 502 of the Act declaring the visa-holder to be an excluded person. The issue was whether the Minister had "power to make orders under ss 501 and 502 where that decision was based on the same facts and circumstances as those that had caused the [Administrative Appeals Tribunal] to set aside [an earlier] deportation order"[42].  It was held that he did.  In the course of its judgment, the Full Court of the Federal Court said this:

    "Nor could it be suggested that [the visa-holder's] crimes were not sufficiently serious to be capable of founding a view that it was in the national interest that he be deported."[43]

    A little later, the Full Court said:

    "It is the seriousness of that conduct which has to be assessed in the national interest.  Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa."[44]

    [41](1998) 84 FCR 400.

    [42](1998) 84 FCR 400 at 401.

    [43](1998) 84 FCR 400 at 408-409.

    [44](1998) 84 FCR 400 at 409.

77. The statements of the Full Court in Gunner by no means constitute an endorsement of the proposition that convictions which result in a person failing the character test by reason of s 501(7)(c) – a sentence of imprisonment of 12 months or more – are, themselves, sufficient to entitle the Minister to determine that it is in the national interest that his or her passport be cancelled. That, however, was the purport of the departmental submission.

78. The terms of s 501(3) make it clear that national interest considerations are separate and distinct from the question whether or not a person passes the character test. That is not to say that the matters which result in a person failing the character test may not also provide the foundation for the Minister's satisfaction that it is in the national interest that that person's visa be cancelled. It may be that the conduct which has led to a person failing the character test is such as to threaten the national interest as, for example, if a person fails the character test because his or her conduct is more likely than not to cause discord in the Australian community[45]. 

    [45]See s 501(6)(d)(iv).

79. Moreover, the crimes or some of the crimes of which a person has been convicted may be of such a nature as to found a satisfaction that it is in the national interest to cancel his or her visa.  Crimes which involve circumventing passport and immigration laws may well be crimes of that kind[46].  Further, crimes of which a person has been convicted may be of such seriousness or the circumstances in which they were committed may be of such a nature as to found the satisfaction that it is in the national interest that his or her visa be cancelled. 

    [46]Note that the crimes involved in Minister for Immigration and Multicultural Affairs v Gunner included a passport offence.

80. To say that the conduct which leads a person to fail the character test may also provide the foundation for the Minister's satisfaction that it is in the national interest to cancel his or her visa is not to say that it will always do so.  Both issues must be considered separately.  And where the same conduct is relied upon for both purposes, there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned.

81. The departmental submission did not inform the Parliamentary Secretary that she had to evaluate the conduct which led Mr Taylor to fail the character test to determine if it also satisfied her that it was in the national interest that his visa be cancelled.  Rather, she was simply informed that the ground on which she was entitled to cancel Mr Taylor's visa was his substantial criminal record and that it was open to her to find that it was in the national interest to do so because of that record.

82. A decision-maker falls into jurisdictional error if he or she misunderstands the nature of the jurisdiction to be exercised, misconceives his or her duty, fails to apply himself or herself to the question to be decided or misunderstands the nature of the opinion which he or she is to form[47].  By failing to appreciate that it was necessary for there to be something in the nature or seriousness of Mr Taylor's criminal convictions or in the circumstances in which his crimes were committed before she could be satisfied that it was in the national interest to cancel his visa, the Parliamentary Secretary misconceived her duty, failed to apply herself to the question to be decided and misunderstood the nature of the opinion she was to form.

    [47]See Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1356 [31] per Gleeson CJ, Gaudron and Hayne JJ; 174 ALR 585 at 594-595, and the cases there cited.

83. Additionally, for the reasons given by Gummow and Hayne JJ, the Parliamentary Secretary misunderstood the nature of the jurisdiction she was exercising by failing to appreciate that there would, in effect, be no opportunity for Mr Taylor to seek revocation of her decision.

84. The jurisdictional errors involved in the decision of the Parliamentary Secretary ground relief by way of certiorari to quash her decision and prohibition to prevent further action being taken on it.

