Chetcuti v Commonwealth of Australia
[2021] HCATrans 82
[2021] HCATrans 082
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M122 of 2020
B e t w e e n -
FREDERICK CHETCUTI
Appellant
and
COMMONWEALTH OF AUSTRALIA
Respondent
KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 11 MAY 2021, AT 10.00 AM
Copyright in the High Court of Australia
MS G.L. SCHOFF, QC: If it please the Court, I appear with MS G.A. COSTELLO, QC and MS K.E. SLACK for the appellant. (instructed by Lawson Bayly)
MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: May it please your Honours, I appear with MR C.L. LENEHAN, SC and MS Z.C. HEGER for the respondent. (instructed by Australian Government Solicitor)
MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with MR J.F. METZER for the Attorney‑General for the State of South Australia, intervening. (instructed by Crown Solicitor’s Office (SA))
KIEFEL CJ: Yes, Ms Schoff.
MS SCHOFF: Thank you, your Honour. Today, Australia is an independent nation with its own sovereign head of state and Parliament has wide power to deal with matters of nationality, but at Federation and until a date that this Court may need to determine for the purpose of this appeal, that power was constrained by the fact that throughout the British Empire there was, as Justice Higgins explained in Potter v Minahan, one Crown, one allegiance and one citizenship.
The consequence was that references in the Constitution to “subjects of the Queen” were references to subjects of the British Imperial Crown, that is, references to British subjects, and no subject of the Queen was an alien in any part of Her Majesty’s dominions.
Those propositions, we contend, are not contentious. They have been accepted by this Court in a series of decisions commencing with Pochi v MacPhee (1982) 151 CLR 101, Nolan v Minister for Immigrationand Ethnic Affairs (1988) 165 CLR 178, in Re Patterson; Ex parte Taylor (2001) 2007 CLR 391 and in Shaw v Minister for Immigration andMulticultural Affairs (2003) 218 CLR 28.
Nolan, the foundational case in this area, decided that the emergence of Australia as an independent nation, the acceptance of the divisibility of the Crown, which was implicit in the development of the Commonwealth as an association of independent nations and, critically, the creation of a distinct Australian citizenship, had the effect of altering that practical designation of the constitutional term “subject of the Queen” and the term “alien”.
In the modern context, there is no doubt that the words “subject of the Queen” in our Constitution are treated as “subject of the Queen of Australia” with the consequence that the term “alien” must include people who are not subjects of the Queen of Australia. I will make good that proposition by coming backing to Nolan and what the High Court said in that decision.
All subsequent decisions of this Court have accepted that proposition, as does the appellant. For the appellant, the issue in this appeal turns on identifying the point in time at which that process occurred, what Justice Callinan called “The magic date” in Shaw at paragraphs 168 to 170. Your Honours will find that paragraph at volume 5 of the joint book of authorities at page 1288.
The appellant’s case then is very straightforward. It rests upon the meaning and effect of the Constitution. It does no violence to any authority in this Court. It is simply this, that at the time of his arrival in Australia he was, as a British subject, one of the subjects of the Queen referred to in the Constitution and, therefore, not an alien.
Parliament could have prevented him from taking up residence in Australia by the use of its immigration power. It did not do so. He was permitted to become one of the subjects of the Queen resident in Australia and, therefore, one of the people of the Commonwealth. This contention does not rely upon any Act of Parliament of the Commonwealth. It rests upon the terms and the meaning of the terms in our Constitution, section 34 which deals with the qualification of members of the House of Representatives. One of those qualifications, until amendment by Parliament, included in (ii) that a member of the House of Representatives had to be:
a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony . . . or of a State.
The term “naturalized” in that context accepted that one could be an alien or, once naturalised, a subject of the Queen. We rely upon the reference to “subject of the Queen” and the acknowledgment by our Constitution that there were those who were natural‑born and those who were naturalised.
Section 117 which also refers to the people of the Commonwealth, relevantly in the context of the States, as subjects “of the Queen, resident in any State” – we say that if the appellant became a subject of the Queen resident in a state, then under the terms of our Constitution, he must have been one of the people of the Commonwealth.
The Commonwealth says – the respondent says that at all material times it has been open to the Parliament to treat the appellant as an alien. We have two answers to that contention. The first is, as I have already contended, that the term “alien” in our Constitution cannot possibly include a person who is a subject of the Queen in the constitutional sense. At Federation, and at least until after 1949 when the Nationality and Citizenship Act commenced, all British subjects, whether born in Australia or elsewhere, were subjects of the Queen under the Constitution.
EDELMAN J: Does that mean that the hundreds of millions of subjects of the Queen in all of the colonies all around the world were all non‑aliens in 1901?
MS SCHOFF: Yes, Justice Edelman. We would say that they were all outside the aliens power. We contend they could have been prevented from taking up residence in this country and becoming one of the people of the Commonwealth, but it would have required the use of the immigration power, or some other power, to prevent them from coming here.
EDELMAN J: So in the Federation debates, the many, many references to many of these subjects of the Queen in other colonies as aliens was just a misunderstanding?
MS SCHOFF: Well, there were those references, your Honour, but in the way that the founders resolved those issues it is clear, in our submission, that that is why an immigration power was necessary - to prevent those British subjects that the Parliament may have wished to prevent from becoming one of the peoples of the Commonwealth was necessary.
There are those references, but we would say that authority in this Court makes it plain – for instance, Potter v Minahan – that the exclusion of such persons and people from races that at the time it was thought wrongly it would be undesirable to have in this country would be excluded under the immigration power. So that is our first answer to the respondent’s contention.
Our alternative argument is that if Mr Chetcuti – if the appellant was an alien prior to his arrival in Australia, then Parliament in the exercise of its power with respect to aliens treated his British subjecthood as the sole qualification for full membership of the Australian political community and permitted him to enter and take up residence on that basis. He became one of the people of Australia and a non‑alien.
In that respect, we accept what the Commonwealth says in its submission at paragraph 7, that for the purposes of section 51(xix), the aliens power, and subject to the qualification in Pochi, an alien is no more and no less than a person who has not been admitted to formal membership of the community that constitutes the relevant body politic, according to the prevailing test for membership prescribed by law, whether that be statute or in the absence of applicable statute for common law.
So that if the Court is against us and if, indeed, the appellant was an alien when he arrived here in 1948 before the commencement of the Nationality and Citizenship Act, before Australia had its own distinct citizenship, then the prevailing test for membership of our community at that time was British subjecthood, that the effect of his British subjecthood was that it permitted him to be a full member of our political community, one of the people of Australia.
GAGELER J: Is your acceptance of that proposition in paragraph 7 of the Commonwealth’s submissions only for the purpose of your alternative argument, or do you accept it?
MS SCHOFF: It is. That is so.
GAGELER J: Thank you.
MS SCHOFF: The appellant does not deny that today Parliament has power to determine who the people of Australia are, subject only to the qualification in Pochi that there are persons who could not possibly answer the description of “aliens” in the ordinary understanding of the word. This Court has recently held in Love v Commonwealth that a particular category of Aboriginal Australians could not possibly answer the description of “alien”.
The respondent points to another category, that is, persons born in Australia to two Australian parents and who are not citizens of any other country and have not renounced their allegiance to Australia, but the paradigm example perhaps of someone who could not possibly answer the description of “alien”.
But the appellant contends that there must be at least another category of people who could not possibly answer the description of “alien”, and that is persons who possess the following characteristics: they are natural‑born subjects of the Queen; they arrived in Australia and took up residence here prior to the emergence of Australia as a fully independent sovereign State with its own distinct citizenship owing allegiance to the Queen of Australia; and have not renounced their allegiance to Australia.
People who have each of those characteristics are not and never have been foreigners and since their arrival in Australia prior to 26 January 1949, the date when the Nationality and Citizenship Act commenced, have belonged to the Australian political community. They are not aliens. The appellant is not an alien, and nothing that the legislature has done since that time was capable of affecting that non‑alien status.
KEANE J: Ms Schoff, is it your contention that Australian subjects of the Queen came to owe allegiance to the Crown in right of the Commonwealth of Australia only upon the enactment of the Nationality and Citizenship Act in 1948?
MS SCHOFF: No. We say, your Honour, that – we accept that the Crown has divided at some point between 1948 and 1986.
KEANE J: But before that Act you do accept, do you, that Australians owed allegiance to the Crown in right of the Commonwealth?
MS SCHOFF: No, we say that before that Act all persons resident in this country – Australians, if you use that term – were British subjects. Like the appellant, they were all British subjects and their nationality was British. That is made quite plain. They owed allegiance to the undivided Imperial British Crown.
KEANE J: And not to an entity described as “the Crown in right of the Commonwealth”?
MS SCHOFF: No. The concept of the division of the Crown was not a new one at that time. For the purpose of the Crown exercising its powers in its various dominions since the 1800s, it had been accepted that the Crown might act in the right of the Crown of the Commonwealth – might be the Crown in right of a particular colony for the purposes of exercising its powers in that regard. But, here, we are talking about a different issue. This is the Imperial Crown for the purpose of subjecthood of allegiance which is, indeed, nationality.
When Justice Higgins spoke of one Crown, one allegiance and one citizenship, he was describing what nationality is. Like all persons who were already born in this country, resident in this country prior to 1948, they were all British subjects – just natural‑born British subjects if born in this country, owing allegiance to that Imperial Crown. Nothing in that regard changed until at least the introduction of Australia’s own citizenship and we would say probably the Crown did not divide until 1986. Now, this Court might not need to decide that question for the appellant’s purposes. It is enough that the division did not occur until after he had arrived in this country.
EDELMAN J: You need to go a bit further than that, though, do you not, because you need to say not just that the division did not occur until that point but, also, that after the division, the fact of being a natural‑born subject of the Queen in an undivided Crown afforded some indelible status of non‑alienage that could never be removed absent renunciation.
MS SCHOFF: Yes. We put it this way. We say that when the Crown divided – like all other British subjects who were the people of the Commonwealth in this country – Mr Chetcuti then owed his allegiance to the Queen of Australia.
KIEFEL CJ: How did that come about?
MS SCHOFF: Because when the Crown divided he was already one of the people of Australia. He was one of the subjects of the Queen in this country. He was one of the people of the Commonwealth. So, like all other British subjects who made up the people of the Commonwealth, he now owed his allegiance also to the Queen of Australia.
KEANE J: Why?
MS SCHOFF: We rely in that regard upon what Justices McHugh and Callinan said in Re Patterson and we say that Justice Nettle at first instance seemed also to accept that.
KEANE J: Why would he have not still owed allegiance to the Imperial Crown by reason of his Maltese citizenship – or his Maltese birth?
MS SCHOFF: Yes. He was a natural‑born British subject because he was born within the – a dominion of Crown - Malta did not become an independent country until 1964.
KEANE J: Quite. So what happened when the Crown divided, as you say, what happened to remove his allegiance from the Crown Imperial, by reason of his Maltese birth, to the Crown in right of the Commonwealth?
MS SCHOFF: Well, there was no longer an Imperial Crown. Upon the division ‑ ‑ ‑
KEANE J: There was an Imperial Crown.
MS SCHOFF: Upon the division the Imperial Crown, one must accept, divides into a number of Crowns, a Crown in right of the United Kingdom, a Crown in right of Australia. There is no longer a single Imperial Crown.
KEANE J: So what shifted his allegiance from the allegiance that he owed to the Crown in right of the United Kingdom?
MS SCHOFF: The fact that he was already one of the people of the Commonwealth.
EDELMAN J: So was Ms Hill in Sue v Hill.
MS SCHOFF: But Sue v Hill concerned events in 1998 and the Court in Sue v Hill, it only needed to determine this much, determined that at least by 1986 Australia had become an independent sovereign nation with its own Queen. It did not determine that that had occurred at any earlier point. Indeed, we rely on the authority of Sue v Hill to suggest that that did not happen until 1986. These events have been described as metaphysical but ‑ ‑ ‑
GORDON J: Even more than metaphysical ensure the majority, in effect, put paid to this idea, did it not, in paragraphs 27 and 28 when it says whatever had happened by 1948 this idea had now gone.
MS SCHOFF: I will address that, your Honour, because we say that when properly – when one looks at all – when one looks at the 1948 Act and what it actually set out to do, the 1948 Act rested upon common allegiance to an Imperial Crown. It made it plain that nationality was still ‑ the nationality of those subjects of the Queen in Australia was still a British nationality.
GORDON J: I thought the point in Shaw was that the political and constitutional changes had already rendered all of that in a sense to be put to one side. What they say in Shaw is that by 1948 these ideas were no longer able to be run.
