HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJJASON SHAW APPLICANT
AND
MINISTER FOR IMMIGRATION AND RESPONDENT
MULTICULTURAL AFFAIRSShaw v Minister for Immigration and Multicultural Affairs
[2003] HCA 72
9 December 2003
B99/2002ORDER
1. Answer the question reserved in the Case Stated as follows:
Question
Was s 501(2) of the Migration Act 1958 (Cth) within the legislative powers of the Commonwealth to the extent that it authorised the respondent to cancel the applicant's visa on 17 July 2001?
Answer
Yes.
2. Costs of the proceeding in the Full Court to be the costs in the matter in the course of which the case was stated.
Representation:
S J Hamlyn-Harris for the applicant (instructed by South Brisbane Immigration & Community Legal Service Inc)
D M J Bennett QC, Solicitor-General of the Commonwealth with M N Allars and B D O'Donnell for the respondent (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
Shaw v Minister for Immigration and Multicultural Affairs
Constitutional law (Cth) – Powers of the Parliament – Naturalisation and aliens – Applicant born in United Kingdom – Applicant entered Australia in 1974 – Applicant did not acquire Australian citizenship – Cancellation of applicant's visa by Minister – Whether power of cancellation validly extended to applicant – Whether applicant an "alien" for purposes of s 51(xix) of the Constitution – Whether applicant's statutory status as "British subject" at time of entry into Australia inconsistent with classification as "alien" – Whether applicant a "subject of the Queen" for purposes of s 117 of the Constitution.
Constitutional law (Cth) – Powers of the Parliament – Whether applicant subject to removal under power with respect to immigration – Whether applicant subject to removal under power with respect to external affairs – Whether implied nationhood power relevant.
Constitution, ss 51(xix), (xxvii), (xxix), 117.
Citizenship Act 1948 (Cth), s 7.
Migration Act 1958 (Cth), ss 15, 501.British Nationality Act 1948 (UK).
British Nationality and Status of Aliens Act 1914 (UK).
GLEESON CJ, GUMMOW AND HAYNE JJ. The principal issue raised by the Case Stated is whether the power of the Parliament conferred by s 51(xix) of the Constitution to make laws with respect to "naturalization and aliens" supported s 501(2) of the Migration Act 1958 (Cth) ("the Act") in the application of that provision to authorise the respondent ("the Minister") to cancel the applicant's visa on 17 July 2001. The issue should be resolved favourably to the Minister.
The power conferred by s 51(xix) supports legislation determining those to whom is attributed the status of alien; the Parliament may make laws which impose upon those having this status burdens, obligations and disqualifications which the Parliament could not impose upon other persons[1]. On the other hand, by a law with respect to naturalisation, the Parliament may remove that status, absolutely or upon conditions. In this way, citizenship may be seen as the obverse of the status of alienage.
[1]Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 77 ALJR 1 at 5‑7 [21]-[31], 13 [80], 18‑19 [114], 33 [209]-[210]; 193 ALR 37 at 41‑43, 53, 60‑61, 81‑82.
The applicant was born to British parents on 27 December 1972 in the United Kingdom of Great Britain and Northern Ireland ("the UK"). He arrived in Australia on 17 July 1974 and has not left Australia since that date. The applicant has not become an Australian citizen pursuant to the Australian Citizenship Act 1948 (Cth) ("the Citizenship Act") and has not applied for Australian citizenship. He is not eligible to vote in this country.
That the applicant and his parents may have entered Australia under a Commonwealth programme of assisted passages, a factual matter as to which the Case Stated is silent, would not be inconsistent with his alien status.
The applicant was regarded by the Minister as the holder of a transitional (permanent) visa which, unless revoked according to law, permitted him to remain in Australia indefinitely. However, immediately prior to 17 July 2001, the applicant was deemed to have a "substantial criminal record" within the meaning of s 501(7) of the Act.
By reason of his criminal record, the applicant did not pass the "character test" specified in s 501(6). On 17 July 2001, the Minister cancelled the applicant's visa in exercise of a power under s 501(2) which was enlivened by the applicant's failure to pass the "character test". That cancellation, by force of s 15, rendered the applicant an "unlawful non‑citizen" to whom there applied the provisions respecting removal and deportation in Pt 2 of the Act. The term "non‑citizen" is defined in s 5(1) of the Act as meaning "a person who is not an Australian citizen".
In Cunliffe v The Commonwealth[2], Toohey J, referring to Nolan v Minister for Immigration and Ethnic Affairs[3], said that:
"an alien can generally be defined as a person born out of Australia of parents who were not Australian citizens and who has not been naturalized under Australian law or a person who has ceased to be a citizen by an act or process of denaturalization."
That statement would lead to the classification of the applicant as an alien at birth, when he entered Australia and at all times since.
[2](1994) 182 CLR 272 at 375.
[3](1988) 165 CLR 178 at 183‑185.
However, the applicant contends that he was not an alien when he entered Australia and that nothing that occurred subsequently has placed him within the reach of the aliens power. The reasoning relied upon for this attribution of non‑alien status depends upon a particular view of the relationship between this country and the UK at the time of the applicant's birth in 1972.
In Pochi v Macphee[4], Gibbs CJ said that the Parliament could not expand the power under s 51(xix) to include persons "who could not possibly answer the description of 'aliens' in the ordinary understanding of the word". The case presented by the applicant fixes upon the thought expressed in that statement. The "ordinary understanding" of the term "alien", correctly, is not said to be at large. Its appropriate use in Australia must have regard to the circumstances and conditions applicable to the individual in question. The applicant contends that the relevant circumstances and conditions include the political and constitutional relationship between the UK and Australia at the time of his birth and thereafter. That may be accepted, with the caveat that the relationship also is to be understood in the light of various provisions of the Constitution to which further reference will be made.
[4](1982) 151 CLR 101 at 109.
However, contrary to the submissions for the applicant, the result of such a consideration of his position is his classification as an alien for the purposes of s 51(xix) of the Constitution. Much of the applicant's argument proceeded from the premise that, because the expression "British subject" could be applied to him, he was not an alien. That premise is flawed. First, "British subject" is not a constitutional expression; it is a statutory expression. Secondly, and more fundamentally, if "British subject" was being used as a synonym for "subject of the Queen", an expression which is found in the Constitution, that usage would assume that there was at the time of federation, and there remains today, a constitutional and political unity between the UK and Australia which 100 years of history denies.
The status of subjects of the Crown derived from the mediaeval common law in England. The term "British subject" seems first to have appeared at the time of the Union with Scotland. Article IV of the Articles of Union ensured trade and navigation rights to "all the subjects of the United Kingdom of Great Britain"[5]. Thereafter, the British Nationality and Status of Aliens Act 1914 (UK) ("the 1914 UK Act") deemed to be "natural-born British subjects" those "born within His Majesty's dominions and allegiance" (s 1(1)). Hence the statement[6] that the 1914 UK Act "was based on the conception of a common British nationality of all subjects of the Crown throughout the Commonwealth and Empire, which had grown out of, and perpetuated, the common law doctrine of allegiance to the King".
[5]See Union with Scotland Act 1706, 5 Anne c 8.
[6]Halsbury's Laws of England, 3rd ed, vol 1, par 1023.
In their commentary on the covering clauses of the Constitution, Quick and Garran rightly pointed out that[7]:
"[t]he relation of the Commonwealth to the Empire, and the relation of the Federal and State Governments of the Commonwealth to one another, can hardly be appreciated apart from a sound study of the principle of sovereignty."
They distinguished between "legal sovereignty" (as, for example, the sovereignty of the British Parliament), "political sovereignty" (the sovereignty of the people), and "titular sovereignty" (the sovereignty of the Queen). As H W R Wade was later to point out, in 1955[8], there comes a point in debate about "sovereignty" and related concepts where the legal and the political intersect. As long ago as 1935, in British Coal Corporation v The King[9], Viscount Sankey LC said of the possibility that the British Parliament might repeal the Statute of Westminster's provisions recognising or giving legislative independence to the dominions that it was "theory" and had "no relation to realities". The "realities" to which Lord Sankey referred were the political realities of the separation of the dominions from the UK which had occurred and which found reflection in the Statute of Westminster. These political realities informed the relevant body of law and are reflected in the later observation by Sir Robert Menzies that constitutional law combines elements of history, statutory interpretation and political philosophy[10].
[7]The Annotated Constitution of the Australian Commonwealth, (1901) at 324‑328.
[8]"The Basis of Legal Sovereignty", (1955) Cambridge Law Journal 172.
[9][1935] AC 500 at 520.
[10]See Plaintiff S157 v The Commonwealth (2003) 77 ALJR 454 at 475 [108]; 195 ALR 24 at 52‑53.
In Kirmani v Captain Cook Cruises Pty Ltd [No 1][11], Gibbs CJ said of the Statute of Westminster that:
"[i]ts principal purpose was to give to the Dominions (Canada, Australia, New Zealand, the Union of South Africa, the Irish Free State and Newfoundland) that autonomy and equality of status with each other and with the United Kingdom which had been recognized by the Balfour Declaration of 1926. By a process of gradual development, the status of the Dominions had changed; as a matter of constitutional practice they had come to be regarded, not as colonies, but as sovereign communities."
[11](1985) 159 CLR 351 at 363.
The constitutional term "subject of the Queen" must be understood in the light of the development and evolution of the relationship between Australia and the UK and between the UK and those other countries which recognise the monarch of the UK as their monarch. In particular, the expression "subject of the Queen" can be given meaning and operation only when it is recognised that the reference to "the Queen" is not to the person but to the office. That recognition necessarily entails recognition of the reality of the independence of Australia from the UK.
At the time of his birth, the applicant was, by force of the UK statute then in force, the British Nationality Act 1948 (UK) ("the 1948 UK Act") (s 1(1))[12], a "citizen of the [UK] and Colonies" and "by virtue of" that citizenship he had "the status of a British subject". This status was the creation of and derivative from UK statute law, because its existence was dependent upon the possession of UK citizenship, itself a statutory concept.
[12]The 1914 UK Act had been relevantly repealed by s 34(3) of the 1948 UK Act. This in turn was repealed, so far as is material, by the British Nationality Act 1981 (UK), s 52(8).
In Australia, by virtue of s 7 of the Citizenship Act, the applicant, "by virtue of" his citizenship of the UK, was classified as a "British subject"[13]. This Australian legislative status conferred on such persons certain advantages under other Australian statutes, such as those dealing with the franchise and the issue of passports[14].
[13]Section 7 stated:
"(1) A person who, under this Act, is an Australian citizen or, by an enactment for the time being in force in a country to which this section applies, is a citizen of that country shall, by virtue of that citizenship, be a British subject.
(2) The countries to which this section applies are the following countries, namely, the United Kingdom and Colonies, Canada, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon."
[14]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 440‑441 [148]-[149], 442 [152].