85. McHUGH J. On 7 December 2000, this Court, exercising its original jurisdiction under s 75(v) of the Constitution, made absolute orders nisi for writs of prohibition and certiorari granted on 29 September 2000. The orders were made at the end of the parties' arguments and without giving reasons.

86. In support of his claim for relief against the respondent, Mr Graham Ernest Taylor ("the prosecutor") had argued a number of grounds, two of which raised questions of great constitutional importance. The first constitutional ground raised the issue whether ss 64 and 65 of the Constitution authorised the appointment of the respondent to the office of Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs with a direction to administer the Department of Immigration and Multicultural Affairs. The second constitutional ground raised the issue whether the prosecutor, a British subject who emigrated to Australia with his parents in 1966 as a young child[48] and has not left the country since, was an alien for the purpose of s 51(xix) of the Constitution.

    [48]Some evidence suggests that he was born on 29 September 1956; other evidence suggests that he was born on 26 September 1959.

87. At the end of the argument, I was unsure whether the prosecutor had made out one or both of these constitutional grounds.  But I had concluded that the respondent had exercised her discretion under the relevant legislation under the erroneous belief that the prosecutor would have an opportunity to make representations to her.  Accordingly, I agreed that the Court should make the orders that it made on 7 December 2000.  My reasons for concluding that the respondent had erroneously exercised her discretion were the same as those now set out in the judgment of Gummow and Hayne JJ.

88. Ordinarily, that would be enough to dispose of the case because it is sound policy, acted on time and again by this Court and the Supreme Court of the United States, that constitutional issues should be determined only when it is necessary to do so.  However, the other members of the Court have expressed views on the two constitutional issues.  In respect of the "aliens" issue, the Court is equally divided.  In these circumstances, I think it is necessary for me to express a view on the "aliens" issue, particularly since it would be open to the respondent or the Minister to cancel the prosecutor's visa in the future.  Moreover, the issue affects many subjects of the Queen of the United Kingdom who arrived in this country many years ago and who have lived in Australia under the belief that they are not aliens but loyal subjects of the Queen of Australia.

89. In Nolan v Minister for Immigration and Ethnic Affairs[49] ("Nolan"), six Justices of this Court held that Nolan was an alien although he was a citizen of the United Kingdom and a subject of the Queen who had arrived in Australia in 1967 and lived here for 18 years. If that case was correctly decided, the prosecutor in the present case is an alien and a person who can be deported by the cancellation of his deemed visa pursuant to the powers conferred on the Minister by s 501 of the Migration Act 1958 (Cth).

    [49](1988) 165 CLR 178.

90. It is a large proposition to assert that a joint judgment of six Justices of this Court on a constitutional issue is so clearly wrong that it should not be followed.  But I have concluded that the joint judgment in Nolan falls into that category.  In my opinion, the joint judgment in that case overlooked two significant matters.  First, if the emergence of Australia as an independent nation had made Australians who were subjects of the Queen of the United Kingdom subjects of the Queen of Australia, there was no constitutional reason for distinguishing their position from that of British born subjects of the Queen of the United Kingdom living in Australia.  Logically, the evolutionary process that converted persons born in Australia into subjects of the Queen of Australia must also have converted British born subjects living in Australia into subjects of the Queen of Australia.  Second, although the joint judgment in Nolan referred to s 117 of the Constitution, it failed to acknowledge and give effect to its implications and the light that those implications threw on who was an "alien" for the purpose of s 51(xix) of the Constitution.

91. For these reasons, the decision in Nolan should be overruled.  The applicant and all other British subjects, born in the United Kingdom, who were living in Australia at the commencement of the Royal Style and Titles Act 1973 (Cth) and who have continued to reside here are subjects of the Queen of Australia, even if they are also subjects of the Queen of the United Kingdom. They are not and never have been aliens. They cannot be deported under the aliens or immigration powers conferred on the Parliament by s 51 of the Constitution.