MS SCHOFF: Yes, well, we do not accept that.
GORDON J: You say Shaw is wrong.
MS SCHOFF: Yes, we say Shaw is wrong in that regard. We say that by 1948 it was not apparent that the Imperial Crown was no longer. We say, to the contrary, the 1948 Act rested upon the existence of an Imperial Crown upon a common allegiance. When one looks at all that occurred thereafter, the way in which our Commonwealth Parliament provided for domestic rights and privileges, it was all not by reference to citizenship, it was by reference to British subjecthood. Critically, the qualification to be a member of our Parliament included British subjecthood and so we do disagree with what the plurality said in Shaw.
KIEFEL CJ: The plurality in Shaw did not say “at 1948”, it said “by 1948”, the strong implication being that the divisions in the Crown had occurred at an earlier point, but it was not necessary for the Court to determine if there is an exact point or an earlier year. It was not necessary for the purpose of that argument. There were lots of things which had occurred between Federation and 1948 which strongly hint at a much earlier division of the Crown and nationhood.
MS SCHOFF: I accept that, your Honour. The Court in Shaw did not need to determine it. That is why, when I opened, I said your Honours may need to determine it for the purpose of this case. But we want to go to those various matters to demonstrate that it was not at all apparent that the Imperial Crown had divided.
GAGELER J: There seems to be some aspect of the holding in Shaw which you seek to challenge.
MS SCHOFF: Yes.
GAGELER J: It is not currently apparent to me what it is. Whatever it is, do you not need leave to challenge that decision?
KIEFEL CJ: You would need leave to open the question.
MS SCHOFF: Your Honours, it was not ‑ insofar as the plurality made that observation about 1948 that was not part of their – it was only obiter – because that case did not turn on the ‑ ‑ ‑
STEWARD J: Ms Schoff, do you rely upon paragraph 32 of Shaw as perhaps a reason for you not needing to attack the ratio in Shaw?
MS SCHOFF: Absolutely, yes. We do, your Honour.
STEWARD J: Paragraph 32:
This case should be taken as determining that the aliens power has reached all those persons who entered this country after . . . 26 January 1949 ‑ ‑ ‑
MS SCHOFF: Exactly.
STEWARD J: Is that your submission – that is the ratio?
MS SCHOFF: That is our submission, your Honour, and indeed we say there is no authority of this Court that stands in the way of what we contend.
KIEFEL CJ: Are you saying you do not need leave – you are not challenging Shaw? You are saying it is only obiter?
MS SCHOFF: Yes, and that ‑ ‑ ‑
KIEFEL CJ: It is strong obiter.
MS SCHOFF: We would say, your Honour, that the plurality was very careful in the expression of their finding at paragraph 32 and that that is why we do not need to overturn Shaw.
GAGELER J: The statutory status of a British subject continued in Australia until 1987.
MS SCHOFF: Yes.
GAGELER J: Is it your contention that everybody who had that statutory status first under the Nationality Act of 1920 and then under the 1948 Act was not an alien?
MS SCHOFF: Yes.
GAGELER J: That may or may not be – that is consistent with Shaw and certainly not consistent with Nolan.
GORDON J: It is directly contrary to, as I read, paragraphs 22 and then 27 and 28 of Shaw.
MS SCHOFF: Those are the paragraphs of Shaw that we will make submissions about. Firstly, we say, as Justices Gummow and Hayne held in Patterson, the common law position about the status of natural‑born British subjects was carried over into statute by Part I of the Imperial British Nationality and Status of Aliens Act 1914. It was that Act of the Imperial Parliament that deemed to be natural‑born British subjects any person born within His Majesty’s dominion and allegiance.
Justices Gummow and Hayne, in Patterson at paragraph 148, which is to be found at volume 4 of the joint book of authorities at page 1064, accepted that Part I of that Act applied in Australia by paramount force, and that Part II, which dealt with the naturalisation of aliens, required adoption by the self‑governing dominions. That is what our 1920 Act did.
Their Honours Justices Gummow and Hayne noted that our 1920 Nationality Act adopted the whole of the 1914 Imperial Act. It was that Act that was in force in Australia at the time that the appellant arrived, but we say that his common law status, or statutory status as a British subject was a matter of paramount force at the time that he arrived because Australia had not yet enacted the 1948 Act.
In that regard, we refer also to what Latham said in his survey of British Commonwealth affairs, at volume 7, in the joint book of authorities, page 1799, speaking of the “common law rule of long standing”:
that within its general legislative competence the legislature of every self‑governing colony can regulate the incidents or consequences of the imperially valid status of British subject, but not the status itself. This is still the law -
wrote Latham – and this was after the Statute of Westminster. After the Statute of Westminster, questions of nationality continued to rest upon the owing of allegiance to an Imperial Crown. Even the Statute of Westminster itself, in the preamble – which is in volume 2 of the joint book of authorities at page 163, where it is a schedule to the Statute of Westminster Adoption Act – speaks of the Crown as:
the symbol of the free association of the members of the British Commonwealth of Nations –
So, it accepts that there is now a British Commonwealth of Nations. This is at about point 30 on that page:
and as they are united by a common allegiance to the Crown –
It was not apparent in 1942 when the Commonwealth Parliament adopted the Statute of Westminster that there was a divided Crown. The preamble still spoke of a common allegiance to the Crown. In 1948, when one looks at what we refer to now as the Citizenship Act but, indeed, its full title was the Nationality and Citizenship Act, it defined “nationality” as British. Australian citizens – this is in section 7(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.
So, yes, Australia established by the 1948 Act, its own distinct citizenship. But that says nothing of questions of allegiance. It said nothing of questions of nationality or of subjecthood – except that Australian citizens remained of British nationality. That was because they were subjects of an imperial, undivided British Crown. That is another reason why we say it was not apparent in 1948 that the Crown had divided.
Indeed, it is difficult, when one looks at that enactment and then looks at every other enactment, and we have set out the various enactments that dealt with the incidences or consequence of membership of our political community with respect to matters of defence and being able to work in the public service, passports, the franchise. The qualification in every case is not citizenship, it is British subjecthood.
GORDON J: The difficulty about that for me, at least at the moment, is that if you start at paragraph 10 and then work your way through Shaw, each of the propositions you have just put to us seems to me, on the analysis in Shaw, to be to the opposite effect. So, paragraph 10, for example, says - the argument was put there that Mr Shaw was a British subject and, therefore, in a sense, he is not an alien. That premise is flawed and then take the premise, the very premise you would have us accept and reject it, and not by reference to the fact that it is the subject of the 1940 Act and the passing of the Act, but what is described as the political and constitutional changes that have gone on before the Act was enacted and that the Act did nothing more than reflect the position that had been reached.
MS SCHOFF: We say when one looks – at the heart of that decision is the finding by the plurality that what the Nationality and Citizenship Act did was to treat British subjects who were not citizens as aliens with special rights. But, with respect to their Honours, when one reads that Act and looks at the definition of “alien” in section 5(1), it expressly declares:
a British subject, an Irish citizen or a protected person –
to be not aliens. “Alien” is defined as:
a person who is not a British subject –
Their Honours certainly say all those things but when one goes to the Act, when one looks at the Statute of Westminster, when one looks at the Balfour Declaration in 1926, true it is that Australia was emerging as a fully independent sovereign nation but all of those legislative – all of those conventions up to that point and the legislative enactments of the Imperial Parliament and then of the Commonwealth Parliament in 1942 with the Adoption Act and then with the Citizenship Act all rested, continued to rest on allegiance to an undivided Crown.
GAGELER J: You must say then that Shaw was wrongly decided given that Mr Shaw was a British subject at the time he came to Australia with his parents.
MS SCHOFF: The difference between Mr Shaw and the appellant, your Honour, is that Mr Shaw was born after the 1948 Act.
GAGELER J: That is a distinction, but it is not a critical distinction, according to your argument unless you locate the division of the Crown in right of Australia from the Crown in right of the United Kingdom at some time between 1948 and 1972, but you point to no date that is of any significance there, do you?
MS SCHOFF: We say that authority in this Court makes it plain that that division could not have occurred until at least Australia instituted or established its own citizenship. If I can take your Honour to the authorities to that effect. That is why - we do rely on paragraph 32 of Shaw which makes it plain that the aliens power should be treated as having reached those who arrived in this country after the Citizenship Act of 1948 and we say that is a critical distinction to our case, that is why we do not need to overturn Shaw. But we say that every authority in this Court since that time has proceeded on the basis that that establishment of that separate citizenship was critical. Before there was a separate citizenship how does one in any event as a British subject demonstrate allegiance to a Queen other than the imperial undivided Queen.
KEANE J: Well, by answering a call‑up notice to join the Australian Army.
MS SCHOFF: Well, Mr Chetcuti put his – he was in the ballot for Vietnam and he voted in elections. He was a public servant. He was in the birthday ballot for Vietnam. He has acted at all times as one of the people of the Commonwealth. He has never acted in a way that would suggest that he was not allegiant.
KEANE J: Was he amenable to a call‑up notice to join the British Army?
MS SCHOFF: Well, indeed, the position is, as I understand it ‑ although we might be able to answer that question more precisely after the break ‑ but there was no significant difference between Australians and British. Someone living in the United Kingdom could join the Australian forces, just as someone in Australia could join the British forces. There was no difference between them. We were all British subjects.
KIEFEL CJ: That is a voluntary act though, I think what Justice Keane has asked you ‑ whether or not he remained amenable to the coercion of a British call‑up.
MS SCHOFF: Yes. I am not in a position to answer that question. We will see if we can find an answer, your Honour. Can I go to the authorities in this Court to demonstrate that on every occasion that this Court has come to look at the question of British subjects and whether they were aliens it was the establishment of a distinct Australian citizenship that was critical to its consideration of that question.
GAGELER J: What I do not understand at the moment is the relationship between that date, the commencement of the 1948 Act on Australia Day 1949, and your argument about the division of the Crown. How does your acceptance of that critical date for Australian citizenship going forward tie in with this argument about the division of the Crown not having occurred until some later date? Presumably, you say, that people who became Australian citizens after Australia Day 1949 answered the constitutional description of subjects of the Queen and they would be resident in some State. Can you tie the two together in some way?
MS SCHOFF: Because if Australia is to have its own nationality, its own Queen, it needs to have its own – that Queen of Australia needs to have her own subjects who have allegiance to her rather than to the Imperial Crown, and that cannot occur until we have our own distinct citizenship. We have our own distinct subjects of the Queen of Australia. It is one of the essential critical steps to the emergence of that Queen. One needs, as the Court said in Nolan – if I can take the Court to the passage in Nolan at 183 to 184, volume 4 at page 6.
KIEFEL CJ: Which tab is Nolan at?
MS SCHOFF: It is tab 19, your Honour. No, I am sorry, I have completely misled you there. Tab ‑ ‑ ‑
GORDON J: Tab 20, I think.
MS SCHOFF: ‑ ‑ ‑ 20, thank you, your Honour Justice Gordon.
KIEFEL CJ: Could you give us the Commonwealth Law Report reference and page numbers that you are reading from?
MS SCHOFF: Yes, it is reported at (1988) 165 CLR 178, and I am taking your Honours to paragraph 183 at page 184. Indeed, I will start at page 183 of the report at about point 30 on the joint book authority page:
The word [alien] could not, however, 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. Even after federation, Australia did not immediately enjoy the international status of an independent nation. The terms “British subject” and “subject of the Queen” were essentially synonymous. The British Empire continued to consist of one sovereign State and its colonial and other dependencies with the result that there was no need to modify either the perception of an indivisible Imperial Crown or the doctrine that, under the common law, no subject of the Queen was an alien in any part of Her Majesty’s dominions . . .
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 . . . A separate Australian citizenship ‑ ‑ ‑
GORDON J: And stop:
and rendered obsolete notions of an indivisible Crown.
MS SCHOFF: Yes. But their Honours go on to explain why that was.
A separate Australian citizenship was established by the Nationality and Citizenship Act . . . That Act and statutes of other Commonwealth countries, particularly the British Nationality Act 1948 (UK) reflected and formalized the diminished importance of the notion of “British subject”. It became accepted as a “truism” ‑ ‑ ‑
I do not need to read that, but ‑ ‑ ‑
STEWARD J: Just so I am clear, Ms Shaw, your case is that the Crown divided on 26 January 1949. You do not have to pick any other date other than that, do you?
MS SCHOFF: No, no, and, your Honour, we say, at the earliest at that date it divided.
STEWARD J: You do not need any other date, do you, for your case?