The passage of the Citizenship Act and the 1948 UK Act and legislation in other Commonwealth countries followed negotiations between the governments concerned. The new arrangements reflected significant changes in the Imperial system which had taken place since federation. In Halsbury, the point was made as follows[15]:
"The concept of a common British nationality as the only nationality known within the Commonwealth was difficult to reconcile with the complete legislative independence of the self‑governing countries within the Commonwealth and tended to lead to complications in both the domestic and the international spheres."
[15]Halsbury's Laws of England, 3rd ed, vol 1, par 1023.
One of the objectives of the new arrangements was to clarify the position with regard to diplomatic protection and to enable governments when making treaties with other countries to define with precision those who were the "persons belonging to its country and on whose behalf it [was] negotiating"[16].
[16]British Nationality Bill, 1948, Summary of Main Provisions, Cmd 7326, par 7.
From the perspective of the UK, the House of Lords in R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Ross-Clunis[17] described the changes made in 1948 as follows:
"The Act of 1948 introduced a new nationality regime the broad effect of which was that all British subjects were to become citizens either of the United Kingdom and Colonies or of one of the fully independent countries within the Commonwealth which are named in section 1(3) and which had then already introduced or were about to introduce their own separate citizenship laws."
Australia was one of the countries named in s 1(3) of the 1948 UK Act.
[17][1991] 2 AC 439 at 444.
It may be that there never was a single nationality law throughout the British Empire[18]. In 1901, the Home Office in the UK established an inter‑departmental committee to consider the state of the law of naturalisation in the British Empire[19]. That committee pointed to a number of difficulties that followed from disparate and local laws governing naturalisation throughout the British Empire[20]. These matters were taken up at Imperial conferences in 1902, 1907 and 1911, and in 1914 the UK Parliament enacted the 1914 UK Act to deal with some of the problems that were seen to have emerged. Even under that Act, however, the naturalising power was to be exercisable by the self‑governing dominions without reference to the UK[21]. So much, of course, was entirely consistent with the provision of s 51(xix) of the Constitution by which the Parliament of the Commonwealth had power with respect to naturalisation and aliens. The 1914 UK Act and the 1948 UK Act both assumed that questions of naturalisation were within the powers of the dominion legislatures. The understanding of the expression "subject of the Queen", and the light which that understanding casts on the ambit of the aliens power cannot, then, attribute significance to the adoption of the expression "British subject" in UK legislation. Rather, "subject of the Queen", with its implicit reference to notions of sovereignty, must recognise that at least by 1948 the subjects of the Queen to which reference was made were subjects of the monarch in right of Australia, not subjects of the monarch in right of the UK.
[18]Potter v Minahan (1908) 7 CLR 277 at 304‑305; Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 439‑440 [146]-[147]; Parry, Nationality and Citizenship Laws of The Commonwealth and of The Republic of Ireland, (1957) at 82.
[19]Parry, Nationality and Citizenship Laws of The Commonwealth and of The Republic of Ireland, (1957) at 81.
[20]Parry, Nationality and Citizenship Laws of The Commonwealth and of The Republic of Ireland, (1957) at 81‑82.
[21]s 9.
The Citizenship Act, then styled the Nationality and Citizenship Act 1948 (Cth), came into force on 26 January 1949. Undoubtedly, to a significant degree, that statute depended upon the aliens power. Under UK law, Irish citizens ceased to be British subjects on 1 January 1949[22]. Special provision, of a favourable nature, was made in s 8 of the Citizenship Act with respect to Irish citizens. In addition, Irish citizens might acquire Australian citizenship by following the procedures and conditions of s 12 which were less rigorous than those stipulated by s 15 for other aliens. Further, the statute created its own class of aliens which was narrower than the class of what might be called "constitutional aliens". This is apparent from the terms of the definition in s 5(1) of "alien" as meaning "a person who is not a British subject, an Irish citizen or a protected person" (emphasis added). It also should be noted that the "protected persons" spoken of included those in British protectorates who were aliens in the ordinary sense of the term but were taken out of that category for the purposes of the legislation[23].
[22]Kenny v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 330 at 341.
[23]cf Halsbury's Laws of England, 3rd ed, vol 1, par 1025.
The classification by s 7 of the Citizenship Act of the citizens of the UK, Canada, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon, as British subjects in Australian law by virtue of that citizenship, also was an exercise of the legislative power with respect to aliens. The new statutory status rendered those persons a class of aliens with special advantages in Australian law, as mentioned above. It can hardly be said that, as the relevant political facts and circumstances stood in 1948, those citizens could not possibly answer the description of aliens in the ordinary understanding of that word.
The Constitution was, to use Isaacs J's expression[24], made not "for a single occasion", but for "the continued life and progress of the community". The Constitution took effect at a time when "the Crown" was said to be "indivisible" and when the common law notion of allegiance to that "Crown" informed the statutory use of the term "British subject". But, as was explained in Sue v Hill[25], in 1900 the term "the Crown" was used in constitutional theory in several distinct senses. In particular, the expression "the Crown in right of ..." was used to distinguish between the newly created governmental units within the Empire. Harrison Moore made the point[26] that, in the statutes establishing the Canadian and Australian federations, the Imperial Parliament had "unquestionably treated these entities as distinct persons". Further, as Windeyer J later observed[27], the words of the Constitution were to be read having in mind matters and circumstances in one sense external to Australia but in another bearing upon the meaning of expressions in the Constitution. The developments in Imperial relations after the commencement of the Constitution are an obvious example.
[24]The Commonwealth v Kreglinger & Fernau Ltd and Bardsley (1926) 37 CLR 393 at 413.
[25](1999) 199 CLR 462 at 497‑503 [83]-[94].
[26]"The Crown as Corporation", (1904) 20 Law Quarterly Review 351 at 359.
[27]Bonser v La Macchia (1969) 122 CLR 177 at 223‑224.
The development of the "autonomous Communities" recognised by the Imperial Conference of 1926[28] proceeded by steps and over periods which had different consequences for the reading of various provisions of the Constitution. To ask when Australia actually achieved complete constitutional independence or other questions phrased in similar terms is to assume a simple answer to a complex issue, rather than to attend to the particular matter arising under the Constitution or involving its interpretation which has arisen for decision. In that regard, Gaudron J said in Sue v Hill[29]:
"To acknowledge that, in some constitutional provisions, some words and phrases are capable of applying to different persons or things at different times is not to change the meaning of those provisions. It is simply to give them their proper meaning and effect."
[28]Summary of Proceedings, Cmd 2768 at 14. See also R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Indian Association of Alberta [1982] QB 892 at 916‑917; Kirmani v Captain Cook Cruises Pty Ltd [No 1] (1985) 159 CLR 351 at 363, 373‑374, 398‑399, 422.
[29](1999) 199 CLR 462 at 526 [167].
It will be recalled that the provisions of the Statute of Westminster fell short of achieving a full measure of legal autonomy for Australia, notably because s 2 thereof did not apply to State legislation nor to State legislatures[30]. At times when elements of the UK government still participated or had the power to participate in Australian legislative, executive and judicial affairs, in particular until 1986 in the affairs of the States, it was difficult to classify the UK as a "foreign power" within the meaning of s 44(i) of the Constitution. The decision in Sue v Hill[31] proceeded on that footing.
[30]Kirmani v Captain Cook Cruises Pty Ltd [No 1] (1985) 159 CLR 351 at 373‑374, 413‑414.
[31](1999) 199 CLR 462 at 490 [59], 528 [173].
On the other hand, s 34 of the Constitution acknowledges the possibility of change in the relationship between the UK on the one hand and Australia on the other. It does so by providing that the Parliament may alter the qualifications for elections so as to eliminate any requirement that candidates "be a subject of the Queen, either natural-born or for at least five years naturalised under a law of the United Kingdom". Further, in Sue v Hill[32], Gaudron J remarked:
"Of greater significance is that, by s 51(xxxviii) of the Constitution, the Commonwealth has power to legislate with respect to 'the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia'. It was pursuant to s 51(xxxviii) that the Parliament of the Commonwealth enacted the Australia Act 1986 (Cth)".
[32](1999) 199 CLR 462 at 525 [164].
Once it be decided that the text of the Constitution contemplates changes in the political and constitutional relationship between the United Kingdom and Australia, it is impossible to read the legislative power with respect to "aliens" as subject to some implicit restriction protective from its reach those who are not Australian citizens but who entered Australia as citizens of the UK and colonies under the 1948 UK Act. It was unnecessary to reach that conclusion in Re Patterson; Ex parte Taylor[33], but it should now be reached.
[33](2001) 207 CLR 391 at 470 [240].
References in argument to the statutory status of a "British subject" are apt to obscure the undoubted truth that, by 1948, the Imperial Crown, indivisible in nature, with an undivided allegiance, was no longer apparent, whether in this country or the UK. Such references also obscure the realisation that, in the pre‑1948 law, the status of a natural-born British subject was statute based, particularly in the 1914 UK Act. There never was a common law notion of "British subject" rendered into an immutable element of "the law of the Constitution". This is so, whether that term be as understood to Diceyeans in the UK or to lawyers in this country.
Moreover, it is readily apparent from a consideration of Joyce v Director of Public Prosecutions[34], which was decided before the 1948 legislation, that "[a]llegiance and alienage are not mutually exclusive"[35]. Thus aliens may owe a measure of allegiance, but aliens they nevertheless continue to be.
[34][1946] AC 347. See Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 77 ALJR 1 at 20‑21 [125]-[130]; 193 ALR 37 at 63‑65.
[35]Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 77 ALJR 1 at 6 [29]; 193 ALR 37 at 43.
It remains to refer to s 117 of the Constitution. This operates in favour of "[a] subject of the Queen, resident in any State". The Citizenship Act no longer provides for any status of "British subject"[36]. Nor has the law of the UK, since 1 January 1983, used the term as a status enjoyed in relation to citizenship[37]. Does this mean that, like the expression in the Schedule to the Constitution, "the United Kingdom of Great Britain and Ireland", s 117 is to be read as it would have been read in 1901? The answer must be "no", lest the section be deprived of any useful operation. The reading of the text should accommodate the evident purpose of s 117 in present conditions. That purpose is the protection of citizens (but not aliens) resident in one State against the relevant disability or discrimination in another State.
[36]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 442‑443 [153].
[37]Halsbury's Laws of England, 4th ed reissue, vol 4(2), par 9.
The conclusion reached is that the applicant entered Australia as an alien in the constitutional sense. Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te[38] establishes that, this being so, he did not lose that status by reason of his subsequent personal history in this country. Upon the cancellation of his visa, he became an "unlawful non‑citizen" within the meaning of the Act.
[38](2002) 77 ALJR 1; 193 ALR 37.
This case should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised. The scope of any earlier operation of the power does not fall for consideration. However, it may be observed that, like the other powers of the Parliament, s 51(xix) is not to be given any meaning narrowed by an apprehension of extreme examples and distorting possibilities of its application in some future law[39].
[39]Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 380‑381 [87]-[88]; Egan v Willis (1998) 195 CLR 424 at 505 [160]; Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 492 [16].