    The material facts and issues

92. The prosecutor was born in the United Kingdom.  He came to Australia with his parents in 1966, as part of the assisted migration scheme[50].  He did not carry a passport or visa, but was deemed to be included in the entry permit granted to his parents[51].  While his status is in issue in these proceedings, it is clear that he is deemed to have held two types of visas:  an Absorbed Person Visa[52] and a Transitional (Permanent) Visa[53].  He has spent most of his life in Gunnedah, a rural town in New South Wales.  He has been on the electoral rolls for the federal and State parliaments since he turned eighteen[54].  The prosecutor has never left Australia since he arrived and has no recollection of life in the United Kingdom.

    [50]Agreement between Australia and the United Kingdom of Great Britain and Northern Ireland relating to an assisted passage migration scheme (London, 28 May 1962).  ATS 1962 No 3; UNTS 434 at 219.

    [51]s 6(8), Migration Act 1958 (Cth) (as in force at the relevant time).

    [52]s 34, Migration Act 1958 (Cth).

    [53]Granted as a result of the Migration Reform (Transitional Provisions) Regulations (Cth), reg 4.

    [54]As was his right and as preserved under s 93(1)(b)(ii)(A), Commonwealth Electoral Act 1918 (Cth).

93. In February 1996, the prosecutor pleaded guilty in the District Court of New South Wales to serious offences involving sexual assaults upon children.  Knight DCJ sentenced him to a minimum term of three and a half years with an additional term of two and a half years parole, to be released on 6 August 1999.  In prison he received favourable reports and undertook sex offender diversion courses.  Upon release from prison in 1999, he returned home to Gunnedah.  He began regular visits to a psychologist.  The Gunnedah community does not object to his presence in that locality.

94. On 4 November 1999, immigration officials and police officers came to the prosecutor's home. They arrested and detained him under a warrant issued as the result of a notice cancelling his visas. The visas had been cancelled under the power conferred by s 501(2) of the Migration Act which enacts:

    "Decision of Minister or delegate - natural justice applies

    …

    (2)The Minister may cancel a visa that has been granted to a person if:

    (a)      the Minister reasonably suspects that the person does not pass the character test^[[55]^]; and

    (b)      the person does not satisfy the Minister that the person passes the character test."

    [55]The character test is set out in s 501(6): "For the purposes of this section, a person does not pass the character test if:  (a) the person has a substantial criminal record (as defined by subsection (7))".  Subsection (7) includes if "(c) the person has been sentenced to a term of imprisonment of 12 months or more".

95. It was the Minister for Immigration and Multicultural Affairs, the Hon Philip Ruddock, who made the decision to cancel the prosecutor's visas on 4 September 1999.  The decision followed some correspondence and contact with the prosecutor when he was serving his sentence, but those communications were apparently tainted by some procedural errors, the details of which are not presently relevant[56].  Eventually, the prosecutor commenced proceedings in this Court's original jurisdiction seeking relief against the decision to cancel his visas.  On 16 March 2000, the proceedings came before Callinan J who intimated an intention to grant an order nisi on the ground of a denial of natural justice and made directions with a view to resolving outstanding issues.  Subsequently, the Minister consented to an order absolute for prohibition and certiorari, which Callinan J made in chambers on 12 April 2000.  Upon those orders being made, the prosecutor was released from detention.  He returned home to Gunnedah.

    [56]See Re Ruddock; Ex parte Taylor per Callinan J, 16 March 2000.

96. On 6 July 2000, the prosecutor was again arrested and detained after his visas had been cancelled. On this occasion, the decision to cancel the prosecutor's visas was made not by the Minister but by the respondent, Senator the Hon Kay Christine Lesley Patterson. She was acting in her capacity as Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs, a position to which she was appointed on 10 March 2000 by the Governor-General. She purported to cancel the prosecutor's visas pursuant to s 501(3) of the Migration Act, which enacts[57]:

    [57]Both of the prosecutor's visas would have effectively been cancelled by this decision. By s 501F(3) if the person holds another visa which is neither a protection visa nor a visa specified in the Regulations, then the Minister is taken to have decided to cancel that other visa.

    "Decision of Minister – natural justice does not apply

    (3)The Minister may:

    (a)      refuse to grant a visa to a person; or

    (b)cancel a visa that has been granted to a person;

    if:

    (c)the Minister reasonably suspects that the person does not pass the character test; and

    (d)the Minister is satisfied that the refusal or cancellation is in the national interest.