MS SCHOFF: I do not need any other date. I say it could not have occurred before 1948. It was at the earliest, that date. The importance of ‑ ‑ ‑
KIEFEL CJ: If there had been a Citizenship Act at an earlier point would that alter your argument? If it had been introduced in 1939/1940, would the Crown have divided at that point because the statute was passed?
MS SCHOFF: It would have been – we would have to make the same submission as at that date, but we say that ‑ ‑ ‑
KIEFEL CJ: That is to accept that there is power in the Commonwealth Parliament under the Constitution at that point to pass that legislation. You accept that?
MS SCHOFF: We do not accept that simply because of the institution of a separate citizenship that that caused the Crown to divide then and there. We simply say it is one of the necessary steps in the evolution of that progressive division of the Crown.
KIEFEL CJ: Well, then, that points to very little. By that, you can be taken to say that the Crown could have divided earlier, or it could have divided later, and the Citizenship Act is an indicium, but you accept that at least by 1948.
MS SCHOFF: Yes, at least and we say ‑ ‑ ‑
KIEFEL CJ: What had occurred by then apart from the Citizenship Act being passed that indicated that the Crown had divided?
MS SCHOFF: No, I have to correct myself. We do not say “at least by 1948 it had divided”, we say “at the earliest” because ‑ ‑ ‑
KIEFEL CJ: All right but if you accept that as at 1948 the Crown has divided, what other indicia apart from the passing of the Citizenship Act do you accept had occurred by that date?
MS SCHOFF: By that date, the Statute of Westminster, the adoption of that Act meant that the Commonwealth Parliament was freed of its previous ‑ ‑ ‑
KIEFEL CJ: Australia had been a signatory to the Treaty of Versailles, the Balfour Declaration, World War II.
MS SCHOFF: Yes, all of those things had happened, your Honour, but even the Balfour Declaration, as we said, rested still upon a common allegiance to an undivided Crown and so once these are all steps – all steps in this evolution ‑ ‑ ‑
KIEFEL CJ: You say 1948 is the earliest, what I cannot quite work out is why 1948?
MS SCHOFF: Because you cannot have a divided Crown until at least you have your own distinct citizenship.
KIEFEL CJ: But that begs the question of the power to create your own citizenship, does it not?
MS SCHOFF: But the Crown – the division has ‑ ‑ ‑
KIEFEL CJ: And to alter the relations between – constitutionally between yourself and the United Kingdom.
MS SCHOFF: But all we are dealing with in this case is whether or not British subjects like the appellant were aliens, and at some point we accept that British subjects, as Nolan tells us, could be treated as aliens.
KIEFEL CJ: Yes.
MS SCHOFF: But that, as Nolan tells us also, could not have occurred before 1948 when we established our own distinct citizenship.
KEANE J: Well, nothing in the passage you have read to us says that. It talks about confirming a position that did exist. The legislation that was put in place confirms and renders it impossible to go back to a previous conventional view whereby there might have been one indivisible Crown, but it is not speaking of having – of 1948 establishing the position. It is confirming an evolutionary process that precedes it.
MS SCHOFF: Can I take your Honour further in the passage on page 691 of the joint book of authorities?
KIEFEL CJ: Is that 184 of the law reports?
MS SCHOFF: Page 184, yes, your Honour.
KEANE J: Just before you do that, though, looking at the passage where it says – the citation from Lord Justice May where it speaks of:
in matters of law and government the Queen of the United Kingdom . . . is entirely independent and distinct from” the Queen of (e.g.) Canada or Australia –
Before 1948, is your submission that if the Crown in right of Canada declared war on the United States of America, Australia too would have been at war with the United States of America?
MS SCHOFF: Well, Australia certainly – the position in Canada may have been different, but vis‑à‑vis Australia and the Imperial Crown, our position is that we were tied to the Crown in that regard. After the break we have got – we know that the Australian Commonwealth Parliament considered itself to be at war when – I have to find my note, I apologise, your Honour – if I can come back to that after the break, your Honour ‑ ‑ ‑
KEANE J: Sure.
MS SCHOFF: ‑ ‑ ‑ because that situation changed too over that period.
STEWARD J: Ms Schoff, do you put your case then on this basis, namely, that the Citizenship Act completed the process over time of independence and division?
MS SCHOFF: No, we do not. We say that that process of independence probably was not completed until the Australia Acts, but ‑ ‑ ‑
STEWARD J: Do you need to go that far for your case?
MS SCHOFF: We do not, but we say the process of division of the Crown which must follow the process of independence, because until you have a completely independent Parliament and a sovereign Australian people under the Constitution, you cannot have your own Crown, you cannot have a Queen of Australia. It needs to be an Australian sovereign and until you have a sovereign people, you cannot have an Australian Crown. But we say that that process just cannot have completed until at least you have got the citizenship, a distinct citizenship.
KEANE J: Why would it not be from the time when the Crown or the Crown’s representatives, that is to say the Governor‑General, takes advice exclusively from the Crown’s Australian ministers?
MS SCHOFF: That is an indicium of independence – that is one of the indicia, but one has to remember that until the passing of the Australia Acts that was not the case with respect to governors of the various States.
KEANE J: But it was the case with respect to the governments of Australia.
MS SCHOFF: Yes, but we are a federation and our levels of government comprise the States and the federation and we would say ‑ ‑ ‑
KEANE J: The powers in relation to immigration and aliens are powers vested in the Commonwealth Parliament. They are matters for the Commonwealth. Within the federation it is the Commonwealth that is responsible in that area.
MS SCHOFF: Yes. That is, as we would say, one step towards independence but until you have your own distinct citizenship what is there to be allegiant to? Who are the subjects of this Queen of Australia? How can she emerge until Australia is a fully independent sovereign nation?
KEANE J: We had “people of the Commonwealth” from 1901.
MS SCHOFF: We did, and they are referred to in the Constitution as subjects of the Queen as well and in ‑ ‑ ‑
KEANE J: They did not cease to be subjects of the Queen. No one is suggesting they ever cease to be subjects of the Queen. The question is whether they were subjects of the Queen in right of the Commonwealth of Australia or whether they were not.
MS SCHOFF: Well, no authority ‑ ‑ ‑
KEANE J: Here we are looking at page 184 in the Commonwealth Law Reports and the passage that you have just read to us from Nolan’s Case suggests that the 1948 Act confirmed a process that had been going on before and apparently was enacted on the footing that it reflected and formalised that process - “formalized”.
MS SCHOFF: Can I take your Honour to further down in that passage at about point 25, speaking of “aliens”:
It is not that the meaning of the word “alien” had altered. That word is and always has been appropriate to describe the status, vis‑à‑vis a former colony which has emerged as an independent nation with its own citizenship, of a non‑citizen who is a British subject by reason of his citizenship of a different sovereign State. But the word is not and never has been appropriate to describe within any part of the territory (whether colonial or otherwise) of a single sovereign State the status of a person who is one of the subjects of that particular State.
So, again, it is not until you have your own citizenship that it would be appropriate to use the word ‑ ‑ ‑
KEANE J: Is that not putting the cart before the horse? Is not the question of sovereignty – an independent sovereignty – is that not what you need before you have a citizen, before you have citizens of the independent sovereign state?
GORDON J: That is the point being made in Shaw. The political and constitutional changes have been so great by 1948, starting at Balfour, as the Chief Justice put to you, going through the conferences, Statute of Westminster, the Imperial Conferences of 1947 and onwards, that you ended up with this independent nation and that was the thing that gave rise to, in effect, the parking of this importance and significance of British subjects that led the Court to say in 28 of Shaw that:
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 United Kingdom.
We had shifted.
MS SCHOFF: Well, we may have shifted, and it may have been apparent to the High Court – the plurality in Shaw – looking back, but if you had said that to, for instance, Mr Billy Hughes at the time, who was one of our longest standing parliamentarians, that he was now – and who had been born in the United Kingdom – that he was now a subject of the Queen of the United Kingdom, it would have taken him by surprise. No one would have thought for a moment that they were subjects of the Queen of the United Kingdom ‑ ‑ ‑
GAGELER J: But under section 25, he became an Australian citizen.
MS SCHOFF: He also became, your Honour, a citizen of the United Kingdom and colonies by virtue of its Act ‑ ‑ ‑
GORDON J: But that is because of the division in 47 at the conference – the whole point of the conference as a result of the actions of Canada was to recognise that we had independent nations, and they wished to recognise the independent countries of which Australia was listed as one in the English Act and that was not some sort of just arrived at – sort of burst forth with this parliamentary draftsman. It arose because of these significant political and constitutional changes.
MS SCHOFF: It is true that each of the nations that made up the Commonwealth had their own citizenship but even that rested upon an allegiance to a common undivided Crown. The Balfour Declaration expresses that. I do not need to say anything other than it is in the preamble to the Statute of Westminster.
EDELMAN J: Why does the constitutional notion of an alien have to be inextricably tied, as opposed to having regard to, matters of citizenship or allegiance? In other words, one could readily accept that citizenship or allegiance might be significant factors to determine whether someone is an alien or is not an alien, but why is the very definition of an alien to be determined by reference to concepts – very vague concepts, particularly in 1901, and evolving concepts of allegiance and citizenship.
MS SCHOFF: It does not have to. On our case, we simply say that at Federation nobody would have considered a British subject to be an alien.
EDELMAN J: Except for most of the founding fathers at the Convention Debates.
MS SCHOFF: Our High Court has said that nobody could possibly have considered a British subject at that time to have been an alien. The other point is that citizenship – a statutory concept – it is quite plain that that also does not define what an alien is. It does not cover the field – as this Court found in Love and as Chief Justice Gibbs made plain in Pochi.
EDELMAN J: So why should allegiance cover the field then?
MS SCHOFF: Our submission is merely that at the time that Mr Chetcuti arrived in this country, that term “alien” did not include British subjects. We do not say that “alien” only meant people who were not British subjects although, of course, that was the statutory definition that the Commonwealth Parliament gave to the term “alien” in 1948. We simply say that a British subject could not possibly have answered the description of “alien” at that time.
So, apart from the decision of Nolan, to which I have already taken your Honours – and to make good that proposition, can I also refer the Court to the judgment of Justice Bell in Love (2020) 94 ALJR 198 at page 241 in volume 6 of the joint book of authorities at page ‑ ‑ ‑
KIEFEL CJ: What tab number?
MS SCHOFF: Tab 34 at page 1570. Paragraph [61], halfway through that paragraph her Honour observed that:
While at Federation there could have been no doubt that a British subject was not an alien, Nolan held that the application of the constitutional term “aliens” had changed, reflecting Australia’s emergence –
of independence. To your Honour Justice Gageler’s judgment at paragraph [96] on page 1577 of the book:
The capacity of the Commonwealth Parliament to exercise the legislative power conferred by s 51(xix) was initially constrained by the continuing application to Australia of Imperial legislation operating by paramount force and by the political reality of Empire reflected in the prevailing doctrine of the unity of the Imperial Crown. Indeed, for some time, it was inaccurate to speak of an “Australian nationality” as distinct from a “British nationality” ‑
We say that situation continued right up until the 1970s where the census taken in the various years – and we have reproduced them all in the appeal book – asked Australians whether they were British or foreign.
GAGELER J: But if you accept paragraph [96], you must reject paragraph [97].
MS SCHOFF: Well, not entirely, your Honour. Indeed, we rely on paragraph [98] of your Honour’s judgment as well which speaks of the development – the sequence of legislative development afterwards saw the supplementation in 1949 and ultimate displacement in 1987 of the statutory status of a British subject with the statutory status of an Australian citizen. So we say that your Honour’s judgment makes it plain that it is not until 1987 that the status of British subject changes such that being a British subject is not a qualification for membership of the Australian political community. It is supplemented by this new citizenship.
In the judgment of Justice Keane at paragraph [160], speaking again of the position - page 1587 of the joint book of authorities:
At Federation, no subject of the British Crown was an alien within any part of the British Empire.
This Court has accepted that that the critical step or a critical step in the evolution that resulted in the emergence of the Queen of Australia – I have taken your Honours to the passage at page 184 in Nolan and if I can also take your Honours to the judgment of Justice Gaudron in Nolan starting at page 696 in the joint volume but at page 189 in the report, at the very bottom of that page, the last paragraph:
There is no specific criterion identified for membership of the community constituting the Australian body politic. By various steps, largely coinciding with the transformation of the Empire into the British Commonwealth of Nations constituted by sovereign and independent nation states, the statutory description of members of the Australian community has been changed from “British subjects” to “Australian citizens”. Until the concept of citizenship was introduced by the Nationality and Citizenship Act 1948 (Cth), later known as the Australian Citizenship Act 1948 (Cth), (“the Citizenship Act”), membership of the community of the body politic of Australia coincided with possession of the status of British subject, at least if the person concerned was resident in Australia. That situation continued after the coming into force of the Citizenship Act, for, although the Act introduced the concept of Australian citizenship and prescribed the method of its acquisition (including by naturalization) . . . an Australian citizen was also a British subject. Following amendments in 1969, an Australian citizen was described as having the status of a British subject. After the Citizenship Act was proclaimed, Australian citizens acquired their status as British subjects by virtue of their Australian citizenship. However, the Act continued to accord a special position (to which more detailed reference will hereafter be made) to British subjects who were not Australian citizens.