In argument, various submissions were made as to the authority to be accorded the decision in Patterson. A plain ground for the making of the orders absolute in that case was the constructive failure by the Minister to exercise jurisdiction. It is with respect to the other ground, concerned with the scope of the aliens power, that difficulty is encountered. The determination of the proposition for which Patterson is authoritative on that subject is particularly of significance for other Australian courts.
Long v Minister for Immigration and Multicultural and Indigenous Affairs[40] illustrates the inconvenience and lack of useful result from Patterson. In Long, French J determined[41] that there was no binding principle in Patterson which assisted him to a decision in the instant case. His Honour decided the case by reference to the "minimum position" to be distilled from the various majority judgments in Patterson. French J said[42]:
"I would add the observation that the more recent the date upon which it was possible for a person who was not an Australian citizen to be other than an 'alien' for constitutional purposes, the more recent the date upon which it would have to be said that Australia had not achieved independent nationhood in all its aspects."
[40][2002] FCA 1422.
[41][2002] FCA 1422 at [40].
[42][2002] FCA 1422 at [40].
In Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te[43], four members of the Court agreed that there was no single strain of reasoning in the majority judgments in Patterson which contains a binding statement of constitutional principle and that there were differing views in the majority as to what were the facts material to the decision. One of those four Justices, McHugh J, concluded that Patterson had no precedent value beyond its own facts[44].
[43](2002) 77 ALJR 1 at 4‑5 [17]-[19], 14‑15 [86]-[88], 22 [136], 33 [211]; 193 ALR 37 at 40‑41, 55, 66, 82.
[44](2002) 77 ALJR 1 at 15 [87]; 193 ALR 37 at 55.
Any consideration of the significance to be attached to Patterson must involve the determination whether Patterson was effective to take the first step of overruling the earlier decision in Nolan v Minister for Immigration and Ethnic Affairs[45]. In our view, the Court should be taken as having departed from a previous decision, particularly one involving the interpretation of the Constitution, only where that which purportedly has been overthrown has been replaced by some fresh doctrine, the elements of which may readily be discerned by the other courts in the Australian hierarchy. On that approach to the matter, and as Long indicates, the decision in Patterson plainly fails to pass muster.
[45](1988) 165 CLR 178.
The reasoning in this judgment upon the substantive question proceeds upon that footing respecting Patterson. It develops but is designedly harmonious with the reasoning in Nolan. In particular, in the joint judgment of six members of the Court in Nolan, it was said[46]:
"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. A separate Australian citizenship was established by the Nationality and Citizenship Act 1948 (Cth), now known as the Australian Citizenship Act 1948. ... 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'."
[46](1988) 165 CLR 178 at 184.
For more abundant caution, the Solicitor-General of the Commonwealth, who appeared for the Minister, sought leave to re‑open Patterson itself. The controlling principles recently were considered in Esso Australia Resources Ltd v Federal Commissioner of Taxation[47], with particular reference to the adoption in John v Federal Commissioner of Taxation[48] of what had been said by Gibbs CJ in The Commonwealth v Hospital Contribution Fund[49].
[47](1999) 201 CLR 49 at 71 [55], 101‑106 [152]-[167].
[48](1989) 166 CLR 417 at 438‑439.
[49](1982) 150 CLR 49 at 55‑58.
The decision in Patterson does not rest upon a principle carefully worked out in a significant succession of decisions; the contrary, as we have indicated, is the case. Secondly, the treatment of the aliens power in Patterson was not necessary for the decision, because there was a clear alternative basis for the decision. Thirdly, the inconvenience flowing from the existence of Patterson is indicated by reference to Long. Finally, the Minister has moved as quickly as may be in this Court to obtain a reconsideration of Patterson. That case henceforth should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister.
The question reserved for the Full Court should be answered "yes". The costs of the proceeding in the Full Court should be the costs in the matter in the course of which the case was stated.
McHUGH J. The question in this case is whether the Migration Act 1958 (Cth) ("the Act") can constitutionally authorise the Minister for Immigration and Multicultural Affairs to deport a British citizen who has lived permanently in Australia since 1974 but who has never become an Australian citizen. In my opinion, although the Act in terms gave the Minister power to deport such a person, the Act was invalid in so far as it purported to apply to him.
Statement of the case
Jason Shaw, the applicant, migrated to Australia with his parents in 1974. He was then two years of age and a citizen of the United Kingdom. Along with his parents, he was granted a permanent entry permit. Under reg 4 of the Migration Reform (Transitional Provisions) Regulations (Cth), after 1 September 1994 the permanent entry permit held by the applicant continued in effect as a transitional (permanent) visa that permitted the applicant to remain in Australia indefinitely. He has never left Australia since arriving in 1974. However, he has never become an Australian citizen.
Section 501(2) of the Act authorises the Minister to cancel a visa. He may do so if he reasonably suspects that the holder of the visa does not pass the character test as defined in s 501(6) of the Act and the holder does not satisfy the Minister that he or she passes the character test. Section 501(6) provides that, for the purposes of s 501, a person does not pass the character test if that person has a substantial criminal record as defined by s 501(7). Section 501(7) defines a substantial criminal record to include a person who has been sentenced to a term of imprisonment of 12 months or more. Acting under the power conferred by s 501, the Minister has revoked the applicant's visa.
Since the age of 14, the applicant has followed a life of crime. He has been convicted on numerous occasions for offences that include stealing, breaking and entering and unlawfully using a motor vehicle. In 1998 he was sentenced to five years imprisonment for property offences; in the same year he was sentenced to two and a half years imprisonment for offences concerning drugs.
In July 2001, the Minister cancelled the applicant's visa on the ground that he had a substantial criminal record and did not pass the character test as defined by s 501(6).
Section 501 does not apply to British citizens who arrived in Australia before 3 March 1986
There are only two heads of federal constitutional power that could arguably extend the operation of s 501 to a person such as the applicant who is a British citizen and who arrived in Australia in 1974. The first is the immigration power; the second is the aliens power[50]. A long line of authority establishes that the immigration power does not authorise the Parliament to make laws with respect to persons who have immigrated to Australia, made their permanent homes here and become members of the Australian community[51]. Accordingly, the immigration power did not authorise the enactment of s 501 in so far as it purports to apply to the applicant.
[50]Section 51 of the Constitution states:
"The Parliament shall ... have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
...
(xix) ... aliens:
...
(xxvii) Immigration and emigration:
..."
[51]The line of cases commences with Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36.
The aliens power, however, gives the Parliament greater power over immigrants than the immigration power. In Nolan v Minister for Immigration and Ethnic Affairs[52], this Court held that any immigrant who has not taken out Australian citizenship is an alien for the purpose of s 51(xix) of the Constitution. On that view of the aliens power, the Parliament can legislate for the deportation of persons who are British citizens and have been permanent residents of Australia for many years. In Nolan, the Court upheld an order of the Minister deporting Nolan, a citizen of the United Kingdom who had lived permanently in Australia since 1967 but who had not taken out Australian citizenship.
[52](1988) 165 CLR 178.
In Re Patterson; Ex parte Taylor[53], however, a majority of this Court held that Nolan should be overruled in so far as it held that all British citizens living in Australia who had not taken out Australian citizenship were aliens for the purpose of the Constitution. Taylor was a British citizen who had arrived in Australia in 1966 and had since lived here permanently. However, he had not taken out Australian citizenship. A majority of the Court held that s 501 of the Act could not constitutionally authorise the deportation of Taylor.
[53](2001) 207 CLR 391.
As I pointed out in Re Minister for Immigration and Multicultural Affairs; Ex parte Te[54], Re Patterson has no ratio decidendi. The four majority Justices were Gaudron, Kirby and Callinan JJ and myself. Gaudron J held that Taylor was a member of the body politic that constituted the Australian community and that British citizens who were members of that body politic and had been in Australia before 1987[55], were not aliens within the meaning of the Constitution. Kirby J held that Taylor was not an alien when he arrived in Australia, that he "had been absorbed into the people of the Commonwealth"[56] and that the Parliament could not retrospectively declare him to be an alien. I held that British immigrants who settled in Australia before 1973 were subjects of the Queen of Australia and could not be "aliens" for the purpose of the Constitution. I selected 1973 as the earliest date on which the constitutional power to legislate with respect to aliens could apply to British immigrants. I did so because 1973 was the year in which the Parliament enacted the Royal Style and Titles Act 1973 (Cth). But I expressed the view that the relevant date "maybe later"[57]. Callinan J agreed with the reasoning of both Kirby J and myself.
[54](2002) 77 ALJR 1 at 14 [86]; 193 ALR 37 at 55.
[55]Until 1987, s 5 of the Australian Citizenship Act 1948 (Cth) defined "alien" to mean "a person who [was] not ... a British subject ... an Irish citizen or a protected person".
[56](2001) 207 CLR 391 at 492 [304].
[57](2001) 207 CLR 391 at 436 [135].
Although Re Patterson has no ratio decidendi, "it still has precedential authority in respect of circumstances that 'are not reasonably distinguishable from those which gave rise to the decision[58]'." It is not possible, however, to say that the present case is not reasonably distinguishable from Re Patterson. The only material fact in Re Patterson that was common to all majority judgments was that Taylor had arrived in Australia in 1966. Re Patterson is therefore only an authority for the proposition that a British citizen is not an alien if that person arrived in Australia in or before 1966 and has lived here permanently since that time. Even if the relevant year be extended to 1973, it does not assist the applicant in this case: he did not migrate to Australia until 1974. Accordingly, the applicant cannot rely on Re Patterson as an authority that supports his claim that the Act cannot constitutionally authorise the Minister to revoke his visa and render him liable to deportation.
[58](2002) 77 ALJR 1 at 15 [87]; 193 ALR 37 at 55.
Despite Re Patterson having no precedential value for the purpose of this case, I remain convinced that Re Patterson was correctly decided. Having read the reasons of Callinan J, I am also convinced that his Honour is correct in holding[59] that the evolutionary process by which the term "subject of the Queen" in s 117 of the Constitution became "subject of the Queen of Australia" was not completed until 3 March 1986[60]. Until that date, therefore, Australians, born or naturalised, and British citizens permanently residing in Australia owed their allegiance to the "Crown of the United Kingdom of Great Britain and Ireland"[61]. Until that date, they were subjects of the Queen of the United Kingdom of Great Britain and Ireland for the purpose of s 117 of the Constitution, and were entitled to the protection of that section. When the evolutionary process ended, British citizens then permanently residing in Australia became subjects of the Queen of Australia by the same evolutionary process that had transformed the Queen of the United Kingdom of Great Britain and Ireland into the Queen of Australia. For the reasons that I gave in Re Patterson, subjects of the Queen of Australia are not aliens for the purpose of the Constitution.
[59]Reasons of Callinan J at [177].
[60]With the passing of the Australia Act 1986 (UK) and the Australia Act 1986 (Cth).
[61]Preamble to the Constitution.
It follows that the applicant, who arrived in Australia in 1974 and was permanently living in Australia on 3 March 1986, is a subject of the Queen of Australia. He is not an alien within the meaning of s 51(xix) of the Constitution. The Parliament of the Commonwealth has no power to authorise his deportment from this country.