    (4)The power under subsection (3) may only be exercised by the Minister personally.

    (5)The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3)."

97. It is with respect to that decision that the prosecutor brought the present proceedings seeking relief under s 75(v) of the Constitution.

    The "aliens" issue

98. The prosecutor sought relief upon various grounds. But for the reasons I have given, it is only necessary to deal with the aliens issue. Was the prosecutor at the relevant time an "alien" within the meaning of s 51(xix) of the Constitution and thereby properly subject to an exercise of power under s 501(3) of the Migration Act?

99. Section 51(xix) of the Constitution provides that, subject to the Constitution, the Parliament of the Commonwealth has power to make laws with respect to "Naturalization and aliens". The power is plenary. In Chu Kheng Lim v Minister for Immigration[58] I said:

    "Subject to the Constitution, [the power granted to Parliament by s 51(xix) of the Constitution to make laws with respect to 'aliens'] is limited only by the description of the subject matter. If a law of the Parliament can be characterized as a law with respect to aliens, it is valid whatever its terms, provided that the law does not infringe any express or implied prohibition in the Constitution[59].  Subject to any relevant constitutional prohibitions, Parliament can make laws imposing burdens, obligations and disqualifications on aliens which could not be imposed on members of the community who are not aliens.  In Polites v The Commonwealth[60] Latham CJ, after referring to the aliens power, said:  'The Commonwealth Parliament can legislate on these matters in breach of international law,

    
    

    taking the risk of international complications'.  In Pochi v Macphee[61] Gibbs CJ said that under s 51(xix) 'Parliament has power to make laws providing for the deportation of aliens for whatever reasons it thinks fit'."

    [58](1992) 176 CLR 1 at 64.

    [59]Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 222 per Williams J.

    [60](1945) 70 CLR 60 at 69.

    [61](1982) 151 CLR 101 at 106.

100. Thus, as long as a person falls within the description of "aliens", the power of the Parliament to make laws affecting that person is unlimited unless the Constitution otherwise prohibits the making of the law. But is the prosecutor an alien within the meaning of the Constitution?

101. The respondent claims not only that the prosecutor is an alien now but that he was an alien when he arrived in Australia.  She contends that, while British citizens once had a special status in Australia, the concept of "alien" encompasses people who have not taken out Australian citizenship.  The prosecutor, having been born in England of non-Australian parents and never having taken out citizenship in Australia[62], was a British citizen, who was a subject of and owed allegiance to the Queen of the United Kingdom.

     [62]Pochi v Macphee (1982) 151 CLR 101 at 109-110; Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 185; Kenny v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 330 at 345.

102. As an alternative, the respondent argues that, even if the prosecutor was a non-alien when he arrived in Australia, he had undoubtedly lost that status and become an alien by the time she made her decision in June 2000.  That was because of the evolutionary emergence of Australia as an independent sovereign state and the existence of a number of statutory developments to which I will refer in more detail below.  Whether or not the prosecutor was an alien at the time of his arrival does not matter according to the respondent because a non-alien can lose his or her status and become an alien.  This can occur by means of a change in the relationship between subject and sovereign, either at the instigation of the individual, or by a change in the nature of the sovereign.

103. Accordingly, the respondent argued that the prosecutor could be the subject of an exercise of the power conferred by s 501(3) of the Migration Act.

104. In response, the prosecutor contended that he could not be deported by cancelling his deemed visas under the power conferred by s 501 of the Migration Act because he is neither an immigrant nor an alien.  Consequently, he says that he cannot be the subject of a valid exercise of Commonwealth power that depends on the immigration and emigration power (s 51(xxvii)) or on the naturalization and aliens power (s 51(xix)).