It is not until 1984 that all references to the status of British subject are removed from the legislation, so that the concept of Australian statutory citizenship becomes the sole statutory description or qualification for membership of the Australian body politic.
We rely also upon passages in the judgment of Chief Justice Gleeson and Justices Gummow and Hayne in Sue v Hill (1998) 199 CLR 462 at 503, which is in volume 5 of the joint book of authorities commencing at – it is behind tab ‑ ‑ ‑
GORDON J: Tab 31.
MS SCHOFF: Behind tab 31, thank you, your Honour, commencing at page 1455. Now, of course, we concede that for their Honours’ purpose they were concerned with whether or not the United Kingdom had become a foreign power by 1998 so they did not have to necessarily determine that issue at an earlier time.
EDELMAN J: Well, Ms Hill arrived in 1971.
MS SCHOFF: Yes, but the question was when she nominated as a candidate for an election that was to be held in 1998, and so the question is at that time was she a citizen of a foreign power, so that is why that year was relevant. We rely on the passage at paragraph 96:
The point of immediate significance is that the circumstance that the same monarch exercises regal functions under the constitutional arrangements in the United Kingdom and Australia does not deny the proposition that the United Kingdom is a foreign power within the meaning of s 44(i) of the Constitution. Australia and the United Kingdom have their own laws as to nationality so that their citizens owe different allegiances.
In our submission, that supports what the Court was saying in Nolan ‑ indeed, the authority cited is Nolan – as to the significance of having one’s own nationality, one’s own citizenship. It comes back to what Justice Higgins said in Potter v Minahan, nationality is one sovereign, one allegiance, one citizenship.
EDELMAN J: The assumption in Sue v Hill was that this had occurred at least from 1986.
MS SCHOFF: In Sue v Hill the Court concluded that that evolutionary process had come to an end with the Australia Acts in 1986.
EDELMAN J: So why, on your argument then, would not Ms Hill have been able to say, well, I arrived in 1971 before that process had come to a conclusion? I have got this indelible status as a non‑alien. I have never renounced any connection to Australia in the time I have been here, therefore I cannot suddenly become an alien in 1998.
MS SCHOFF: She did not arrive here before 1948 and so on authorities of this Court she could not have maintained that argument.
EDELMAN J: So 1948 then becomes the key date of your argument?
MS SCHOFF: Well, for our purposes, the reason why we are able to put these submissions is because the appellant arrived before 1948, and no authority of this Court has ventured – or it has not been necessary to any authority of this Court to venture prior to that date.
KIEFEL CJ: That might be a convenient time for the Court’s break.
MS SCHOFF: Yes, your Honour.
AT 11.15 AM SHORT ADJOURNMENT
UPON RESUMING AT 11:31 AM:
KIEFEL CJ: Yes, Ms Schoff.
MS SCHOFF: Thank you, your Honour.
KEANE J: Ms Schoff, before you go on, just looking at that passage in Sue v Hill that you read to us – and noting the references to signing treaties – what do you make of the fact, so far as Australia’s separate nationhood is concerned, that Australia signed the Treaty of Versailles as a separate signatory?
MS SCHOFF: It did sign it as a separate signatory, your Honour, but when one looks at the signing page, it is apparent that it is doing so as one of the dominions of the British Empire.
KEANE J: A member nation.
MS SCHOFF: Yes.
KEANE J: But a nation, nonetheless.
MS SCHOFF: Yes. It may have had sovereignty in relation to matters such as that. These are all gradual steps in a progressive division of the Crown.
KEANE J: But insofar as subjecthood or citizenship – whatever one wants to call it – describes a relationship between an individual and a sovereign nation, sovereign state, is not the sovereign state an emergent when we signed the Treaty of Versailles?
MS SCHOFF: We would say no, your Honour, because the sovereign state does not emerge until one recognises its existence, one formally says this is the sovereign state. We are Australians. We are not British nationals any more. We owe our allegiance to a sovereign queen.
KEANE J: Is it that or is it that one takes one’s place – a nation takes its place amongst the nations of the world and then can command the allegiance of its subjects?
MS SCHOFF: By analogy perhaps - you have got training wheels on, your Honour. We were a fledgling nation and it is true there were important matters that we addressed as a sovereign nation, but we were still – right up until at least the middle of the 1970s we considered ourselves to be British and we took those steps along the way. But the Crown, itself – it was not apparent to us that the Crown had divided because all of those steps rested upon allegiance to an undivided Crown. They might be different aspects of sovereignty just as, perhaps, the defence power was a power that could be exercised in an unrestrained form before the aliens power could be.
Initially, we had powers under the Constitution, including powers with respect to extraterritoriality. Now, these matters all developed in time and one by one these powers became unrestricted. Finally, the Imperial Parliament had no paramount force over our Parliament, and we know that also in terms of the judicial power or the executive power these matters all happened in stages and at different times.
EDELMAN J: What is wrong with, for example, the declaratory theory of statehood that is adopted in the Montevideo Convention of territory, population, government and capacity to enter into foreign relations as the constituent elements of nationhood?
MS SCHOFF: All of that is important, but we are here concerned with nationality, and nationality – because we are a constitutional monarchy, we have a monarch as our head of state and that is why we are here trying to discern when the monarch divided, and we know from authority in this Court that that has been a gradual progression. This Court has never had to decide what the magic date was, and all of these are steps in the process, but none of them is of itself the event in the march of history that is, of its own, significant in that regard. For our purposes, we only need to establish that it had not happened at least until Australia had its own separate citizenship, and that did not happen until 1948, or rather 1949 when the Act commenced.
KIEFEL CJ: How have you established that it could not have occurred until then?
MS SCHOFF: By relying on authority in this Court – Nolan – and then the other passages that I took your Honour to, and on the judgments of this Court in Love that referred to the importance of citizenship in that process. So, for instance ‑ ‑ ‑
KIEFEL CJ: That is not to give a complete answer, though, is it?
MS SCHOFF: Well, having one’s own citizenship or group of subjects is important to nationhood. Whilst Australians remained British subjects, they were allegiant to an Imperial Crown.
KIEFEL CJ: I am having you repeat yourself.
MS SCHOFF: Yes, I cannot put it any higher than that.
KIEFEL CJ: Where are we in relation to your outline?
MS SCHOFF: I have dealt with “Meaning of ‘subject of the Queen’ at Federation”. I am about to finish dealing with paragraph 6, “The importance of the introduction of an Australian citizenship”. I merely want to supplement that paragraph with some references to the judgments of this Court in Love, and then I will go on to deal with indelibility.
With respect to the importance of the introduction of an Australian citizenship, I do not need to take the Court to these references, but we rely also on what your Honour the Chief Justice said in Love at page 4, paragraph [9].
It has been observed that another effect of Australia becoming a fully independent sovereign nation, with its own brand of citizenship, was that the word “alien” became synonymous with non‑citizen.
It is not until that occurs that British subjects are not synonymous with alien. The reference in Justice Keane’s judgment in Love at paragraph [164] on page 53:
Since Australia’s emergence as an independent sovereign nation with its own distinct citizenship –
Again, that distinct citizenship was important. Justice Nettle also at paragraph [251]:
That power has been exercised, since 1948, by defining the statutory concept of Australian citizenship and, since 1984, by attaching liabilities of alienage to unlawful non‑citizens.
So the point is, of course, that for so long as we had an undivided Imperial Crown, the statutory definition of “citizen” did not cover the field and British subjects, at least until there was a separate distinct citizenship, could not have been considered aliens, and we go further to say were not considered to be aliens. In Justice Gordon’s judgment at paragraphs [306] to [308], pointing out that in 1948:
There was no statutory concept of Australian “citizenship” before its introduction in 1948. Any equating of the concepts of non‑citizen and alien would thus fail to account for the period from Federation to the passing of the Nationality and Citizenship Act 1948 (Cth). Although the case law may reflect a dispute as to when British subjects became aliens - 1949 or 1986 - there was a period of at least 48 years in which there was no statutory concept of Australian citizenship. Yet during the same period, the aliens power in s 51(xix) of the Constitution had meaning.
At paragraph [307] your Honour Justice Gordon observed that:
In fact, the Nationality and Citizenship Act cannot itself be seen as some transformative event. As enacted, that Act did not, even on its own terms, equate alienage and non‑citizenship. It defined an “alien” as “a person who is not a British subject, an Irish citizen or a protected person”. Alienage was not anchored to, or determined by, the concept of citizenship. Indeed, the status of a British subject continued. A person who was an Australian citizen was a “British subject”. Conversely, citizens of other countries, specifically the United Kingdom and its colonies . . . had the option of citizenship in Australia by registration, rather than naturalisation.
That is another important observation to make about the Nationality and Citizenship Act, that is, it did not require British subjects to be naturalised. It did not require them to take an oath of allegiance. They could, by a simple method of registration, be citizens, but no naturalisation was required and that is because they were not considered to be aliens. That aligns with the foundational judgment of Chief Justice Gibbs in Pochi v MacPhee (1982) 151 CLR 101 and his statement that:
There are strong reasons why the acquisition by an alien of Australian citizenship should be marked by a formal act, and by an acknowledgement of allegiance to the sovereign of Australia.
It was not until 1977 – I will be corrected if I am wrong - that British subjects who wished to become citizens were required to take an oath of allegiance to the Queen of Australia and that, we say, is very significant.
I have finished with the importance of the introduction of an Australian citizenship. Can I then move to a submission that the commencement of the 1948 Act is not “the magic date” and I do not want to repeat myself in that regard, I think I have said that a number of times. We say it is merely a step in the process, a critical step in the process. We have referred to Halsbury’s 3rd edition in 1964. It is volume 1, “Aliens and Nationality” at page 528. We have referred to that in our submissions. The passage is not in the joint book of authorities, but it notes that the 1948 Act was introduced as part of a common code adopted by the various members of the Commonwealth, alteration of which could only be made after consultation and agreement and the common statutes continued to rest on the broad principle of allegiance to the Imperial Crown. We have already made the submission the Act did not alter the nationality status of British subjects or their allegiance to the Queen.
Can we also refer to what Mr Calwell, the Minister for Immigration, told the Parliament when the 1948 Act was introduced or read for a second time. Again, this is not in the joint book, but it is set out in our submissions in full at paragraph 30. I will not read everything he said but he concluded his comments that we have set out by saying:
A British subject who is not Australian‑born will be able to become an Australian citizen by a simple act of registration, but he will not suffer in any way whatever should he fail to do this.
It was not the intention of our Commonwealth Parliament to distinguish in any significant or in any way at all between British subjects who did register to become citizens and those who did not. We rely in that regard upon also the various terms of the 1948 Act, including section 5(1), section 15 and section 16.
GAGELER J: What do you about sections 24 and 25?
MS SCHOFF: We say just like the other provisions relating to citizenship, they introduced what your Honour described as a supplementary path to membership of the political community, but they did not affect the qualification then in place that was British subjecthood. Although Australians now were British subjects by reason of their citizenship, under this Act it remained the case that it was the British subjecthood itself that was the important qualification for all the other domestic rights and privileges afforded under Commonwealth legislation.
So it is that because Mr Chetcuti at the time had not been living in Australia for long enough to qualify automatically as a citizen, that did not affect his status as a British subject. Indeed, he was four at the time. We just say that does not affect his status because of the importance afforded to the status of British subject. It remained the most important qualification and it did so until 1986.
Can I then move to paragraph 11 of our three‑page submission, “Indelibility of non-alien status”. Our contention is that once Mr Chetcuti became a member – or became one of the people of the Commonwealth – once he became a subject of the Queen resident in Australia, he was no longer an alien. He was beyond the aliens power and that status was indelible.
This Court determined in Love that simply because a non‑alien might be a subject or a citizen of a foreign power that it does not follow that they are suddenly back within the aliens power. It cannot have that effect. Our nationhood cannot be that flimsy. There must be some act on the part of the subject or the citizen, if I use that word in its constitutional rather than statutory meaning, that would – an act of renunciation, or some act that was completely contrary to his status as a non‑alien to bring him back within the aliens power – cannot be that Parliament’s power under section 51(xix) is so broad and unfettered that it can declare a non‑alien to be an alien. It is, as Justice Gordon pointed out in Love, a circular argument.