Order
The question reserved in the case stated should be answered "No", and the case should be remitted to a single judge to be determined consistently with that answer. The Minister should pay the applicant's costs in the Full Court.
KIRBY J. In Calvin's Case[62], Sir Edward Coke CJ held that a man born in Scotland after the accession of King James I to the English throne was not an "alien" to England. He appealed to many authorities. One of them involved Saul of Tarsus, later the Biblical Apostle St Paul[63]. Facing punishment for preaching his beliefs, Paul appealed to his Roman nationality. Although a Jew, he had been born a Roman citizen. By Roman law, he was entitled to be freed upon payment of a sum of money. Coke CJ remarked that "such a plea as is now imagined against Calvin might have made St Paul an alien to Rome"[64].
[62](1608) 7 Co Rep 1a [77 ER 377]; cf Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 429 [116].
[63]Calvin's Case (1608) 7 Co Rep 1a at 24a [77 ER 377 at 406].
[64]Calvin's Case (1608) 7 Co Rep 1a at 24a [77 ER 377 at 406].
Just as the Emperor of Rome "had several ligeances for every several kingdom and country under his obedience"[65] so, when the people of Australia "agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution", they did so as "subjects of the Queen". Their status as British subjects defined their nationality. It was no more possible in law to treat a person, wherever born with allegiance to that Crown, as "alien" than it was to treat St Paul as an alien to Rome.
[65]Calvin's Case (1608) 7 Co Rep 1a at 24a [77 ER 377 at 406].
Mr Jason Shaw (the applicant) is a man far from sainthood. He was born in the United Kingdom in 1972. In 1974 he arrived in Australia with his parents as an immigrant. It was common ground that in 1901 he could not possibly have fallen within the "aliens" power conferred on the Federal Parliament by the Constitution[66]. Yet now the Minister for Immigration and Multicultural Affairs ("the Minister") asserts that the Minister is entitled under the Migration Act 1958 (Cth) ("the Act") to deport the applicant from Australia. The Minister seeks to do so, in substance, because the applicant has committed criminal offences in Australia which constitute a "substantial criminal record" within the Act[67]. The provisions upon which the Minister relies were enacted well after the applicant's arrival here[68].
[66]Constitution, s 51(xix).
[67]The Act, s 501(7).
[68]See Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 404-406 [23]-[27], 410 [42], 483-487 [277]-[286].
The applicant challenges the power of the Minister to act in this way. He asserts that, in so far as subsequently adopted provisions of the Act[69], and of subordinate legislation[70], made under federal law[71], purport to apply to him, they exceed the law-making power of the Commonwealth derived from the Constitution.
[69]The Act, s 501(2), (6) and (7).
[70]Migration Reform (Transitional Provisions) Regulations (Cth), reg 4.
[71]Migration Reform Act 1992 (Cth).
The Minister disputes the applicant's proposition. Necessarily, the Minister accepts that the consequence of the applicant's removal from Australia would be to part him from the only country he has known, in which he was educated and has grown up since infancy, from the family that brought him here and from his two children, each of them Australian citizens, born in Australia respectively in 1992 and 1996. This Court is not concerned with the merits of the Minister's decision, simply with its constitutional validity. The Minister points to a number of sources of constitutional power to sustain the validity of the laws under which the action is proposed.
Principally, the Minister contends that the applicant is an "alien" and thus subject to laws made under that constitutional head of legislative power[72]. The Minister also argues that the laws are supported by the federal legislative powers with respect to "immigration"[73] and "external affairs"[74]. Sotto voce, the Minister suggests that the laws are also sustained by the implied federal power to make laws concerning Australia's nationhood.
[72]Constitution, s 51(xix).
[73]Constitution, s 51(xxvii).
[74]Constitution, s 51(xxix).
The applicant is entitled to succeed. The purported actions of the Minister are not sustained by any valid federal law. No more than if he were now an Australian citizen with a criminal record can the applicant be expelled from Australia on that ground. He is a member of the Australian community. He has been so since his arrival. Although not naturalised and thus not, as such, an Australian citizen, he was not on arrival, and could not thereafter lawfully be made, an "alien". As well, he has passed beyond the process of "immigration". His expulsion from Australia is an internal and not an external affair to this country. No implication of the Constitution supports the challenged laws in his case. The Case Stated must be answered accordingly. In answering it, this Court should not use chance happenings affecting its composition to change its recent statements of the governing law.
The facts and applicable legislation
A fuller statement of the facts appears in other reasons[75]. Also appearing there are details of the legislation, under (or pursuant to) which the Minister has purported to alter the status of the applicant[76]. When, in 1974, at the age of two years, the applicant arrived in Australia, he was granted a permanent entry permit[77]. That permit immediately recognised the special nationality status of the applicant and his parents at that time. Such special status derived from the fact that the applicant and his parents were subjects of the Queen. Whereas under the Act, as it then stood, the Minister could, in the Minister's absolute discretion, cancel a temporary entry permit[78], issued to persons having a different nationality status, the Minister enjoyed no legal power to cancel a permanent entry permit[79]. The Minister had the power to deport aliens convicted of certain crimes. But under the Act, as it then stood, the term "alien" was defined in language that inter alios excluded British subjects such as the applicant from treatment as foreign nationals or "aliens"[80].
[75]Reasons of Gleeson CJ, Gummow and Hayne JJ ("the joint reasons") at [3]-[6]; reasons of McHugh J at [42]-[45]; reasons of Callinan J at [130]-[138].
[76]Reasons of Callinan J at [133]-[135].
[77]Pursuant to the Act, s 6, as it then stood.
[78]The Act, s 7(1).
[79]Such a permit would not, however, have effect if it had been obtained improperly. See the Act, s 16, as it then stood.
[80]The Act, s 5(1).
The hypothesis in the Minister's case is that, although at federation and for some time thereafter persons such as the applicant would not have been "aliens" for constitutional purposes and although on arrival and until 1984[81] (with effect from 1 May 1987) the applicant was not an "alien" under the Act, somehow the applicant (and inferentially the many thousands of persons in a like position) became constitutional "aliens", susceptible for that reason to new laws under which they could be expelled from Australia.
[81]When the definition of "alien" was removed from the Australian Citizenship Act 1948 (Cth) by the Australian Citizenship Amendment Act 1984 (Cth). The definition of "alien" was removed from the Act itself by the Migration Amendment Act 1983 (Cth).
It is this thesis that lies at the heart of the issue presented for decision. Just to state the thesis is to indicate the gravity of the proposition being advanced. To establish the proposition, with its large consequences for the nationality of a substantial number of British subjects who came to Australia like the applicant enjoying a special status[82], the burden of persuasion is upon the Minister to demonstrate that such a change of status was lawfully achieved. It is the Minister who must show when the change happened. The Minister must justify a constitutional principle that has such serious results for the applicant and that could also validly affect the nationality status of so many people in a like position. The Minister must do so in the face of recent decisions of this Court that stand in the way.
[82]The number of persons affected by the "aliens" point was not identified with certainty. However, statistics presented to this Court in Re Patterson; Ex parte Taylor showed that the number of persons affected who arrived in Australia between 1959 and 1969 was half a million. If those who had arrived before 1959 and after 1969 but before 3 March 1986 or 1 May 1987 were included in this figure, the number would be even larger.
The course of this Court's authority on deportation
The immigration and other powers: For a very long time Australian constitutional doctrine has accepted that the federal constitutional power with respect to "immigration"[83] is not open-ended. It does not permit the indefinite regulation by federal law of persons who once were (or whose parents or family were) immigrants. The applicable power is addressed, as such, to "immigration". This is a process. It is not addressed, as such, to "immigrants".
[83]Constitution, s 51(xxvii).
Thus, as early as 1925, in Ex parte Walsh and Johnson; In re Yates[84], Knox CJ, considering the deportation of two persons who were British subjects and who had immigrated to Australia in 1893 and 1910 respectively, concluded that the power over immigration "should not be construed as extending to persons who had made their homes in Australia and become part of its people". This Court held that the validity of a provision authorising deportation as a law with respect to immigration "depends on this conclusion"[85]. According to this approach, a point was reached where "a person who has immigrated into Australia will pass beyond the range of the [immigration] power when the act of immigration is at an end – that is when that person has become a full member of the Australian community"[86]. No reliance was placed in that case upon the "aliens" power because each of the persons concerned was a subject of the King[87].
[84](1925) 37 CLR 36 at 62. See also at 109, 112 per Higgins J.
[85]Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 62.
[86]R v Director-General of Social Welfare (Vict); Ex parte Henry (1975) 133 CLR 369 at 373 per Gibbs J.
[87]Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 117.
This test of "absorption into the Australian community" is concededly vague. The precise moment when it occurs may be a matter of dispute in a particular case[88]. But the concept of absorption, for the purposes of the immigration power, is so well established and so clearly grounded in the constitutional text that it is now beyond dispute.
[88]Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 77 ALJR 1 at 6 [26]; 193 ALR 37 at 42-43.
By parity of reasoning, the classification of a subject matter of a law as one of "external affairs", for the purpose of the constitutional power with respect to that subject[89], postulates a dichotomy between affairs that are purely "internal" and those that are "external". Upon this basis the applicant disputed the invocation of the constitutional power with respect to "external affairs". For like reasons he rejected reliance on the implied nationhood power.
[89]Constitution, s 51(xxix).
Aliens and British subjects: The constitutional head of power principally relied on by the Minister to sustain action against the applicant was none of the foregoing. Those heads of power were held in reserve to supplement, if necessary, the principal way in which the Minister advanced the case. This was that, constitutionally speaking, the applicant was an "alien". He was by birth a citizen of the United Kingdom, a foreign country[90]. Although he was also a "British subject" at the time of his birth[91], by that time such status no longer enjoyed a single, universal significance throughout the British dominions where, as in Australia, the Queen retained the role of constitutional monarch and enjoyed the duty of allegiance as such[92]. Because the applicant personally, or his parents on his behalf, had not undertaken the process of naturalisation, and the applicant had not himself become an Australian citizen, according to the Minister, he was, in law, an "alien". For that reason, he was validly subject to any law of the Commonwealth with respect to "aliens" that authorised the Minister to remove him from Australia.
[90]British Nationality Act 1948 (UK), s 4; cf Sue v Hill (1999) 199 CLR 462 at 487-492 [48]-[65].
[91]British Nationality Act 1948 (UK), s 1.
[92]Attorney-General for Ontario v Attorney-General for Canada [1912] AC 571 at 581, 583-584, 589; R v Secretary of State for Home Department; Ex parte Bhurosah [1968] 1 QB 266 at 278, 284, 286; R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Indian Association of Alberta [1982] QB 892 at 916-917, 920-921.
Pochi and the dichotomy: To some members of this Court, the proposition of the Minister is clearly correct. The ultimate foundation for that view, applicable at least in the recent decades in which it has been propounded, has been a dichotomous approach to alienage and Australian citizenship. If a person is not an Australian citizen, by birth or subsequent naturalisation, such a person is an "alien" for the purposes of the Constitution. He or she may be dealt with as such. Cadit quaestio. End of contest.