105. It was common ground between the parties that the prosecutor could no longer be treated as an immigrant for the purpose of s 51(xxvii) of the Constitution because he had been absorbed into the Australian community when the respondent decided to cancel his visas. This Court has held that the immigration power ceases to apply to migrants once they become absorbed into the Australian community[63]. If s 501(3) applies to the prosecutor, it must be because of a head of constitutional power other than the immigration power, s 51(xxvii). The respondent relied only on s 51(xix), the power with respect to naturalization and aliens. The respondent did not seek to rely on the external affairs power (s 51(xxix)). If that power would support some aspects of the Migration Act, it could not in my opinion support legislation that would result in the deportation of a person who was not an alien. In response to the claim that he is an alien, the prosecutor says that British subjects, living in Australia, were not aliens in 1901 when the Constitution was enacted and are not aliens now. At all events, the prosecutor claims that they are not aliens if they arrived in Australia before 1984. In that year, the Parliament amended the Migration Act by deleting the definition of alien – which up to that time did not include a British subject – and substituting a definition of "non-citizen" who was defined as a person "who is not an Australian citizen"[64].

     [63]Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 64 per Knox CJ, 109-111 per Higgins J, 137 per Starke J; O'Keefe v Calwell (1949) 77 CLR 261; Koon Wing Lau v Calwell (1949) 80 CLR 533; R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168 at 175 per Barwick CJ; R v Director-General of Social Welfare (Vict); Ex parte Henry (1975) 133 CLR 369 at 373 per Gibbs J, 376-377 per Stephen J, 381-382 per Mason J, 383 per Jacobs J; Pochi v Macphee (1982) 151 CLR 101; Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 295 per Mason CJ. See also Ex parte Black; Re Morony (1965) 83 WN (Pt 1) (NSW) 45 and R v Governor of Metropolitan Gaol; Ex parte Molinari [1962] VR 156.

     [64]Australian Citizenship Amendment Act 1984 (Cth), s 4(2) (which came into operation on 1 May 1987).

     Interpreting a constitutional term

106. The Constitution is contained in a statute of the United Kingdom Parliament, and its meaning must be determined by the ordinary techniques of statutory interpretation. It must therefore be interpreted according to the ordinary and natural meanings of its text, read in the light of its history, with such necessary implications as derive from its structure[65].

     [65]McGinty v Western Australia (1996) 186 CLR 140 at 230.

365. Section 501 of the Act is as follows:

     "Refusal or cancellation of visa on character grounds

     Decision of Minister or delegate - natural justice applies

     (1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

     (2)The Minister may cancel a visa that has been granted to a person if:

     (a)the Minister reasonably suspects that the person does not pass the character test; and

     (b)the person does not satisfy the Minister that the person passes the character test.

     Decision of Minister - natural justice does not apply

     (3)      The Minister may:

     (a)      refuse to grant a visa to a person; or

     (b)cancel a visa that has been granted to a person;

     if:

     (c)the Minister reasonably suspects that the person does not pass the character test; and

     (d)the Minister is satisfied that the refusal or cancellation is in the national interest.

     (4)The power under subsection (3) may only be exercised by the Minister personally.

     (5)The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

     Character test

     (6)For the purposes of this section, a person does not pass the character test if:

     (a)the person has a substantial criminal record (as defined by subsection (7)); or

     (b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

     (c)having regard to either or both of the following:

     (i)the person's past and present criminal conduct;

     (ii)the person's past and present general conduct;

     the person is not of good character; or

     (d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

     (i)engage in criminal conduct in Australia; or

     (ii)harass, molest, intimidate or stalk another person in Australia; or

     (iii)vilify a segment of the Australian community; or

     (iv)incite discord in the Australian community or in a segment of that community; or

     (v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

     Otherwise, the person passes the character test.

     Substantial criminal record

     (7)For the purposes of the character test, a person has a substantial criminal record if:

     (a)      the person has been sentenced to death; or

     (b)the person has been sentenced to imprisonment for life; or

     (c)the person has been sentenced to a term of imprisonment of 12 months or more; or

     (d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

     (e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

     Periodic detention

     (8)For the purposes of the character test, if a person has been sentenced to periodic detention, the person's term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.

     Residential schemes or programs

     (9)For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:

     (a)      a residential drug rehabilitation scheme; or

     (b)a residential program for the mentally ill;

     the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.

     Pardons etc.