We know, because of this Court’s decision in Love, that there are people who cannot possibly meet the description of “alien”, even though they might be subjects of a foreign state. Indeed, the Constitution makes that plain. On the one hand, section 34 provided, at Federation, that one of the qualifications for membership of our Parliament was that a person be a subject of the Queen. Yet, section 44(i) has a disqualifying condition that you could be a subject of a foreign power. So, the Constitution accepts that one can be a dual citizen, or a dual subject.
In the paradigm example that the Commonwealth puts forward in its submissions, that is, of a person born in Australia to two Australian parents, that is an indelible status. The respondent seeks to limit what this Court found in Love to the indelibility – or an indelible status that attaches to Aboriginal Australians. But we say that indelibility must attach to all non‑aliens.
EDELMAN J: The rationale for indelibility for most of the majority in Love was an intrinsic connection with the Australian land, the Australian community. Your argument is almost the opposite, is it not? It is that the connection is a connection that arose before Australian nationality. It is not a connection to Australia. It is a connection to the British Empire and that is what gives you indelibility.
MS SCHOFF: Yes, but, at a time when all Australians had that connection to the British Empire. It is because the appellant was permitted to come to Australia and take up residence here and became a subject of the Imperial Crown which was our Queen under the Constitution at that time, he became one of the people of Australia. If his status – if he can be treated as an alien simply because of some supervening event – for instance, the conferral of citizenship by a foreign power in circumstances where he has never been to Malta – not since it became a country – he has not sought it – he did not take himself to Malta and apply by a process of naturalisation to become a Maltese citizen - if he can by that event suddenly be within the aliens power then so can – there would be very few Australians who could not.
EDELMAN J: I do not think the submission is that merely that event is what makes him an alien. I think the core of the case against you is that he does not have this indelible quality even if he were a non‑alien prior to arrival in Australia.
MS SCHOFF: The submission against us, as we understand it, is twofold. The first is that upon the enactment of the 1948 Act and the establishment of that distinct citizenship, because Mr Chetcuti was not then a citizen he became at that time an alien, and the answer to that is ‑ ‑ ‑
EDELMAN J: Yes, but you are dealing with the indelibility aspect now.
MS SCHOFF: Yes.
EDELMAN J: You are assuming that he was a non‑alien. You are saying he can never lose that other than by renunciation.
MS SCHOFF: Yes. The respondent’s submissions in that respect are put arguendo on the basis that he was not an alien ‑ he was not an alien when he arrived, he took up residence in this country as a non‑alien, he became one of the people of Australia, and that upon the enactment of the 1948 Act he was then within the aliens power because he was not a citizen, unlike others who had been born in this country. We say that that Act did not have that effect. It did not alienate him. It did the opposite. It expressly said that he was not an alien.
EDELMAN J: But even those who had been born in this country were still within the scope of the aliens power. The only circumstance that the respondent accepts is not within the scope of the aliens power, people who are born in this country to two Australian parents with no foreign citizenship and no renunciation.
MS SCHOFF: We say that cannot be right because it means that every dual citizen is within the scope of the aliens power. Take, for instance, some of the subjects of the decision of this Court in Re Canavan. Take, for instance, Ms Waters. She had been elected as a senator for the State of Queensland at the general election for Parliament held on 2 July 2016. Her circumstances are set out in Re Canavan at [94]. She was born in Winnipeg, Canada in February 1977 to parents who were both Australians. Ms Waters’ parents were in Canada for work and study purposes and neither was a permanent resident of Canada.
Pursuant to section 11 of the 1948 Act, as it then stood, her birth was registered with the Australian High Commission in Ottawa in June 1977 and she was, pursuant to the 1948 Act, an Australian citizen by descent. She left Canada in January 1978 with her parents and returned to live in Australia. This Court held, at [97], that pursuant to Canadian domestic law Ms Waters was “a natural‑born Canadian” because of her birth within Canada. That meant she was ineligible under section 44(i).
None of those matters were controversial, or are controversial in this case, but even though her case is completely obverse to the case of Ms Singh, for instance, who also owed foreign allegiance because of her Indian descent, if you apply foreign allegiance criterion of the plurality in Singh on which the respondent relies in this case, it must follow that Ms Waters was not an Australian by descent when she was born but rather, an alien for the purposes of section 51(xix) requiring naturalisation to make her an Australian national.
GAGELER J: Can we just focus on your indelibility argument for a moment? As I understand it, you say that indelible non‑alien status attaches to a subject of the Queen who was resident in Australia before Australia Day 1949.
MS SCHOFF: Yes.
GAGELER J: Can you give a principled reason why there would be any difference between the indelibility of the non‑alien status of that person and the position of a subject of the Queen who became resident in Australia on 27 January 1949?
MS SCHOFF: We would say there is no reason because they were both British subjects. We point to that distinction because this Court in Shaw said that the aliens power has reached all of those who took up residence in Australia after the 1948 Act.
GAGELER J: I realise that you had difficulty with authority.
MS SCHOFF: Yes.
GAGELER J: You have to get over that difficulty by pointing to some principled reason why there would be a difference between those two dates.
MS SCHOFF: Because if the establishment of a distinct citizenship has the effect of causing the division and if the Commonwealth’s submission is accepted that the Act treated – rather than treating British subjects as members of the Australian political community as people of the Commonwealth rather treated them as aliens with special rights, then that would be the basis for the distinction in the example that your Honour has given.
We do not accept that that is a reason, in principle, to treat them differently. On our contention – although it is not necessary for us to go this far – we would say that both were British subjects. Their British subjecthood was treated by the Commonwealth as qualification for them to become members of the people of Australia.
GAGELER J: My difficulty with that is if you do not accept the principle that you put forward, do you not have a difficulty with Nolan and with Shaw? These are people who are British subjects, who become resident in Australia after Australia Day 1949, in both cases – and in others – held to be aliens.
MS SCHOFF: The only other distinction is this – that Mr Chetcuti had an indelible status as a natural‑born British subject.
GAGELER J: It is the indelibility of that proposition that we are trying to explore.
MS SCHOFF: Yes. He had that status as a natural‑born British subject under imperial law that applied by way of paramount force in this country when he arrived in 1948.
GAGELER J: So it is a 1914 British Act – or Imperial Act – that is critical to your argument in that respect.
MS SCHOFF: Yes. The passage in the judgment of Justices Gummow and Hayne that accepts that that Act applied by imperial force in this country and that our 1920 Act – which was the relevant Commonwealth legislation at the time that Mr Chetcuti arrived, although it had merely adopted the 1914 Act which applied by way of imperial force.
GAGELER J: Then your difficulty is with the Statute of WestminsterAdoption Act in 1942 – from which time it was open to the Commonwealth Parliament to override the effect of the 1914 Act, I think.
MS SCHOFF: But it did not do so, it did not do so. Indeed, the 1948 Act really continued the fundamental provisions of the 1920 Act that treated British subjects, including those born in other countries of the Commonwealth, as persons who were not aliens.
KEANE J: Ms Schoff, in relation to indelibility, do you accept that Mr Chetcuti became a Maltese citizen in 1964?
MS SCHOFF: Yes, he did according to Maltese law, yes. We have not said that he did not or that he has renounced that.
KEANE J: He became a Maltese citizen and he has not renounced and in 1974 Malta became a republic.
MS SCHOFF: I am told it did become a republic.
KEANE J: When you say he has not renounced, if you accept that he was a Maltese citizen and if Malta became a republic in 1974 - I appreciate this is not in the stated case but it is a matter of historical record - why is that not destructive of any allegiance on which you rely?
MS SCHOFF: We rely on the authority of this Court in Love and the bestowal by a foreign power of citizenship upon someone – because, of course, for the purpose of our argument one accepts and we can only – the appellant can only succeed if the Court accepts that by that time he is one of the people of Australia, that he is the subject of the Queen of Australia. So, the bestowal of Maltese citizenship does not mean that he is no longer one of the subjects of the Queen of Australia. It simply means he is a dual subject or a dual citizen. This Court has held in Love ‑ ‑ ‑
KEANE J: But on any view he is not a dual citizen because he never became an Australian citizen, did he?
MS SCHOFF: A dual citizen in the constitutional sense of that word, not a statutory citizen, no, or a dual subject. He has a dual allegiance. That is why we say that the conferral of Maltese citizenship upon him cannot on its own – if he was merely a citizen of Malta and not a subject of Australia he would be an alien. But one has to take into account the fact that he is, on our submission, also a subject of Australia. So, to find – if the Court comes with us that far, then to hold that his Maltese citizenship puts him within the aliens power, that would be a problematic finding for many, many Australians who have dual citizenship.
EDELMAN J: How can, in circumstances where a person was before nationhood a citizen of an undivided Crown, there would be a power to confer Australian citizenship on them if they are outside section 51(xix).
MS SCHOFF: I do not follow the question, I am sorry.
EDELMAN J: Does not the aliens power itself confer the power on the Commonwealth Parliament in relation to making citizenship laws? If a person is outside that power, then the Commonwealth Parliament could not pass a law to confer Australian citizenship on them.
MS SCHOFF: That might be so because the power is with respect to aliens. We say that the appellant was not an alien and, indeed, all British subjects born in this country also perhaps were not aliens.
GORDON J: While you are distracted, may I just ask one practical question. Your client left Australia in 1958 and came back in 1959. Does that alter the analysis at all?
MS SCHOFF: No, your Honour.
GORDON J: Why is that?
MS SCHOFF: Because he came to Australia to take up residence here. If he leaves, it does not indicate – and it is not any fact in the case stated that that somehow signified a decision to abandon his residence here. If he went on a holiday to Malta, that would not affect his status as a resident in this country.
KIEFEL CJ: He was a visa holder at that time, was he not, during that period?
MS SCHOFF: No, he came as a – I do not believe he was – he came as a British subject, he did not require a visa, he was ‑ ‑ ‑
KIEFEL CJ: When did he acquire the absorption visa?
MS SCHOFF: Deemed in 1994. He had never been required to have a visa and, indeed, he came to Australia under an assisted passage scheme that sought to bring British subjects to Australia to become Australians.
GORDON J: In Shaw, the plurality said that was not inconsistent with them being aliens, coming out on assisted passage.
MS SCHOFF: Yes, but Mr Shaw, of course, was born in ‑ ‑ ‑
GORDON J: Paragraph 4 of Shaw.
MS SCHOFF: Yes. Mr Shaw was born in 1972 and arrived in Australia in 1973. We say that the appellant has done nothing to alienate himself and it is not suggested by the respondent that he has or that his trip to what was then not Malta either – we have to remember that Malta was not a country until 1964, it was still a protectorate of Britain. He has never been to the country of Malta. It is not asserted by the respondent that he has done anything to alienate himself. The respondent merely relies upon this conferral of Maltese citizenship and the effects they say of the 1948 Act.
I have very limited time left, I think I have got five more minutes, so unless there is anything in particular I would like to just quickly address our alternative argument, and I do not need to say much other than this, that if you accept the respondent’s definition of an “alien” in paragraph 7 of their submission that it is:
no more and no less than a person who has not been admitted to formal membership of the community that constitutes the (relevant) body politic, according to the prevailing test for membership prescribed by law -
then Mr Chetcuti was admitted according to that prevailing test when he was permitted to take up residence here and the only qualification he needed was his British subjecthood. We rely on what Chief Justice Gleeson said in Te at 24 about the power to make laws with respect to aliens. It is at volume 4 of the joint book of authorities at page 904, and I should give your Honours the citation ‑ ‑ ‑
EDELMAN J: This alternative argument also requires the indelibility addition, does it not?
MS SCHOFF: It does. It means that he was admitted to membership, he became a non‑alien in 1948 and that status is then indelible. The power to make laws with respect to aliens has been understood as a wide power equipping Parliament with the capacity to decide on behalf of the Australian community who will be admitted to formal membership of the community. Alienage is its legal status. Naturalisation is the act in the law by which a person who was formerly an alien ceases to be one. The power conferred by section 51(xix) includes a power to determine legal status.
Now, we accept that an alien can only become naturalised or a non‑alien by an Act of Parliament. This Court has said that absorption into the community is not enough, and that was the case in Te and in Ame and also in Pochi. We accept there needs to be an Act of Parliament, but we say that that Act of Parliament, the 1948 Act, can only be seen in that light if Mr Chetcuti was an alien as an exercise of that power with respect to aliens because it treated him as a British subject, and that qualification was enough to permit him to take up residence here.