In support of this dichotomy, the Minister relied once again upon remarks made in this Court in Pochi v Macphee[93]. There, Gibbs CJ propounded, as a general proposition, 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"[94]. Although this proposition was stated more broadly in Pochi than any principle of law needed to reach the orders in that case (which concerned a person who was born outside the dominions of the Crown, was never a British subject but was at all times an Italian citizen), the remarks became the foundation for the central holding of this Court in Nolan v Minister for Immigration and Ethnic Affairs[95]. In such a way serious legal error is sometimes built upon overstated legal propositions.
[93](1982) 151 CLR 101. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 77 ALJR 1 at 25-26 [158]-[163]; 193 ALR 37 at 70-71.
[94]Pochi v Macphee (1982) 151 CLR 101 at 109-110.
[95](1988) 165 CLR 178.
Nolan endorses the dichotomy: As in this case, Nolan involved a person born in the United Kingdom who came to Australia as a child, lived here until his late twenties, committed offences and was then the subject of purported action on the part of the Minister to expel him as an "alien". The majority of this Court upheld the constitutional power of the Minister to so act[96]. Only Gaudron J dissented[97]. Sweeping aside the history of nationality status under the Australian Constitution, the deliberate omission of an express constitutional status for Australian citizenship, the long course of assisted British migration to Australia[98] and the problem presented by the express reference in s 117 of the Constitution to "subject of the Queen"[99], the joint reasons of the majority in Nolan endorsed the dichotomous theory. For that majority, the word "aliens" in s 51(xix) of the Constitution, by 1988, included any person born outside Australia whose parents were not Australian citizens, and who had not been naturalised as an Australian citizen.
[96]Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 186 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ.
[97]Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 190-193.
[98]See reasons of Callinan J at [141]-[145].
[99]Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 186.
Whilst this meaning of "aliens" was accepted in Nolan, it was acknowledged that it would not have been adopted in 1901 when the Constitution commenced operation. Accordingly, the change was held to be implicit in "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 … and the creation of a distinct Australian citizenship"[100]. The ratio decidendi of Nolan could thus not have been clearer. It expressed a constitutional rule that survived until it was challenged directly in this Court in Re Patterson; Ex parte Taylor[101].
[100]Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 185-186.
[101](2001) 207 CLR 391.
Re Patterson overrules the dichotomy: Whatever else may be unclear about the holding of this Court in Re Patterson, this much is indisputable. Re Patterson overruled the dichotomous theory endorsed in Nolan. It returned the constitutional doctrine of this Court to a more complex notion of Australian nationality in keeping with the constitutional text and Australia's history. Correctly, the headnote writer in the authorised report of this Court's decision in Re Patterson states that Nolan was overruled[102]. The supposed dichotomy between Australian citizenship and "alien" status stood between Mr Taylor and success upon the issue on which the Court was narrowly divided (the constitutional validity of the Minister's deportation power in such a case). The holding on the point of the applicability of Nolan to the case was determinative of the orders ultimately made in Re Patterson. If Nolan had been endorsed by a majority of this Court, it would have followed, from the other holdings, that the Minister had the power to remove Mr Taylor from Australia. All other impediments to deportation decided in the case might have been cured by the Minister. But this one could not be. Mr Taylor stayed in Australia. He could not be deported as an "alien". This was so although he was certainly not a citizen. The supposed dichotomy was rejected.
[102](2001) 207 CLR 391 at 392.
Te affirms rejection of the dichotomy: In 2002, in Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te[103], this Court returned once again to the constitutional word "aliens". Undaunted by the reverse in Re Patterson, the Minister argued in Te for a quick return to the rule in Nolan. Specifically, the Minister urged a revival of the dichotomy between alienage and Australian citizenship. Those who, in Re Patterson, had dissented from the Court's holding in that case, continued to find the Minister's invitation irresistible[104]. In my respectful opinion, adherence to the dichotomy involved a rejection of a clear principle for which the decision in Re Patterson stood as legal authority.
[103](2002) 77 ALJR 1; 193 ALR 37.
[104]Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 77 ALR 1 at 5 [19] per Gleeson CJ, 22 [133]-[136] per Gummow J, 33 [210]-[211] per Hayne J; 193 ALR 37 at 41, 65-66, 82.
In Te, the particular issue that had arisen for decision in Nolan and Re Patterson (and which now arises in the present case) was not before this Court. Te, like Pochi, concerned persons who had been born outside the dominions of the Crown[105]. They were never British subjects or naturalised Australians. Thus, they were always within the concept of "aliens" as envisaged by s 51(xix) of the Constitution. It followed from the facts of Te (and the companion case of Re Minister for Immigration and Multicultural Affairs; Ex parte Dung Chi Dang) that none of the complications of the concept of nationality and of alienage that arose in Nolan and Re Patterson (and which now arise) had to be considered. Anything said in Te on those complications was therefore obiter dicta. The legal principle for which Re Patterson stands was unaltered. Nothing decided in Te changed in the slightest the holding in Re Patterson rejecting the dichotomy of alienage and citizenship favoured by the dissenting judges in Re Patterson. As a matter of legal authority, the holding in Re Patterson therefore applies to the present case. It is contrary to the applicable part of the ratio decidendi in Re Patterson to attempt, in this case, to reinstate the dichotomy between the status of "alien" and citizen.
[105]Mr Te was born in Cambodia. Mr Dang, the applicant in the associated case, was born in Vietnam. See Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 77 ALJR 1 at 23 [142], [145]; 193 ALR 37 at 67.
Stare decisis and constitutional law: I recognise that, in respect of the meaning of the Constitution, the duty of each Justice is to the fundamental law of the nation. In the history of this Court the rule of obedience to a majority holding of the Court on a point of law has not been uniformly treated as applying in the same way to a constitutional ruling. Nevertheless, whilst adhering to (and often expressing) individual views concerning the meaning of the Constitution, it is normal for Justices of this Court to give effect to majority rulings on the Constitution, if only to avoid the spectacle of deliberate persistence in attempts to overrule recent constitutional decisions on identical questions on the basis of nothing more intellectually persuasive than the retirement of a member of a past majority and the replacement of that Justice by a new appointee who may hold a different view[106].
[106]Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 597-600 [179]-[187] with reference to Gould v Brown (1998) 193 CLR 346.
Those who recognise the stabilising element of the doctrine of precedent in our legal system (even to the extent of suggesting the need for leave of this Court to re-argue a matter determined by past authority[107]) will ordinarily accept a determination of a rule, especially where that determination is recent and concerns exactly the same legal issue. Otherwise, every important constitutional decision will be resubmitted for redetermination following new appointments until the dissenter gets his or her way[108]. The rejection of the dichotomy suggested obiter in Pochi, endorsed in Nolan but overruled in Re Patterson should not continue to revisit this Court awaiting the hoped for arrival of a majority to give effect to an opinion about the Constitution dismissed in the past in an authoritative decision on the point.
[107]cf Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 at 316 per Gibbs CJ, Mason, Murphy, Wilson, Brennan and Dawson JJ; Deane J dissenting. See also Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 673.
[108]Western Australia v The Commonwealth (1975) 134 CLR 201; cf Queensland v The Commonwealth (1977) 139 CLR 585 at 599-600 per Gibbs J, 603 per Stephen J; cf at 592-594 per Barwick CJ, 631 per Aickin J.
In the present case, so far as the nationality of non-citizen non-alien British subjects is concerned, it must be conceded that a difficulty arises in expressing the affirmative side of the decision in Re Patterson represented in its negative face by the rejection of the dichotomy. Amongst the majority in Re Patterson for overruling Nolan, there was no exact concurrence in the expression of a constitutional principle to replace the discarded dichotomy. The differences in the statements of the individual judges in the majority in Re Patterson were analysed in Te. Unfortunately, in the light of what has been said, it is necessary to return to that analysis.
Whilst those of the Nolan persuasion persisted in Te with a view that the reasoning of the majority in Re Patterson "was not soundly based"[109], with respect, that is what must be said of the reasoning of the minority in Re Patterson and Te. As Gaudron J consistently, and correctly, pointed out in Nolan, Re Patterson and Te[110]:
"Citizenship is a statutory, not a constitutional concept. The relevant constitutional concepts with which this case are concerned are 'alien', the singular form of the word used in s 51(xix) of the Constitution, and, by way of constitutional distinction, 'non-alien'. Thus, the fact that the prosecutor is not an Australian citizen is irrelevant if he is not an alien."
[109](2002) 77 ALJR 1 at 22 [133] per Gummow J; 193 ALR 37 at 65.
[110]Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 77 ALJR 1 at 10 [53]; 193 ALR 37 at 48.
Although this is a notion that the minority in Re Patterson and Te have been persistently unwilling to accept, it is the clear and repeated holding of four members of this Court. It is a holding that should be respected as a matter of legal precedent. It is also correct as a matter of basic constitutional principle. It is fatal to the Minister's principal argument.
The criteria of alienage in Re Patterson: In Te, McHugh J, one of the majority in Re Patterson, acknowledged the different ways in which the Justices constituting the majority in Re Patterson had expressed the criterion for alienage, once the discrimen of non-citizenship was rejected as a universal criterion[111]. These differences led McHugh J to an hypothesis that no ratio decidendi with respect to the "aliens" power could be extracted from the reasoning in Re Patterson[112]. This part of McHugh J's reasons is cited in the joint reasons in the present case[113].
[111](2002) 77 ALJR 1 at 14 [85]-[86]; 193 ALR 37 at 54-55.
[112]Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 77 ALJR 1 at 14-15 [86]-[87]; 193 ALR 37 at 55.
[113]The joint reasons at [35].
However, the citation by their Honours does not state the entirety, or indeed the most important part, of McHugh J's analysis. His Honour also said that Re Patterson had "precedential authority in respect of circumstances that 'are not reasonably distinguishable from those which gave rise to the decision'"[114]. This additional part of McHugh J's reasoning should not be ignored. It involves an element of the doctrine of precedent as it applies in Australian law. Two principles stood as the authority of this Court before the present decision. The first was the negative principle that the absence of citizenship did not define alienage. The second, positive principle was emerging to meet the needs of the particular cases. So it does in the present case.
[114]Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 77 ALJR 1 at 15 [87]; 193 ALR 37 at 55 citing Midland Silicones Ltd v Scruttons Ltd [1962] AC 446 at 479; Re Tyler; Ex parte Foley (1994) 181 CLR 18 at 37.