     (10)For the purposes of the character test, a sentence imposed on a person is to be disregarded if:

     (a)the conviction concerned has been quashed or otherwise nullified; or

     (b)the person has been pardoned in relation to the conviction concerned.

     Conduct amounting to harassment or molestation

     (11)For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:

     (a)it does not involve violence, or threatened violence, to the person; or

     (b)it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.

     Definitions

     (12)     In this section:

     court includes a court martial or similar military tribunal.

     imprisonment includes any form of punitive detention in a facility or institution.

     sentence includes any form of determination of the punishment for an offence."

366. It is also necessary to refer to s 501C which provides as follows:

     "Refusal or cancellation of visa - revocation of decision under subsection 501(3) or 501A(3)

     (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:

     (a)      refuse to grant a visa to a person; or

     (b)cancel a visa that has been granted to a person.

     (2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

     (a)would be the reason, or a part of the reason, for making the original decision; and

     (b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

     (3)As soon as practicable after making the original decision, the Minister must:

     (a)give the person, in the way that the Minister considers appropriate in the circumstances:

     (i)       a written notice that sets out the original decision; and

     (ii) particulars of the relevant information; and

     (b) except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10)) - invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

     (4)      The Minister may revoke the original decision if:

     (a) the person makes representations in accordance with the invitation; and

     (b) the person satisfies the Minister that the person passes the character test (as defined by section 501).

     (5)The power under subsection (4) may only be exercised by the Minister personally.

     (6)If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).

     (7)Any detention of the person that occurred during any part of the period:

     (a) beginning when the original decision was made; and

     (b) ending at the time of the revocation of the original decision;

     is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

     (8) If the Minister makes a decision (the subsequent decision) to revoke, or not to revoke, the original decision, the Minister must cause notice of the making of  the subsequent decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the subsequent decision was made.

     (9)If the person does not make representations in accordance with the invitation, the Minister must cause notice of that fact to be laid before each House of the Parliament within 15 sitting days of that House after the last day on which the representations could have been made.

     (10)The regulations may provide that, for the purposes of this section:

     (a)      a person; or

     (b)a person included in a specified class of persons;

     is not entitled to make representations about revocation of an original decision unless the person is a detainee.

     (11)A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7."

367. It is the prosecutor's submission that by the date of the respondent's decision, 30 June 2000, he had lost his status as an immigrant by effluxion of time and by absorption into the Australian community, and that therefore the power of the Parliament under s 51(xxvii) of the Constitution to affect the prosecutor has been lost. For this latter proposition the prosecutor relied on Ex parte Walsh and Johnson; In re Yates[401].  There Knox CJ said this[402].

     "It seems to me to follow from the opinions expressed in that case, that a person who has originally entered Australia as an immigrant may, in course of time and by force of circumstances, cease to be an immigrant and becomes a member of the Australian community.  He may, so to speak, grow out of the condition of being an immigrant and thus become exempt from the operation of the immigration power.  The power to make laws with respect to immigration would, no doubt, extend to enable Parliament either to prohibit absolutely or to regulate as it might think fit immigration into Australia, but, in my opinion, it does not extend to enable Parliament to prohibit or regulate anything which is not immigration, and the decision in Potter v Minahan[403] shows that, when the person seeking to enter the Commonwealth is a member of the Australian community, his entry is not within the power to make laws with respect to immigration."

     [401](1925) 37 CLR 36.

     [402](1925) 37 CLR 36 at 64-65. See also at 110-111 per Higgins J, 137 per Starke J.

     [403](1908) 7 CLR 277.

368. The prosecutor's submission on this aspect must be accepted. Indeed, ultimately it was conceded by the respondent to be correct. The prosecutor has been absorbed into the community. He is beyond the reach of the immigration power conferred upon the Parliament by the Constitution.

369. May, however, the relevant provisions insofar as the respondent seeks to apply them to the prosecutor, be sustained under s 51(xix) of the Constitution? This depends upon whether the prosecutor is an alien. The term "alien" was considered by this Court in Pochi v Macphee[404] when the Act did contain a definition which excluded a British subject from its operation. In that case, Gibbs CJ (with whom Mason J and Wilson J agreed) said this[405]:

     "[Section] 51(xix) provides ample power to enact legislation providing for the deportation of aliens. The question whether the immigration power would extend to the case of an immigrant who has become absorbed into the community - a question on which opinions in this Court have in the past been divided - does not arise when the immigrant is an alien.