Also if we need to go back to a time at the time of his arrival, then it would be the 1920 Act which again conferred rights upon British subjects, and we rely in particular on Justice Gaudron’s judgment in Nolan at paragraph 190 and paragraph 191 where her Honour held that:
Until the concept of citizenship was introduced . . . membership of the community of the body politic of Australia coincided with possession of the status of British subject, at least if the person concerned was resident in Australia. That situation continued after the coming into force of the Citizenship Act –
and it did not change until the 1980s. So that if he was an alien he was admitted as one of the people of the Commonwealth by virtue of that Act.
The final thing that is important for our purposes is the effect of the Electoral Act of 1918 and amendments to it with respect to the qualification for membership of Parliament. I need to tell your Honours the sections we rely upon because it is a point we thought of late, so it is not in our written submissions. But we point to the fact that the Electoral Act of 1918 in section 69 made it plain that the qualification to be a member of Parliament was those qualifications set out in section 34 of the Constitution. There was no legislative change to those qualifications. Then in 1925 the Electoral Act of 1925, section 4, which is in volume 2 at page 108 enacted that:
The qualifications of a Member of the House of Representatives shall be as follows –
and introduced subsection (b):
He must be a subject of the King, either natural born or for at least five years naturalized under a law of the United Kingdom or of the Commonwealth –
That, in 1949, following the enactment or commencement of the Citizenship Act the Commonwealth Electoral Act, No 10 of 1949, amended section 69 and that is at the joint book of authorities behind tab 8, page 111 so that subsection (b) was replaced merely by the qualification “he must be a British subject”.
So, even after the introduction of the Citizenship Act British subjecthood remained the important qualification not just for membership of the people of Australia, not just for every domestic right and privilege but critically to be a Member of Parliament and it cannot have been that the Parliament introduced a qualification that would itself have been unconstitutional if at that time the Crown had divided and British subjects could have been, particularly those born in the United Kingdom, remembering that section 7 of the Citizenship Act included those British subjects born in other countries of the Commonwealth of nations, it could not have been that the qualification introduced by Parliament was one that would have instantly, in the case of some British subjects, made them disqualified under the Constitution from being Members of Parliament. That would be absurd, in our submission.
It is a good indication that, although it may have been apparent to Justices of this Court sitting in judgments in 1988 or in 2001 that the Crown had divided in 1949, as we have submitted it certainly was not apparent to anyone at that time.
I wanted to tell your Honour Justice Keane in response to your question about the powers of declaring war and the like, we have footnoted in our submissions at footnote 94 the effects of – or how the Commonwealth Parliament considered itself bound to be at war depending on the imperial declarations of war and so we have footnoted those steps in that process.
With respect to Canada, its relationship with the sovereign Imperial Crown could have been different but if it had brought the Imperial Crown into a war then Australia also may have considered itself to be at war at least in 1939 as we footnoted at ‑ ‑ ‑
KEANE J: That would be contrary to what was agreed at the 1917 conference of Prime Ministers where it was agreed between the various parties that one dominion getting itself into a war would not have involved the others.
MS SCHOFF: No, indeed, and that is why we say it would only have been if the Imperial Crown considered itself at war that Australia would have. Unless there is anything further.
KIEFEL CJ: Solicitor‑General for the Commonwealth.
MR DONAGHUE: Your Honours, I propose to structure our submissions in four parts: first, to make some foundational submissions concerning the two different aspects of the aliens power, the first of which is, we submit, of critical importance to this case; second, to address the significance of the appellant’s status since 1964 as a citizen of Malta, which we have called proposition 1, and our submission is that your Honours could reject the appeal just on the basis of proposition 1 without getting into any of the very interesting questions about Australian independence.
But if your Honours choose to get to those issues then that is our third topic, which is the significance of the appellant’s status as a British subject at the date of his arrival in Australia on 31 July 1948 or whether it is open to Parliament to treat him as an alien. That submission has two key parts to it. The first is to look in a little more detail than your Honours have so far at the 1948 Act, and the second – which really arises principally by reason of ground 1 of our notice of contention, which you do not need to go to but you will find at 459 of the core appeal book – concerns the date of independence about which so much has been said.
Your Honours will have realised that Justice Nettle was with us below in finding that Australia had achieved sufficient independence by 1942, the date of the Adoption Act of the Statute of Westminster, but against us on our submissions concerning independence at an earlier date, being either the Balfour Declaration in 1926 or the enactment of the Statute of Westminster in 1931, and those two dates are in play before this Court by reason of the notice of contention.
GAGELER J: Does your proposition 1 go so far as to say that all dual citizens can be treated by the Parliament as aliens?
MR DONAGHUE: Can be treated by the Parliament as aliens – yes.
GAGELER J: It might be the larger proposition, I think.
MR DONAGHUE: Well, your Honour, are not aliens while dual citizens.
GAGELER J: But can be made aliens.
MR DONAGHUE: But if they maintain dual citizenship can be made aliens, and I will develop that.
GAGELER J: Yes.
MR DONAGHUE: In effect, we submit that is a realm of parliamentary choice, so Parliament – it is within Parliament’s power to choose, as Parliament did for a long time choose not to permit dual citizenship.
The fourth area of our submissions will be addressed by Mr Lenehan, which is ground 2 of our notice of contention, proposition 3 in our oral outline, which is the proposition that from the time of the creation of the Australian body politic on the Constitution coming into force the aliens power contained the capacity for the Parliament to define the criteria for membership of the body politic, including by excluding British subjects. Justice Nettle did not find it necessary to decide that issue at all. Mr Lenehan will also say something very brief about relief.
So can I start with the foundational proposition as to the aliens power with this observation? This Court has acknowledged many times – and I will not take your Honours to all of them, but we have collected the references in paragraph 5 of our submissions – that at the time of Federation the concept of alienage did not have an established or immutable meaning. The very concept was in a state of flux.
There were different and competing theories in the common law world and in continental Europe in particular as to the applicable – as to the significance of place of birth or parentage in particular, and there was an amalgam in many places of those two principles by reason of, in England, statutory modification of the common law rule so the common law attributed decisive significance to place of birth but statutory modification added parentage in various situations.
So it was because the Court has said many times of these competing theories that the very topic of the definition of an alien was recognised as something appropriate to parliamentary choice. The logical consequence of that state of affairs, in our submission, is that it cannot be a constitutional fact whether or not a person is an alien because the answer to the question is the person an alien depends upon how Parliament has decided from time to time to accommodate the competing theories or strands.
Another way of putting that is to say there is, in our submission, no such thing as a determining criterion for whether someone is or is not an alien. There are available criterion and some unavailable ones, but no answer supplied by the Constitution to the question of whether any particular person is or is not an alien.
To illustrate, if we take the example of a person born outside Australia to two Australian parents. You cannot tell whether that person is an alien by reference to the Constitution. The Constitution gives you no answer to that question. The person might, on the common law approach, be an alien simply because they were born outside Australia. They might, on the jus sanguinis European approach, be a citizen because notwithstanding that they were born outside the country their parentage is such – and, indeed, you could modify the example and say, parentage of the nationality of the father or the mother might depend on whether the parents are married. There are a range of variations there – all of which are for Parliament and so, in order to answer the question of that person’s status, one has to look at the prevailing law at the time. Normally, now statutory ‑ ‑ ‑
EDELMAN J: But that does not mean that the concept of “alien” has no meaning. If it still has a meaning but its meaning is at a level of generality that is sufficiently high to allow a great degree – maybe not complete latitude – to the Parliament to legislate. So, one might – some of the judgments in Love suggested use a phrase like a person that “belongs” to the Australian political community then one still has to ask, what has the relevant legislation determined in terms of belonging but subject to the limiting boundaries of that concept itself.
MR DONAGHUE: I accept that, your Honour. Our submission is that that is a constraint on power.
EDELMAN J: Yes.
MR DONAGHUE: So, I accept that there is a constraint on power but within that constraint there is no answer other than the answer that Parliament has given from time to time and it might change because any legislative power can be exercised in different ways from time to time. So, the consequence of that is, in our submission – and we have set this out in paragraph 2 of our outline and also in writing – that the aliens power has two aspects.
In putting the submission, your Honours, we are putting what we understand to be the settled doctrine of the Court – recorded, in particular, in paragraph 2 of the plurality judgment in Shaw. It might be worth me taking your Honours to Shaw. It is in volume 5, tab 29. Shaw is (2003) 218 CLR 28. Paragraph 2 is a passage in the joint judgment of three members of the Court. Justice Heydon at 190 agrees with this statement so that it commands the authority of a majority of the Court. The first sentence of paragraph (2):
the power conferred by 51(xix) of the Constitution supported legislation determining those to whom the status of “alien” was to be attributed.
That is the first aspect of the power and that is what I have just been addressing. The next, following the semicolon, is the second aspect of the power – the power to:
make laws which imposed upon those having that status burdens, obligations and disqualifications which the Parliament could not impose on other persons –
Then, the Court goes back in speaking of naturalisation to power to remove the status which is really that being an aspect of the first aspect of the power. Parliament can decide who are aliens. It can remove the status of alien. That explains why citizenship may be seen as the obverse of the status of alienage because, subject to the qualification, the limit on legislative power that Parliament cannot describe as an alien someone who could not possibly answer the description, an alien is nothing more or nothing less than a person who does not satisfy the criteria for membership of community that Parliament has prescribed in enacting laws pursuant to the first aspect of the aliens power.
That first aspect of the power is an aspect of the identically worded Canadian power that, as your Honour Justice Gageler pointed out in Love at paragraph 84 and I will not take your Honours to it, but the Privy Council had recognised that the same wording in the Canadian Constitution also conferred that first aspect of the power in a case called Cunningham v Tomey Homma [1903] AC 151 at 156 cited by Justice Gageler at 84 in Love.
So that, in our submission, it is never the right question to ask whether somebody – to ask as a question of constitutional law, is somebody an alien or not. The right question is is it open to Parliament to treat the person as an alien and if it is then their status depends upon the law that Parliament has passed from time to time.
Against the background of those submissions, we respectfully submit – which are the same submissions we put to Justice Nettle below, we respectfully submit that his Honour slightly mischaracterised our submission at paragraphs 22, 26 and 45 of his Honour’s judgment in characterising the submissions as being about the evolution of the ordinary meaning of the word.
We do not submit that it is important to look at an evolving meaning of “alien”. In our submission, the word has always meant what I have just submitted it means. There may perhaps have been differences as to who could not possibly answer the description but subject to that limit on legislative power, the aliens power, in our submission, works in the way identified in paragraph 2 of Shaw which, of course, means that there is great significance attached to the way that Parliament has chosen to define the rules of membership.
Against that background can I turn then, your Honours, to proposition 1, the significance of the status as a citizen of Malta. This submission was that irrespective of what the position might have been on 31 July 1948 it was open to the Parliament to treat the appellant as an alien because he has since 1964 been a citizen of a foreign country, Malta.
Justice Nettle, as we understand his Honour’s reasons, accepted this submission at paragraph 36 of his reasons on page 443 of the core appeal book. His Honour said there in paragraph 36, about halfway down the paragraph:
on 1 January 1949, the plaintiff became a citizen of the United Kingdom and Colonies by virtue of the British Nationality Act 1948, and then, on 21 September 1964, Malta gained independent statehood, whereupon the plaintiff ceased to be a citizen of the United Kingdom and Colonies and became a citizen of Malta owing an obligation of permanent allegiance to Malta.
His Honour then refers to some reasoning of Justice Gaudron that I will come back to later in my submissions and concludes by saying that:
There can be no doubt that, generally speaking, it is within the legislative competence of the Parliament to treat a foreign citizen, who is not an Australian citizen, as an alien -
citing Singh at 200 and Ame at 35, both of which I will come to.
GAGELER J: Mr Solicitor, there is real tension between your proposition 1 and how you have opened on the scope of the aliens power because Parliament has not treated Mr Chetcuti as an alien because he owes allegiance to a foreign power. That is just not the way it has been done. There is no legislated criterion that makes him an alien because he is a citizen of Malta.
MR DONAGHUE: The legislative criteria that makes him an alien is that he does not meet the criterion to be a citizen.
STEWARD J: Well, I was going to ask you about that, Mr Solicitor. How has Parliament treated Mr Chetcuti as an alien? We do not have an Aliens Act any more.