In my reasons in Te, I suggested (and it is still my view) that the difference between Gaudron J and McHugh J in Re Patterson was "essentially upon a matter of detail concerning the way in which a group of non-alien British subjects, resident in Australia, were formally associated with Australia although not citizens and never having been naturalised"[115]. McHugh J in Re Patterson had explained the position of this intermediate class by reference to the traditional common law concept of allegiance[116]. This led his Honour to attach significance to the Royal Style and Titles Act 1973 (Cth)[117]. By that Act, reserved for the Queen's pleasure in accordance with the Constitution[118], the Royal style and title of the monarch was, in Australia, henceforth to delete any reference to the United Kingdom such as had previously existed. Instead, it was to refer to Her Majesty as "Queen of Australia". That alteration was said to amount to "a formal recognition of the changes that had occurred in the constitutional relations between the United Kingdom and Australia"[119]. It was such a change, reflected in concurrent changes to the Australian Citizenship Act 1948 (Cth) in 1973[120], that convinced McHugh J that "the evolutionary process" had occurred by which "the subjects of the Queen born and living in Australia became subjects of the Queen of Australia"[121]. His Honour described the process as a "mystical" one. It was one by which, without formal naturalisation, British subjects living in Australia, some of whom were not Australian citizens, "became subjects of the Queen of Australia". Those who had been born in the United Kingdom "owed their allegiance to the Queen of Australia, not the Queen of the United Kingdom"[122].
[115](2002) 77 ALJR 1 at 29 [182]; 193 ALR 37 at 75.
[116](2001) 207 CLR 391 at 432 [124].
[117]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 436-437 [135].
[118]Constitution, s 58.
[119]Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 246 at 261 per Gibbs J applied in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 432 [123] per McHugh J.
[120]By which a person seeking Australian citizenship was required to swear or affirm allegiance to the Queen as Queen of Australia. See Australian Citizenship Act 1973 (Cth), s 8 inserting s 15, which refers to the oath or affirmation of allegiance in Sched 2: see Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 431 [119].
[121]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 432 [124].
[122]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 432 [124].
In his reasons in Re Patterson, Callinan J agreed with McHugh J that the prosecutor in that case, "as a subject of the Queen resident in Australia at the end of the evolutionary process" to which his Honour had referred, "became a subject of the Queen of Australia"[123]. It was in such a way that Callinan J, like McHugh J, considered that the rights expressly conferred on a "subject of the Queen" by s 117 of the Constitution were protected[124].
[123](2001) 207 CLR 391 at 518 [378].
[124]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 518 [378] referring to the reasons of McHugh J at 435 [131].
Callinan J also agreed with my reasons in Re Patterson that persons in the position of Mr Taylor could not be treated as an "alien" for constitutional purposes[125]. My reasons were substantially the same as those of Gaudron J. We were prepared to accept that the repeal of the definition of the word "alien" in s 5 of the Australian Citizenship Act in 1984 (with effect from 1 May 1987) had a consequence from that time of recognising the "members of the Australian community", as such membership by then had evolved for the constitutional purposes of alienage[126].
[125]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 518 [377] by reference to my reasons at 485 [281], 491 [300]-[302], 493-494 [308], 495-496 [312].
[126]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 410 [44] per Gaudron J, at 493-494 [308], 495-496 [312] of my own reasons.
Clearly, by the principle that Gaudron J and I accepted (Callinan J agreeing with my reasons in this respect), the applicant in the present case was not an "alien" within the Constitution. Like thousands who had gone before, and who had arrived in Australia as British subjects at and about the time he arrived, the applicant enjoyed a special nationality position in Australia amounting to "the uniquely privileged status of non-citizen British subjects … who had migrated to this country"[127].
[127]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 496 [314].
The question affecting the second binding rule to be derived from Re Patterson, applicable to the present case, is therefore whether the opinion stated by McHugh J, by reference to the Royal Style and TitlesAct, requires a different and narrower conclusion to that adopted in Re Patterson by Gaudron and Callinan JJ and myself. In my view it does not.
The "aliens" power
Alienage in an Australian context: In approaching the meaning of the word "aliens" in the Constitution, it is important to note three points upon which, I should have thought, there can be no real dispute.
First, the word is a constitutional word appearing in the Constitution of the Australian Commonwealth. From the start of the nation's colonial history, through the debates that culminated in the adoption of the Constitution and up to the present time, the context is that of an immigrant country. Australia has, at all relevant times, been heavily dependent for its welfare, prosperity and security upon a constant flow of immigrants. In this sense, the context in which the word "aliens" appears in the Australian Constitution is different from the context in which alienage earlier arose to be interpreted in England in the times of the Stuart kings[128], in the England of the Hanoverian succession[129] or in the United States immediately after the revolutionary wars[130]. Whilst the concept of "alienage" was one known to the common law (as earlier it had been known to Roman law) the meaning of the concept in the present context is one peculiarly Australian. So much follows from the fact that the task of this Court is to give meaning to the constitutional word "aliens" not for some other purpose but solely for the purpose of defining the operation of the fundamental law of the Australian nation and people.
[128]Calvin's Case (1608) 7 Co Rep 1a [77 ER 377].
[129]In re Stepney Election Petition; Isaacson v Durant (1886) 17 QBD 54 at 59-60. See Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 411-412 [49], 430 [116].
[130]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 482 [274] referring to Jackson v Wright (1809) NY 4 Johns 75 at 78-79; Kelly v Harrison (1800) 1 Am Dec 154 at 156; Hollingsworth v Duane (1801) 12 Fed Cas 356 at 358; Inhabitants of Manchester v Inhabitants of Boston (1819) 16 Mass 230 at 235.
Change in alienage after 1901: Secondly, any suggestion that "aliens" in the Constitution would, in 1901, have included a subject of the Queen born in the United Kingdom would have been treated as absurd. It would have been as self-evidently wrong as it would have been to suggest, at that time, that the United Kingdom was, for the purposes of s 44(i) of the Constitution, a "foreign power"[131]. Put simply, there were too many indications in the constitutional text and in social, political and economic facts at that time to the contrary[132].
[131]Sue v Hill (1999) 199 CLR 462. See Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 495 [312].
[132]Notably in the Preamble to and s 2 of the Commonwealth of Australia Constitution Act 1900 (Imp) (63 & 64 Vict c 12) and s 117 of the Constitution, together with the many references to the Queen in the Constitution and in the Schedule thereto.
The Minister did not contest this point. It follows that upon this argument, somewhere between 1901 and the present, a change occurred in the denotation of the word "aliens", or in the meaning of the word itself taken in the Australian constitutional context[133]. That change permitted, and required, a different meaning of the word "aliens" from that which would have applied when the Constitution was first adopted.
[133]cf Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 at 511-513 [76]-[80], 522-525 [110]-[118].
The view has been expressed by those who adhere doggedly to the dichotomous theory, that the reasoning in Re Patterson "inserts into the universe occupied by Australian citizens and aliens a third class formed by those who are identified as non-citizens but non-aliens"[134]. This, it is said, is why the reasoning of the majority in Re Patterson is "not soundly based"[135]. However, with all respect to the minority analysis in that case, the majority's view in Re Patterson is based firmly in Australia's constitutional history. Indeed, it is grounded in the text of the Constitution itself, most notably s 117. It rests on the incontestable fact that, for decades in Australia during the twentieth century, nationality status for constitutional purposes in Australia involved, and involved only, the question of whether the person concerned was "a subject of the Queen [or King]". Once the statutory notion of citizenship was introduced after 1948, it was thus the Constitution, and not errant judges, that prevented what is termed the "third class". Unfortunately, it is the reasoning of those who ignore this simple truth that is "not soundly based". It is in error.
[134]Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 77 ALJR 1 at 22 [133]; 193 ALR 37 at 65.
[135]Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 77 ALJR 1 at 22 [133]; 193 ALR 37 at 65.
The best that the dichotomous theory can suggest is that the constitutional distinction between alienage and citizenship was created at some unspecified time after 1901 or was effected by federal legislation. But such legislation, whilst it may mirror and give effect to the deep undercurrents of constitutional change, cannot of its own alter the meaning and application of a constitutional word. Yet that is what the minority in Re Patterson, now forming a majority in the present case, suggest has occurred.
The meaning of "aliens": Thirdly, because "aliens" is a constitutional word, it cannot have any meaning that the Federal Parliament may choose to give it[136]. Thus, it would not be open to the Parliament to state that every Aboriginal Australian was an "alien", or that every descendant of Australians of Chinese (or other) ethnicity was an "alien"[137]. The word is not devoid of a discoverable meaning. Although the exact content may alter, indeed has altered, over time – and is no longer a reflection of the original dichotomy between the status of British subjects in Australia and all others – it is not open-ended. History and past practice cannot chart the ultimate boundaries of the notion. The search is one for the essential character of the constitutional idea of alienage.
[136]Pochi v Macphee (1982) 151 CLR 101 at 109; cf Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 431 [121]; Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 77 ALJR 1 at 32 [198]; 193 ALR 37 at 79-80.
[137]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 491-492 [303].
What then does that notion imply? In my view it refers to someone who is outside the Australian community and its fundamental loyalties, that is, outside Australian nationality. Applied today and for future application, I would accept that such community and such loyalties are marked off by citizenship of birth and descent, and citizenship by naturalisation. Indeed, so much is accepted by all members of the Court. Yet there was a time in the past, and not such a distant past, when a very large number of persons came to Australia and were fully accepted as partaking in the Australian community and sharing the loyalties referred to. They were fully accepted as enjoying Australian nationality.
This was so, notwithstanding that after 1948, when separate Australian citizenship was introduced by legislation, such persons did not procure such citizenship. In the case of the residual class of subjects of the Queen – most of them from the United Kingdom – such a formality was not at the time required or expected. Without it, members of their class were treated, and regarded, as full members of the Australian community. They enjoyed the nationality of this country. They were liable to jury service[138]. They were entitled as such to be employed in the public service as aliens were not[139]. They were obliged to perform national military service where others were exempt[140]. They were entitled to enrol for participation in federal and State elections and in constitutional referenda[141]. They had, by law and fact, the attributes that the Constitution itself continued to recognise as Australian nationality. Thus, they were, in the transitional years, nationals of Australia although not statutory citizens. They were not "aliens" either for statute law or for the Constitution.
[138]Conventionally, the Jury Acts throughout Australia provided for the qualification of jurors by reference to entitlement to be enrolled as an elector. See eg Jury Act 1929 (Q), s 6.
[139]eg Commonwealth Public Service Act 1922 (Cth) s 33. The reference to "British subject" in provisions of the Public Service Act governing eligibility for appointment to the Public Service was removed in 1984 by the Public Service Reform Act 1984 (Cth), s 26, which substituted "an Australian citizen".
[140]National Service Act 1951 (Cth), s 10(1)(a). The Act has since been repealed. See Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 487-488 [289].
[141]Commonwealth Electoral Act 1918 (Cth), s 93(1)(b)(ii). See Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 487-488 [287]-[289]. The position of the applicant in relation to this legislation is explained by Callinan J at [176], fn 214.
The agreements reached between the respective governments set out the basis upon which they would cooperate[182]:
"in order to assist suitable persons in the United Kingdom to proceed to Australia for permanent settlement." (emphasis added)
[182]Australia/United Kingdom Assisted Passage [Migration] Agreement, ATS 1967 No 14 at 1.
That the agreements envisaged long term residency in Australia of those whose passage was assisted is further illustrated by the following understanding[183]:
"9. In the event of a migrant not remaining in Australia for a minimum period of two years after arrival, the Commonwealth Government shall be at liberty to require him to repay to the Commonwealth of Australia the difference between the cost of his passage and the amount contributed by him thereto. The Commonwealth Government may also require each migrant, prior to his departure for Australia, to sign an undertaking to make such repayment if he should depart within two years hereinbefore referred to."