     The argument was put in another way by submitting that the fact that the plaintiff has become totally absorbed into the Australian community meant that he is no longer an alien. This argument is impossible to maintain. It was well settled at common law that naturalization could only be achieved by Act of Parliament - even action by the Crown under the prerogative could not give an alien the status of a British subject … The common law rules as to alienage were no doubt feudal in origin, but there is nothing antiquated in the notion that a person's nationality is not changed by length of residence or by an intention permanently to remain in a country of which he is not a national. There are strong reasons why the acquisition by an alien of Australian citizenship should be marked by a formal act, and by an acknowledgement of allegiance to the sovereign of Australia. The Australian Citizenship Act validly so provides."

     [404](1982) 151 CLR 101.

     [405](1982) 151 CLR 101 at 111.

370. The prosecutor argues, in effect, that the Parliament has legislated with respect to a class of people, British subjects of whom the prosecutor is one, in such a way as to put them beyond the reach of the provisions under which the respondent was acting here: for example, by enacting s 93(1)(b)(ii) of the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act"), entitling the prosecutor to enrolment on the electoral rolls[406]. It is submitted that the legislation prescribed or otherwise provided, as contemplated by, for example, ss 8 and 30 of the Constitution, the qualifications for electors. Accordingly, it is argued, the prosecutor enjoys the status of one of the people of Australia, a person entitled to choose the members of the House of Representatives, a status inconsistent with that of an alien.

     [406]"93  Persons entitled to enrolment and to vote

371. The constitutional power to legislate with respect to aliens includes the power to affect their status, and that, the argument goes, is what the Electoral Act s 93(1)(b)(ii) has done in respect of the prosecutor by according him the status of an elector, thereby making him one of the people of Australia. Such a view is not inconsistent with what Barton J said in Ferrando v Pearce[407] :

     "It is trite law that any community is entitled to determine by its Parliament of what persons the community is to be composed. Hence sub-sec xix of sec 51 of the Constitution."

     [407](1918) 25 CLR 241 at 253.

372. Section 117 and, also perhaps s 34(ii), of the Constitution are relevant. For a long time, it could not seriously be doubted that a British subject of the Queen living permanently in Australia was also an Australian. The majority in Sue v Hill[408] accepted however, that the relationship between Australia and the United Kingdom (and their citizens) might alter by an evolutionary process[409], or by a process of transformation[410].  In  Nolan v Minister for Immigration and Ethnic Affairs[411] a majority of this Court said that "subject of the Queen" in s 117 of the Constitution by then meant subject of the Queen of Australia. In that case, Gaudron J said in a passage not affected by her Honour's dissent[412]:

     "…in the case of a community whose membership is conditional upon allegiance to a monarch, the status of alien corresponds with the absence of that allegiance.  At least this is so where the criterion for membership of the community remains constant."

     [408](1999) 199 CLR 462.

     [409](1999) 199 CLR 462 at 487-490 [50]-[60] per Gleeson CJ, Gummow and Hayne JJ.

     [410](1999) 199 CLR 462 at 526-529 [168]-[175] per Gaudron J.

     [411](1988) 165 CLR 178.

     [412](1988) 165 CLR 178 at 186.

373. In the same way as the evolutionary process, to which the majority in Sue v Hill[413] referred, transformed the meaning of the monarch as used in the Constitution, that process should also have transformed a subject of the monarch born in the United Kingdom - but having lived permanently as a subject of the monarch in this country for the period that this prosecutor has - into one of the people of Australia and a citizen of this country.

     [413](1999) 199 CLR 462.

374. The language of s 44 of the Constitution is specific and quite different from the language of ss 8, 24 and 30 of the Constitution, and deals with a different topic, membership of the Parliament. Sue v Hill does not therefore stand as an obstacle to the conclusion that the prosecutor is a citizen of this country.