MR DONAGHUE: Your Honour, the answer to that is in section 25 of the Citizenship Act of 1948 when Parliament chose at that time a particular category of British subjects and it said, you, British subjects who meet these criteria, are citizens. All the other British subjects who do not meet these criteria have a pathway to citizenship but if you do not take the pathway to citizenship then you are a non‑citizen, and on the authority of paragraph 2 of Shaw, that makes you an alien. So it is the obverse of the affirmative criteria enacted ‑ ‑ ‑
STEWARD J: Given that Parliament can choose to decide who is an alien and who is not, upon that Act expiring is he still treated as an alien?
MR DONAGHUE: Yes, because he has never become a citizen.
STEWARD J: I see.
MR DONAGHUE: So really – to come back your Honour Justice Gageler and the tension – proposition 1 is directed to saying that we have accepted here and in other cases that the limit identified by Justice Gibbs in Pochi is a limit on the legislative power. So if it could be said that someone cannot possibly answer the description of an alien, then treatment of them as such would not be valid. Proposition 1 is saying, one of the things that will deny the application of that criteria in Pochi is foreign allegiance. So, one of the things which Parliament can choose ‑ does not have to choose, but one of the things that Parliament can choose to say is enough to treat you as an alien is that you owe allegiance to another power.
So, if I am right in saying that, there is no legislative constraint upon the parliamentary choice, and I accept what your Honour says, that there is not a provision that says if you are a citizen of a foreign country you will not be an alien, but the law that sets the criteria will be valid because it will be within the scope of the first aspect of the aliens power.
GORDON J: Is that not circular? Is it not saying – I mean, the limit in Pochi is that Parliament cannot itself define what is within the aliens power, what is the concept, what is the thing that meets that test, and you are now saying, well, hang on a minute, Parliament can pass a law which identifies one of the criteria that takes someone out of that and puts them back in.
MR DONAGHUE: Well, in my submission, your Honour, it is not circular. That is, the essence of the first aspect of the aliens power is that Parliament could, at least by choosing the things that have been treated by the law historically as relevant to alienage status, decide which ones – who is to be an alien according to such criteria as it chooses and subject to the limit.
One can test the proposition I am putting here perhaps in this way. From the time of the enactment of the 1948 Act – and if your Honours have it there it is – take this slightly out of order but the Act is in volume 2, tab 11. From the time of its enactment it included section 17 which was about loss of citizenship - the first section in the division headed “Loss of Citizenship”, and it said:
An Australian citizen of full age and of full capacity, who, whilst outside Australia and New Guinea, by some voluntary and formal act, other than marriage, acquires the nationality or citizenship of a country other than Australia, shall thereupon cease to be an Australian citizen.
So that when the concept was created it was envisaged that a person who was not an alien, who was an Australian citizen perhaps born in Australia to Australian parents, met all of the criteria, would lose that status by reason of one fact alone, foreign allegiance. In our submission, if section 17 is valid, that is an illustration of the fact that it is open to Parliament to choose these criteria as decisive of status and to say if you choose to become a foreign citizen you are out.
EDELMAN J: Why do you need to go that far? This is a case, as I understand it, where it is not just foreign citizenship that you rely upon, it is a case where he is born outside Australia, is now a foreign citizen and was not born to two Australian citizen parents, or even to one.
MR DONAGHUE: Indeed. The answer to your Honour’s question is I do not need to go that far in my submission on all of the criteria, outside Australia, no Australian parents and never became an Australian citizen. In my submission he is easily within – so I do not need to go that far.
EDELMAN J: So, the argument that indelibility has to say – that indelibility extends to persons who – not just who have foreign citizenship, but also foreign citizens who do not have even one Australian citizen parent and who are not Australian citizens or born in Australia themselves.
MR DONAGHUE: Given the facts of the case, it would be possible to confine the ruling of the Court in that way. My submission is as a matter of principle that if one is construing the width of the aliens power, it is the head of legislative power like any other head of power to be read with all the generality that the words admit and that within the realm of matters that allow this man, the appellant, to be treated as an alien, it would be enough without any of the more complicated questions about independence to say that Parliament can choose, without extending across the Pochi limit, to treat a foreign citizen as an alien. That is within the scope of the legislative power.
In my submission, section 17 is an illustration of significance being given to that concept but the submission I have just made as we read the Court’s reasoning in Singh is consistent with what the Court there held. Perhaps I think I can deal with Singh quickly if it is convenient to the Court. If your Honours could turn to that in volume 5, tab 30, Singh v the Commonwealth (2004) 222 CLR 322. The leading judgment is the joint judgment of Justices Gummow, Hayne and Heydon. If your Honours could go to the start of that judgment, at the bottom of page 380 of the report.
In the very first paragraph, the facts that their Honours treat as determinative are identified: born in Australia to parents who are citizens of India and not Australians citizens or permanent residents. The plaintiff is a citizen of India and is not an Australian citizen. It is those two facts that were critical. At 144 you will see the special case question was identified. In my respectful submission, the question would have been better framed as, is the plaintiff someone whom Parliament can treat as an alien rather than is an alien – but the answer was yes. Why? In a sentence:
As a citizen of India the plaintiff has obligations, “owes allegiance”, to a nation other than Australia. She is, therefore, a person within the class referred to -
I accept that in my submission one needs to read Singh as identifying matters that entitle Parliament to treat someone as an alien rather than as answering the status and there are some passages – 144 is one and 200 is another – which seem to go straight to the answer and to say that foreign allegiance is enough. In my submission the better way to read those passages is as reflecting the fact that Parliament can choose to treat that characteristic as decisive.
Your Honours see, if you could go forward to 190 on page 395, under the heading “What the history demonstrates”, there is an emphasis on ‑ ‑ ‑
GORDON J: Sorry, what paragraph was that, Mr Solicitor?
MR DONAGHUE: I am sorry, 190, your Honour. Really at the end of 190 you see their Honours saying:
“Aliens”, even if it had once had a fixed legal meaning, did not bear such a meaning by the end of the nineteenth century. But what did remain unaltered was that “aliens” included those who owed allegiance to another sovereign power, or who, having no nationality, owed no allegiance to any sovereign power.
So I submit your Honours should read that as “aliens” is capable of including people with those characteristics. At 195 their Honours reject the notion that the aliens power should be understood as a one‑way street, empowering persons to become non‑aliens but not allowing that status to be removed; rather difficult to reconcile with the indelibility submissions your Honours have heard.
The last sentence of 195 clearly contemplates legislation removing status as a citizen and returning someone to status as an alien, including on the basis of ties to a foreign power just like section 17 did. At 198, part of the explanation for the rejection of the one‑way street is the difficulty it would present:
accommodating political changes like the changes in the relationship between the United Kingdom and Australia since Federation -
or the change at PNG, which we will come to. Then there are the key ratio passages at 200 and 205. So the second half of 200 uses language that I accept needs to be understood in the sense that I have already identified. When it speaks of:
The central characteristic of that status is, and always has been, owing obligations (allegiance) to a sovereign power other than –
Australia, that should, in my submission, be understood as meaning a central characteristic, therefore that Parliament can choose to treat as decisive.
GAGELER J: Even then it is not quite right, is it, because it leaves out stateless persons that have been mentioned earlier on?
MR DONAGHUE: The omission of those persons, in my submission, does not mean that it is not true, that you can choose foreign allegiance as the decisive criteria. It means it is not complete, that it is definitely not complete, because it also does not cover parentage and place of birth in that formulation. So as an exhaustive statement it is clearly not right but, in my submission, it is not an exhaustive statement; it is an identification of something that can be critical and on the facts of this case something that was critical because when you go to 205, quoting Nolan their Honours say:
“alien” “[u]sed as a descriptive word to describe a person’s lack of relationship with a country … means, as a matter of ordinary language, ‘nothing more than a citizen or subject of a foreign state’”. It was common ground that the plaintiff is a citizen of India. She is, therefore, a citizen of a foreign state.
Therefore, she is within the power.
GAGELER J: But I mean, that is grossly – I do not mean to criticise it too much, but that leaves out dual citizens as well. There are lots of problems with these statements, Mr Solicitor.
MR DONAGHUE: There are lots of problems with them if they are not read consistently with the submissions I have made as to the first aspect of the power, because on their face they seem to suggest that you can answer the question is someone an alien or not without reference to the legislation that Parliament has passed. If that is what they mean then, in my submission, I do not support them. But in my submission ‑ ‑ ‑
GORDON J: But it is what they mean though when you go back and look at the way in which they analyse the concept of “alien”, is it not? You cannot pick up paragraphs and sentences without understanding the very detailed analysis that goes on for pages.
MR DONAGHUE: Your Honour, in my submission, I am not doing that though because the long discussion of the history and including the statement at the end of 190 is recognising Parliament’s power to choose between the competing streams. So, if their Honours did not think that you needed to look at the legislation, it is not easy to understand why they went through that analysis. It is just that the point of the conclusions, that analysis is not injected into the way the principle is framed.
So, in my submission, it is a fair reading of this judgment to say that what their Honours are saying is because Ms Singh was a citizen of India that fact alone meant Parliament was entitled to treat her as an alien, even though she was born in Australia. That fact alone could be given decisive significance.
KIEFEL CJ: Mr Solicitor, Chief Justice Gleeson does not adopt this reasoning or the statements in the passages that you have referred to.
MR DONAGHUE: In his Honour’s reasons ‑ ‑ ‑
KIEFEL CJ: At 30 and 32 certainly state that being a citizen of a foreign State might be open to Parliament to legislate but I do not think his Honour goes so far, one could not attribute to him an acceptance of the statement in the passages that you are ‑ ‑ ‑
MR DONAGHUE: The central characteristics or determinative characteristics statement. I think that is true there, your Honour, although I think that his Honour is a party to the joint judgment in Ame, I believe, which uses the same kind of formulation. But his Honour at 30 and 32 is certainly, in my submission, saying that the fact that Ms Singh was a citizen of India was enough to allow her to be treated as an alien. Of course, your Honours will recall that the debate in Singh was whether, having been born in Australia, Ms Singh was indelibly a non‑alien, the answer was no and the feature that was fixed upon was her foreign citizenship, nothing else.
So, I will come to Ame later, your Honours but I certainly – and his Honour the Chief Justice was a party to the joint judgment there but if your Honours were to form a view that paragraph 200 is intention with the first aspect of the alien power - paragraph 2 of Singh then, in my submission, your Honour should follow – sorry, paragraph 2 of Shaw, your Honours should follow Shaw. But, in my submission, the better view is to accommodate them in the way that I have tried to do. I note the time, your Honours.
KIEFEL CJ: I see the time. We will adjourn to 2.15.
AT 12.52 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
KIEFEL CJ: Yes, Mr Solicitor.
MR DONAGHUE: Thank you, your Honour. Your Honours, by way of summary on where I have reached in respect of proposition 1, our submission is that the appellant was within the reach of the aliens power because, one, he is not and has never been an Australian citizen and, two, he is a foreign citizen and has been since 1964.
In our submission, the only reason that has been advanced why that might not be so are the submissions that our friends have advanced under the banner of “indelibility”. In our submission, it is important in considering those submissions to distinguish between what we think are two different concepts.
The first is the concept that a person is just beyond the reach of the first aspect of the aliens power, by reason of the Pochi‑type limit. In our submission, the majority holding of the Court in Love is an illustration of that concept. That is, a person is not an alien because the power of the Parliament does not extend to treating them in that way. That is not really, in our submission, an indelibility proposition, that is just a proposition that the person has a status that Parliament cannot modify but I suppose the “indelibility” word could be used to describe it.
If that is the relevant sense then, in our submission, it encounters this problem: that even if it were to be assumed in favour of the appellant that, as at 1948 when he arrived in Australia he was not within the reach of the aliens power and we dispute that proposition for reasons I will come to, but even if that were to be assumed, using indelibility in the way I have just described it does not explain why when circumstances change such that the person, the appellant, would come to fall within the reach of the aliens power then that power cannot be exercised with respect to him. In other words, it does not explain why status at 1948 tells you anything about status after 1964 when material changes happened such that even if he was previously beyond the reach of the power he came to fall within it.
The other way that the indelibility concept seems to be being used is it is being said ‑ and this was clearest, I think, from our friend’s alternative argument ‑ they said, well, even if we are within the first aspect of the aliens power, we were not treated as aliens at the time when we arrived in June 1948 – in July 1948, and that can never be changed other than by some act on our part that renounces the Australian citizenship or is otherwise inconsistent with it.
In our submission, viewing the argument in that way, it is an argument that this Court has heard before and has rejected before, squarely in the context of recognising that changes in the international relations between Australia and other countries can have the consequence of changing someone’s status for the purposes of the reach of the aliens power even without any individual act on their part that might be regarded as renouncing or inconsistent with citizenship.