[183]Australia/United Kingdom Assisted Passage [Migration] Agreement, ATS 1967 No 14 at 2.
The British government withdrew assistance to intending immigrants in 1972, but the Australian government continued to afford it until 1981. The overwhelming majority of those who came to Australia after the end of the Second World War did so under an assisted migration programme[184]. It may be safely assumed that most if not all of those immigrants were subjects of the Queen, a constitutional expression in this country[185], and would have continued so to regard themselves when they reached and settled in Australia. Whether this applicant or his parents were assisted migrants is beside the point. They entered this country as subjects of the Queen enjoying a special status in Australia in circumstances in which great encouragement was being held out to Britons to become Australians. The fact of that encouragement provides an indication that this country and its government also regarded the British entrants as people having a like status to those who were born in this country.
[184]Department of Immigration and Multicultural Affairs, Immigration: Federation to Century's End 1901-2000, (2001) at 34.
[185]Constitution, ss 34 and 117.
Interfering with status
The applicant's entitlement to permanent residency in Australia is a matter of "status". The concept of status was described by Griffith CJ in Daniel v Daniel[186]:
"Without pretending to give an exhaustive definition, I apprehend that the term 'status' means something of this sort: a condition attached by law to a person which confers or affects or limits a legal capacity of exercising some power that under other circumstances he could not or could exercise without restriction."
[186](1906) 4 CLR 563 at 566.
In Ford v Ford Latham CJ said this[187]:
"A person may be said to have a status in law when he belongs to a class of persons who, by reason only of their membership of that class, have rights or duties, capacities or incapacities, specified by law which do not exist in the case of persons not included in the class and which, in most cases at least, could not be created by any agreement of such persons. An alien, for example, as distinct from a subject of the Crown, a married person as distinct from an unmarried person, a bankrupt as distinct from other persons generally, are all persons who have a particular status."
[187](1947) 73 CLR 524 at 529.
Courts have long been reluctant to alter the status of a person without a compelling reason to do so. In In re Selot's Trust[188], Farwell J expressed the need for caution in making such an alteration or reaching a conclusion about it. His Lordship said[189]:
"the onus is on the person asserting that there has been a change in status to prove it ...".
[188][1902] 1 Ch 488.
[189][1902] 1 Ch 488 at 492.
The applicant's argument
The applicant contends that s 501(2) is beyond the legislative power of the Commonwealth Parliament to the extent that it authorised the respondent to cancel his visa. He argued that s 501(2) is not a valid exercise of the power of the Parliament under the Constitution to make laws with respect to "naturalization and aliens" (s 51(xix)) or "immigration and emigration" (s 51(xxvii)): or, that in any event it could have no application to him as a British subject who had first entered Australia in 1974 and had lived here for the whole of his life since then.
The immigration power
It is convenient to deal with the applicant's contention with regard to s 51(xxvii) first. It is submitted by the applicant that at the date of the cancellation of his visa, he had long been a member of the Australian community and had ceased to be an immigrant. He was therefore beyond the reach of the immigration power. In support of this proposition the applicant referred to Ex parte Walsh and Johnson; In re Yates[190]. In that case, Knox CJ said[191]:
"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[192] 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."
[190](1925) 37 CLR 36.
[191](1925) 37 CLR 36 at 64-65.
[192](1908) 7 CLR 277.
In Re Patterson; Ex parte Taylor[193], a case of some similarity to this one, the respondent conceded, and rightly so, that the applicant there had been absorbed into the Australian community, and accordingly, s 501(3) of the Migration Act could have no valid application to him.
[193](2001) 207 CLR 391 at 407 [32].
Precisely how long a period of residence must have passed, or what communal activities, or abstention from anti-social activities, must have taken place, for absorption into the Australian community to have occurred has not so far been settled by this Court. Gleeson CJ however, did point out in Re Minister for Immigration and Multicultural Affairs; Ex parte Te[194], that "absorption" identifies the point at which a person's status as an immigrant comes to an end:
"The concept of absorption into the Australian community, vague as it may be, has been developed as a method of indicating that the activity of immigration in which a person has engaged has come to an end."
[194](2002) 77 ALJR 1 at 6 [26]; 193 ALR 37 at 42.
In the same case I pointed out[195], and I adhere to the view, that persistent serious criminal activity from soon after the inception of residence here is likely to be regarded as antipathetic to absorption into the general community.
[195](2002) 77 ALJR 1 at 39 [227]; 193 ALR 37 at 88-89.
The applicant in this case has been absorbed into the Australian community. His residence here for more than ten years with his parents before the commission by him of serious crime produced that result. He is therefore beyond the reach of the immigration power conferred upon Parliament by s 51(xxvii) of the Constitution. Section 501(2) of the Migration Act has no application in relation to this applicant.
The "aliens" power
The next question is whether the section can operate in relation to the applicant conformably with s 51(xix) of the Constitution. The answer depends on the proper construction of the word "alien".
The applicant contends that as he was born in the United Kingdom and entered Australia in 1974 he is not an alien. At the time of his birth and settlement in Australia with his parents, the applicant was a citizen of the United Kingdom and Colonies, and a British subject[196]. He was therefore a member of a class of persons who were "British subjects" for the purposes of s 7 of the Nationality and Citizenship Act 1948 (Cth) ("the Nationality and Citizenship Act"), and, later, a member of a class of persons having the "status of British subjects" following amendments to that Act in 1969 which renamed it the Australian Citizenship Act 1948 (Cth) ("the Citizenship Act"). Persons of that status were expressly excluded from the definition of "alien" for citizenship purposes. The position remained unchanged until amendments to the Citizenship Act were enacted in 1984 to commence on 1 May 1987[197].
[196]British Nationality Act 1948 (UK), ss 1 and 4.
[197]Australian Citizenship Amendment Act 1984 (Cth).
By the time that the special status of British subjects as non-aliens was changed by the removal of the exception in their favour in the Citizenship Act, the applicant contends, he had become a member of the Australian community, a person who was, in effect, an Australian and not an alien, and therefore beyond the reach of the aliens power under s 51(xix) of the Constitution.
Alternatively, the applicant argues, he could not have been regarded as an alien until the commencement of the Australia Act 1986 (Cth) and the Australia Act 1986 (UK) on 3 March 1986 ("the Australia Acts"), at which point the United Kingdom became a foreign power for the first time.
The respondent, on the other hand, argues that the passage of the Nationality and Citizenship Act and the British Nationality Act 1948 (UK) ("the British Nationality Act") produced the result that Australia became then an independent nation with its own citizens, and exclusive rules about entitlement to citizenship. On this argument, there was after 1949 a Queen of Australia distinct, in legal theory, from the Queen of the United Kingdom. Parliament and Parliament alone could determine that a person who was not born in Australia, or who did not have Australian parents (whether or not they were British subjects), was an alien absent a grant of Australian citizenship.
At federation, the term "alien" certainly did not extend to British subjects. As Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ observed in Nolan v Minister for Immigration and Ethnic Affairs[198]:
"The word could not ... properly have been used in 1900 to identify the status of a British subject vis-à-vis one of the Australian or other colonies of the British Empire for the reason that those colonies were not, at that time, independent nations with a distinct citizenship of their own. At that time, no subject of the British Crown was an alien within any part of the British Empire."
[198](1988) 165 CLR 178 at 183.
The question accordingly is, at what point can a British subject who has not obtained formal Australian citizenship be regarded and treated as an alien. Several possibilities have been suggested: 1949, on the commencement of the Nationality and Citizenship Act and the British Nationality Act; some unidentifiable date before 1973; 1973 itself; some unidentifiable date after it and before 1986; 1986 itself on the commencement of the Australia Acts; and 1987 on the commencement of the amendments to the Citizenship Act to which I have referred.
This Court has held that there has been an evolutionary change in the meaning of the term "alien" but has not definitively stated the starting point or the terminus of that evolution. In Nolan, Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ said that following the creation of separate Australian citizenship by the Nationality and Citizenship Act[199]:
"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'."
[199](1988) 165 CLR 178 at 184.
However, in Patterson the Court found that a British subject who was born in the United Kingdom and had come to live permanently in Australia in 1966 was not an alien. McHugh J noted that the connotation of the term "alien" had remained the same since Federation, but that, along with the evolution of Australia as a sovereign state, the denotation of the term had changed[200]. That is, the term "alien" now refers to classes of persons who would not have been so regarded at federation, and may include British subjects who are not citizens of Australia. However his Honour held, for reasons I discuss below, that the denotation of the term had not changed sufficiently in the case of the applicant in that case to alter his status to that of an alien.
[200](2001) 207 CLR 391 at 427-428 [111].
The Solicitor-General of the Commonwealth, who appeared for the respondent, sought leave to re-open Patterson and invited the Court to affirm its decision in Nolan[201]. It was argued that Patterson does not express a ratio concerning the class of British subjects who are neither Australian citizens nor aliens. As such, it was contended that Patterson offers no binding constitutional principle and need not be followed. Rather, the Court's earlier decision in Nolan should be followed.
[201](1988) 165 CLR 178.
An additional basis for preferring the decision in Nolan, it was argued, was inconvenience arising from seeking to apply Patterson in various circumstances. Long v Minister for Immigration and Multicultural and Indigenous Affairs[202] was cited as an example.
[202][2002] FCA 1422.
With respect to those who hold the contrary view, I do not agree. The difficulty that arises from Patterson is the lack of the statement of a definitive final milestone in the evolutionary process of complete independence, not the absence of an explicit statement by a majority of the Court that Nolan should be overruled. The decision in Nolan, as McHugh J said in Patterson[203]:
"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. Secondly, 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."
[203](2001) 207 CLR 391 at 421 [90].
In Sue v Hill a majority of this Court held that, at least by the commencement of the Australia Acts, the United Kingdom was a foreign power for the purposes of s 44(1) of the Constitution[204]. It was not, however, necessary then for the Court to decide the precise time that the United Kingdom came to be so viewed.
[204](1999) 199 CLR 462.
I pointed out in Sue v Hill that there were problems in seeking to apply changing denotations of constitutional terms in tandem with an evolutionary theory of Australian independence[205]:
"The great concern about an evolutionary theory of this kind is the doubt to which it gives rise with respect to peoples' rights, status and obligations as this case shows. The truth is that the defining event in practice will, and can only be a decision of this Court ruling that the evolutionary process is complete, and here, as the petitioners and the Commonwealth accept, has been complete for some unascertained and unascertainable time in the past."
I also thought that the evolutionary theory was one to be regarded with great caution[206].
[205](1999) 199 CLR 462 at 571-572 [291].
[206](1999) 199 CLR 462 at 571 [290].
While a precise date at which Australia actually achieved complete constitutional independence may not, in strict legal, or indeed historical theory, be able to be determined, it is highly desirable that a point in time by which it had occurred be nominated. To do so will give guidance to courts in applying the decision in Patterson. It is necessary, therefore, to consider the alternative dates that have been advanced.