375. The respondent relied upon the decision of the United States Circuit Court (Miller J) in Lanz v Randall[414].  But as Kirby J points out[415], the history of the parting of the ways between England and (what became) the United States of America is so different from ours that the authorities of the latter country have little or nothing to say about the relationship between Australia and the United Kingdom, and the citizens of the latter who became absorbed into the Australian community, and certainly those who did so before the enactment of the Australia Acts 1986 (Cth and UK).

     [414]14 Fed Cas 1131 (1876).  Miller J was an Associate Justice of the United States Supreme Court sitting as the Circuit Justice.

     [415]Reasons of Kirby J at [291]-[292].

376. I would not, with respect, regard the reasoning and decision in Nolan[416] as decisive of this case. There does not seem to have been comprehensive argument with respect to, and detailed consideration given by this Court to the collective effect and relevance of ss 8, 24 and 30 of the Constitution, although Gaudron J did refer in passing to the status of Mr Nolan as an elector[417].  But to the extent, if any, that it might stand as an obstacle, with the same anxiety but for the same reasons as are expressed by McHugh J[418], I would overrule it despite that it is a comparatively recent decision of six Justices[419].

     [416](1988) 165 CLR 178.

     [417](1988) 165 CLR 178 at 189.

     [418]Reasons of McHugh J at [89]-[91].

     [419]As I pointed out in Grincelis v House (2000) 201 CLR 321 at 337-338 [45]-[46], three Justices of this Court (Gibbs, Stephen and Mason JJ) in Griffiths v Kerkemeyer (1977) 139 CLR 161 effectively overruled the six Justices (Dixon CJ, McTiernan, Williams, Webb, Fullagar and Taylor JJ) who had decided Blundell v Musgrave (1956) 96 CLR 73 only twenty-one years earlier.

377. In the end, however, it is unnecessary to decide finally whether ss 8, 24 and 30 of the Constitution together with the provisions of the Electoral Act, so far as they apply to the prosecutor, have the effect of precluding his treatment as an alien, whether under the Act or otherwise or whether the Act which is directly concerned with the citizenship of migrants to this country has an entirely different effect, because of the reasoning and conclusions of Kirby J with which I agree[420].

     [420]Reasons of Kirby J at [281], [300]-[302], [308], [312].

378. I also agree with the reasons for judgment of McHugh J that the prosecutor, as a subject of the Queen resident in Australia at the end of the evolutionary process to which I have referred, became a subject of the Queen of Australia, and that the rights conferred on him by s 117 of the Constitution are protected[421].

     [421]Reasons of McHugh J at [131].

379. It is unnecessary for me to deal with all of the other grounds upon which the prosecutor relies. However, because of their importance and the lengthy argument advanced on them, I should state my views on some aspects of grounds 1.1, 1.2, 1.3 and 2.1.

380. I agree with Kirby J that there is no constitutional impediment to the appointment of assistant ministers to perform duties as ministers, and that s 501(4) of the Act may, and should here, be read as extending to an assistant minister[422].

     [422]Reasons of Kirby J at [323]-[325].

381. I largely agree with Kirby J[423] that however broad may be the jurisdiction to grant prerogative relief pursuant to s 75 of the Constitution, it will not generally permit this Court to substitute, for the satisfaction of the Minister, the satisfaction of judges who are not accountable to the Parliament or the people in the same way as is a Minister. If a Court might, in some situations do so, this is not one in which it may or should.

     [423]Reasons of Kirby J at [331].

382. It is for these reasons that I joined in the orders which have been pronounced by the Court.

     
     

(1)Subject to subsections (7) and (8) and to Part VIII, all persons:

…

(b)who are:

…

(ii)persons (other than Australian citizens) who would, if the relevant citizenship law had continued in force, be British subjects within the meaning of that relevant citizenship law and whose names were, immediately before 26 January 1984:

(A)     on the roll for a Division; or

(B)on a roll kept for the purposes of the Australian Capital Territory Representation (House of Representatives) Act 1973 or the Northern Territory Representation Act 1922;

shall be entitled to enrolment."