The magic date is not, in my view, 1949 as contended by the respondent. It may be said that the enactment of citizenship legislation in Australia and the United Kingdom in 1948 reflected changes in the Imperial system. However, that legislation did not and could not alter the constitutional status of the Sovereign in this country. That some marked political evolution had taken place cannot be disputed, but it is not appropriate to cite political change in support of changes to the law. To do so would be to fall into the same sort of error as Viscount Sankey LC (delivering the opinion of the Judicial Committee) made in British Coal Corporation v The King[207] in treating politics as one and the same as the law. In that case, his Lordship said that the possibility that the British Parliament might repeal the recognition of the legislative independence of the dominions that the Statute of Westminster conferred on them, was "theory" and had no "relation to realities". Such a statement conflates political "realities" with the true legal position.
[207][1935] AC 500 at 520.
Nothing that I have said is to deny the importance of both politics and realpolitik in circumstances in which the Constitution and the legal arrangements that give it effect and validity have insufficient, or nothing that is definitive, to say about the constitutional issue to be decided. But this is not such a situation. Unlike in the case of Eire and the securing of its independence, there is no legal ambiguity about the cooperative arrangements between the United Kingdom and Australia by which the Australian federation was established and has moved towards independence. Nor at any stage has it been necessary for the people of this country in order to obtain their national independence, to resort, as happened in the colonies of North America, to arms and rebellion. The Australian people have since 1900 proceeded regularly, indeed scrupulously and overtly legally, in collaboration with the Parliament of the United Kingdom along the path to full and independent nationhood. There has never been and there is now no occasion to resort to political theory, or perhaps more accurately, realpolitik, in lieu of the combined legislative measures constituted by the joint endeavours of the States, the Commonwealth, and the United Kingdom[208]. Had Viscount Sankey LC been correct in 1935 there would have been no need for the elaborate mechanism of the Australia Acts. I would reject arguments in support of 1949 as the magic date for the same reason.
[208]See the Australia Act 1986 (Cth), Australia Act 1986 (UK), Australia (Request and Consent) Act 1985 (Cth), Australia Acts (Request) Act 1985 (Q), Australia Acts (Request) Act 1985 (NSW), Australia Acts (Request) Act 1985 (Vic), Australia Acts (Request) Act 1985 (Tas), Australia Acts (Request) Act 1985 (SA), Australia Acts (Request) Act 1985 (WA).
The British Nationality Act dealt with a number of matters concerning the citizenship of United Kingdom residents. It did not purport to deal with the status in Australia of Australian residents. Further inquiry into the effect of the English statute would require the Court to embark on the undesirable, and here unnecessary, exercise of construing the legislation of another country.
The argument that British immigrants who settled in Australia before 1973 are not aliens within the meaning of the Constitution is based on the fact of the enactment in 1973 of the Royal Style and Titles Act 1973 (Cth) which adopted a new style for the Sovereign: Queen of Australia. McHugh J in Patterson, for example, accepted that "subject of the Queen" as that phrase appears in s 117 of the Constitution had evolved to mean "subject of the Queen of Australia"[209]. His Honour went on to hold that, by parity of reasoning, subjects of the Queen resident in Australia at the time that the evolutionary process came to an end, became subjects of the Queen of Australia irrespective of their place of birth[210]. The significance of this is that once a person is accepted as a subject of the Queen for the purposes of the Constitution, that person cannot be an alien for the purposes of the Constitution[211].
[209]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 435 [131].
[210]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 435 [131].
[211]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 435 [132] per McHugh J.
In my view, 1973 is not the appropriate date. The change to the Sovereign's style and title in Australia in 1973 rang no bell for British born subjects of the Queen who had settled in Australia: that, suddenly, notoriously and decisively they were now aliens. The applicant's status in this country should not be made a casualty of an unrecorded, unnoticed, unheralded, and undefined, in chronological terms, evolutionary denotational change in constitutional meaning.
In Patterson, Kirby J placed greater emphasis on the commencement in 1987 of amendments to the Migration Act and the Citizenship Act that were passed in 1983 and 1984 respectively[212]. His Honour said that[213]:
"All immigrants, including non-citizen British subjects, arriving in Australia after May 1987 at the latest may be taken to be aware, or could be advised, that the privileged position accorded before that time to non-citizen British subjects was thenceforth terminated. However, such termination did not, in my view, operate retrospectively on the class of persons who arrived before that time. ... So far as the Migration Act was concerned, it did not have the power to do so, at least in respect of immigrants who have been absorbed into the community and are members of the people, and electors, of the Commonwealth."
[212]Migration Amendment Act 1983 (Cth), s 4; Australian Citizenship Amendment Act 1984 (Cth), s 5.
[213]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 496 [313].
I note that the applicant in the present case does not have the right to vote in Australia[214]. I would not understand Kirby J to have ruled that factor to be determinative. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Te[215], the right to vote is not necessarily inconsistent with alienage or vice versa.
[214]See s 93 of the Commonwealth Electoral Act 1918 (Cth). Former British subjects who are not Australian citizens have the right to vote in Australia if they were on the electoral roll before 26 January 1984. The applicant was a British subject resident in Australia before that date, but was not eligible to vote as he had not yet reached the age of 18 years.
[215](2002) 77 ALJR 1 at 6 [30]; 193 ALR 37 at 43.
In my opinion, the correct date for the change in status of a subject of the Queen in Australia can be no earlier than the coming into force of the Australia Acts: 3 March 1986.
The long title of the Australia Act 1986 (Cth) is:
"An Act to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation."
It was this overt legislative act, mirroring simultaneous legislation in the United Kingdom, that gave voice to the completion of Australia's evolutionary independence. It was a formal declaration that the Commonwealth of Australia and the Australian states were completely constitutionally independent of the United Kingdom. Nothing can serve so well to give legitimacy to a nation and its constitutional integrity as a rare and complete consensus of governments of the kind that the enactment of the Australia Acts represents.
The respondent's alternative arguments
In addition to advancing the arguments that s 501(2) of the Migration Act is supported by both the immigration power and the power with respect to "aliens", the respondent argues that there are two other bases upon which the validity of the section can be supported. The first is that the section is a valid exercise of power with respect to external affairs under s 51(xxix) of the Constitution. The second is that an "implied nationhood" power supports legislation such as s 501(2) to control the entry, exit and removal of people from Australia.
I would reject the respondent's alternative arguments.
The legislative powers of the Commonwealth Parliament are to be found in the text of the Constitution, primarily, if not almost exclusively, in s 52. Constitutional implications may only be made in clear and unarguable cases of real necessity. There is nothing in the fact of a national government to justify an implied power to legislate for the removal of persons from Australia otherwise than pursuant to the ample but not absolutely unconfined powers enumerated in the text of the Constitution.
I would add this in relation to the external affairs power. "External affairs" is a simple and clear expression. It is concerned with events, places and people external to Australia and their relation to Australia. It is not an unbridled power. It must be read with the rest of the Constitution and in conformity with the concept that it embodies, of the sharing and allocation of powers between the central government and the state governments. This applicant is a longstanding resident of Australia who entered the country before it achieved absolute independence from the United Kingdom. The external affairs power has nothing to say about his right to continue to live in Australia.
The decision
I summarize my conclusions. The applicant does have a long history of criminal behaviour, beginning in 1987 when he was aged 14. The respondent relies on the decision of this Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Te[216] as authority for the proposition that the commission of serious crimes against the community is inconsistent with a person's absorption into the community. I accept that to be generally so, but in this case the applicant had been living in Australia for more than 12 years before his first conviction, and that occurred when he was still a child. In my view the applicant had been absorbed into the Australian community by the time that he came to the notice of the criminal courts. And, in any event, I would not regard that first conviction, occurring as it did when he was so young, as putting him beyond the community of ordinary Australians. I reject the respondent's argument that a person cannot be absorbed into the Australian community until he has attained adulthood[217]. Absorption may not necessarily be a matter of choice. It is better gauged by actual presence and conduct.
[216](2002) 77 ALJR 1; 193 ALR 37.
[217]See The Queen v Director-General of Social Welfare (Vict); Ex parte Henry (1975) 133 CLR 369 at 374 per Gibbs J, 382 per Mason J.
That the applicant cannot vote in Australian elections is a factor, but standing alone, and in the case of a longstanding resident, does not detract from his integration in, and participation as, a member of the Australian community. The applicant is beyond the reach of the power of the Commonwealth Parliament to legislate with respect to immigration.
Nor do I consider that the applicant can be described as an "alien" for the purposes of the Constitution. At federation, a subject of the Sovereign of the United Kingdom was not an alien for the purposes of s 51(xix). There is authority of this Court to indicate that that is no longer the case. The precise time at which the Australian political and legal evolutionary process culminated in that outcome has not so far been definitively stated. However, in my view, it can be no earlier than the coming into effect of the Australia Acts in 1986.
It is clear that the applicant was absorbed into the Australian community at a time when subjects of the Sovereign of the United Kingdom were accorded special privileges and status in Australia indicating that they were not to be regarded or treated as aliens. Retrospectively, to alter that status at this late stage is unacceptable and without constitutional warrant.
As I have said, in my opinion, the correct date for the change in status of a subject of the Queen in Australia can be no earlier than the coming into force of the Australia Acts, the third day of March 1986. The applicant is not an "alien" for the purposes of s 51(xix) of the Constitution. Section 501(2) of the Migration Act is therefore not a valid exercise of the legislative powers of the Commonwealth under s 51(xix) in relation to him.
As attractive as a different answer might be in the case of this criminal who would, in consequence of my decision if it were to prevail, continue to be a charge upon the Australian people, I am bound to answer the question as follows:
Q.Was subsection 501(2) of the Migration Act 1958 (Cth) within the legislative powers of the Commonwealth to the extent that it authorised the respondent to cancel the applicant's visa on 17 July 2001?
A.No.
The respondent should pay the applicant's costs of the application and the case stated.
HEYDON J. It was common ground between the applicant and the Solicitor-General of the Commonwealth that while it is now the case that British subjects who are not Australian citizens are aliens, in 1901 British subjects were not aliens. Hence the argument between the parties postulated the axiomatic correctness of the proposition that in 1901 British subjects were not aliens, and concentrated on the question of when and how the change occurred. Understandable though this approach is, there is an unsatisfactory element in it. It is not in fact self-evident that from 1 January 1901 all British subjects were not aliens, and inquiry into a subsequent date on which, or process by which, they became aliens tends to proceed on a false footing so far as it excludes the possibility that on 1 January 1901 some of them were aliens. Much has been said in this Court and elsewhere, and much more could be said, in denial of that possibility, but there are arguments that that possibility is correct, and its correctness should be left open until a case is heard in which the contrary is not simply assumed, but fully debated. The stance of the parties makes it inevitable that the Court must proceed on the assumption on which the case was argued. On that assumption, the orders proposed by Gleeson CJ, Gummow and Hayne JJ should be made for the reasons they give.