Justice Nettle so held in paragraph 36 in the judgment below at page 443 of the core appeal book, but I will not take your Honours to it. The case that is clearest is the decision of this Court in Re Minister for Immigration Ex parte Ame, which is in volume 4, tab 26. It is (2005) 222 CLR 439, if I could ask your Honours to go to that.
I am taking your Honours to this for the purpose of advancing the proposition that the changes that occurred within the international community that led to Malta becoming independent and that, under a combination of Maltese legislation and United Kingdom legislation that resulted in the appellant ceasing to be a citizen of the United Kingdom and colonies and becoming a citizen of Malta, are changes of a kind that are capable of bringing a person within the aliens power.
The legislative regime that brought about that change, the creation of Maltese independence, the loss of UK citizenship, the grant of Maltese citizenship, were very closely analogous to the same changes that occurred in Papua New Guinea when it acquired independence in 1975. It is that event which is the subject of the decision of the Court in Ame.
If your Honours could turn to paragraph 34 on page 458? This is in the joint judgment of Chief Justice Gleeson and Justices McHugh, Gummow, Hayne, Callinan and Heydon. Their Honours, at 34, recount the relevant part of the argument. It was argued “that there is a limitation inherent” in the aliens power:
that prevents that power from being applied unilaterally (that is, without the consent of the individual manifested by renunciation or some similar act) to change a person’s status from non‑alien to alien.
That argument is rejected for two reasons. The first reason is in the balance of the paragraph which has said, well, you are overlooking the fact that section 122 was an available head of power here as well. But, quite separately from the territories’ power answer at paragraph 35, the joint judgment goes on to say:
In any event, no limitation of the kind proposed applies to the power conferred by s 51(xix).
I will not read what follows but one then gets to two points that are identified as emerging from Singh. The first needs to be read subject to the same qualifications that I advanced prior to lunch in relation to Singh. There, their Honours refer to a defining characteristic rather than a central characteristic. Again, our submission is there is no such thing as a matter of constitutional fact but there are matters that Parliament can treat as defining more central characteristics, allegiance to a foreign sovereign power being one of them. But the more important point for present purposes is the second point that their Honours emphasise:
changes in the national and international context in which s 51(xix) is to be applied may have an important bearing upon its practical operation.
There are references to Sue v Hill, Shaw, and Singh, illustrating the way:
changes in national and international circumstances may affect the application of terms such as “foreign” and “alien”.
Singh is identified in 36 as having rejected the view of a bilateral relationship:
which requires an act on the part of the person whose status is –
to be lost. At 37, the Court says, from four lines down:
When Papua ceased to be an external Territory of Australia, and became part of the sovereign Independent State of Papua New Guinea, the people of Papua owed allegiance to a new sovereign State. Their rights and obligations were declared by the Papua New Guinea Constitution . . . It was within the power of Parliament ‑
That is the Commonwealth Parliament:
cognisant of those provisions, to respond to the change in sovereign rights, and the new realities affecting the relationship between the inhabitants of Papua and their government, by treating those inhabitants as aliens and withdrawing their Australian citizenship.
So, in our submission, in terms Ame recognises that someone who previously had Australian citizenship may have that citizenship withdrawn because those people’s relationship with another country, a newly independent country, has changed their connection.
GORDON J: Is that affected by paragraph 38?
MR DONAGHUE: Well, in my submission, paragraph 38 is ‑ ‑ ‑
GORDON J: In other words, what Parliament can give, Parliament can take away.
MR DONAGHUE: Under either power, I think, your Honour, yes.
GORDON J: Is that your answer?
MR DONAGHUE: Yes.
GORDON J: Thank you.
STEWARD J: Could I ask you a question in this territory? It is sometimes said that when the Queen became the Queen in right of Australia, or whenever that happened, Australians had their allegiance transformed into an allegiance to the Crown in right of the Commonwealth. Would you consider that to be yet another example of a national and international change that has bearing upon alienage?
MR DONAGHUE: Yes, your Honour, is the simple answer to that question.
STEWARD J: All right. So then the next question is what do you have to say about what Justice McHugh has said in the past about the possibility that British nationals who are living here permanently also had their allegiance changed, and in Mr Chetcuti’s case there is also a separate question about Malta which ‑ ‑ ‑
MR DONAGHUE: Which is all I am addressing at the moment, your Honour.
STEWARD J: Yes.
MR DONAGHUE: So, I was about to come to the independence changes.
STEWARD J: All right. Well, I do not want you to change your order then.
MR DONAGHUE: Perhaps I will develop the answer in relation to the British subject status shortly but foreshadow where I am going to go with that. One explanation, in our submission, for what happened in 1948 on the enactment of the 1948 Act was that the kind of changes your Honour is putting to me were creating uncertainties not just here but throughout the British Empire as the recognition had spread throughout the thirties and forties of the fact that it was not sensible any longer to speak of an indivisible Crown. Allegiance became a fuzzy criterion by which to identify membership of the constituent elements of the newly independent constituent elements of the British Empire, and that was acknowledged at the conferences that promoted the adoption throughout the Commonwealth of legislation in the form of the 1948 Act.
So, my longer answer to your Honour’s question is that the need to try to grapple with the slightly mystical notions of the divisibility of the Crown was avoided by giving nice clear legislative criteria on membership and that that was part of the point of the 1948 Act.
Before I move to that can I just draw your Honours’ attention to one part of the special case that shows the interaction between the facts of this case and Ame. If your Honours could turn in the core appeal book to page 39 you will find there, I hope, paragraph 95 of the special case which deals with various facts particular to the plaintiff and including his birth and other matters of that kind. At the bottom of page 39 in paragraph 95j it is agreed that:
on the occurrence of Maltese independence on 21 September 1964, automatically [the plaintiff]:
i.acquired Maltese citizenship by virtue of s 23(1) of the Constitution of Malta –
I will not take your Honours to it, but you will see that at page 105 of the core appeal book:
ii.lost any status he had as a citizen of the United Kingdom and the Colonies by virtue of s 2 of the Malta Independence Act 1964 (UK) –
Again, I will not take you to it but you will find that at page 85 of the core appeal book. As a consequence of those two changes, acquiring Maltese citizenship and losing his UK citizenship, also ceased to be a British subject under the Commonwealth Act, the 1948 Act.
You will see in paragraph k that he got that statutory status back again some six years later but there was a period of time where the appellant not only was not an Australian citizen but also was not a British subject under the statutory definition of that term because he ceased to be a citizen of one of the countries that had been listed in section 7(2) of the Act to which I will come.
So, in our submission, those changes are changes of the very kind to which the Court referred in Ame at 34 to 37. In our submission, notwithstanding the fact that there was nothing done by the appellant to which we would point that could constitute a renunciation of his Australian citizenship, the fact was that there were changes in international circumstances that had the effect that he owed allegiance to a newly independent sovereign country, and that that was a feature, combined with absence of Australian citizenship.
So, your Honours do not need to get into any of the more complicated concept questions about dual citizenship, because he has never been an Australian citizen, the appellant was just a person in Australia who owed allegiance to a foreign country. That brought him within the first limb of the aliens power, in our submission.
GAGELER J: Mr Solicitor, this probably does not matter at all – can you say what his statutory status was between 1987 and 1994?
MR DONAGHUE: 1987 and 1994?
GAGELER J: Yes. So, he regained the status of a British subject by virtue of the 1969 Act, then I think there was a 1983 Act that I think came into force in 1987 ‑ ‑ ‑
MR DONAGHUE: I think 1984 Act that came in 1987, I think, yes.
GAGELER J: ‑ ‑ ‑ that said, well, we do not have that status any more.
MR DONAGHUE: Yes.
GAGELER J: And then he gets an ‑ ‑ ‑
MR DONAGHUE: He gets an absorbed person visa.
GAGELER J: ‑ ‑ ‑ absorbed person visa in 1994. What the position between 1987 and 1994, do you know?
MR DONAGHUE: I do not know. We can look into that. I think that the answer will be that he will be – at that time, the Act generally required non‑citizens to hold entry permits or matters of that kind but I do not know how it dealt – but the absorbed person visa was a deeming to pick up people who were in – I do not have the section in front of me, but I think your Honour will find that section 34 deems people who were in Australia from a date in 1983 or 1984, so it fixes part of the criteria for the deemed grant of the absorbed person visa that you were absorbed into the community some 10 years prior. So, it may have been that that was an attempt to sort of retrospectively plug a gap, but I will see if we can do better than that, your Honour. My submission, as your Honour anticipates, is that it does not matter.
GAGELER J: It does not matter, it is just that you were talking about gaps, and that is another gap.
MR DONAGHUE: But in terms of – yes, indeed. Your Honour, that is all I would seek to put by way of our proposition 1. Our proposition 2 then turns to the British subject question and the significance, if any, of the fact that on arrival in July 1948 the appellant was a British subject. In our submission ‑ and your Honours will have seen this in writing and also in our outline ‑ there are two pathways by which we submit that it was open to Parliament to treat the appellant as an alien notwithstanding that fact. The first pathway is we think more straightforward than the second which is to fix the date of independence and it involves focusing on the effect of the 1948 Act.
So, for this pathway we are content – for the first part of the submissions I am about to advance, we are content to assume favourably to the appellant that Australia was not independent at the time that he arrived, which we, of course, contest but assume in his favour, that Australia was not independent in 1948 and that absent any legislative intervention he would have become a subject of the Queen of Australia upon the attainment of independence.
Even if one assumes those two things in favour of the appellant, we submit that there is no reason why the common law rule by which he may have become a citizen of the subject of the Queen of Australia cannot be modified by the Parliament. In our submission, what one sees very clearly in the 1948 Act is Parliament recognising that there are many British subjects in Australia and differentiating between them as to the way in which it will accord Australian citizenship and thus full membership of the Australian community.
To try to make that good, could I ask your Honours to turn back to the 1948 Act which is volume 2, tab 11. Our friends focus very heavily upon sections 5 and 7 of this Act. Section 5, it is true, contains a definition of “alien” which:
means a person who is not a British subject, an Irish citizen or a protected person –
British subject is then dealt with in section 7 and, as your Honours will have seen attaches what, in our submission, is clearly a derivative status as a British subject to someone who is first an Australian citizen. So:
A person who, under this Act –
under the 1948 Act:
is an Australian citizen –
also obtains “by virtue of that citizenship” status as a British subject. But it is not just Australian citizens who obtain that derivative statutory status as a British subject because if you read the whole of section 7 it 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 ‑
who are:
The countries to which this section applies –
They are listed in section 7(2):
the United Kingdom and Colonies, Canada, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon.
So, not just Australian citizens but citizens of any of those other countries by virtue of section 7(2) are given the statutory status of British subject, in each case derivative upon their citizenship of one of the listed countries, Australia or one of the other listed countries.
The moment that is appreciated, in our submission, it is quite plain that section 7 is not purporting to identify membership of the Australian body politic. It would be giving that membership to all of the people in all of the countries listed in section 7(2), it is just not a tenable reading of the section, and that is exactly what the Court said in Shaw in a paragraph to which – in paragraph 22 to which I will come shortly.
What section 7 is doing is something quite different, which is attaching to citizens of all of these countries, Commonwealth countries, an umbrella status in addition to their citizenship. It is saying partly in recognition of the historical realities that there is a common connection between citizens of all of these countries that Parliament did not wish to give away, which is their common status as British subjects, but it is not a status that is indicative of full membership of the Australian body politic. Indeed, Justice Nettle below at paragraph 53 of his Honour’s judgment described the contrary proposition as untenable.
Instead, the question of membership of the community was dealt with by the detailed provisions dealing with the grant of Australian citizenship dealing, as you would expect, with people born in Australia in section 10(1), descended from Australian citizens in section 11(1). But what about all the people who were here already in 1948? They are dealt with in section 25 which Justice Gageler mentioned this morning, which appears under the heading “Part IV — Transitional Provisions”. There very plainly, in our submission, Parliament does not treat all British subjects the same, British subjects who immediately prior to the date of commencement become Australian citizens if, and only if, they meet the criteria that follow, particularly in (a) through (d).
So British subjects who were born in Australia who would have been Australians if section 10 had applied to them, which is the “born in Australia” paragraph, or born in New Guinea or naturalised in Australia or “ordinarily resident in Australia . . . for a period of at least five years”, all of them Parliament is content to say, “Automatically we will treat you as Australian citizens in exercise of the first aspect of the aliens power”. But what it leaves out, evidently enough, is people like the appellant who have been here for less than five years, British subjects who had been in Australia for less than five years.
They do not get treated as Australian citizens under this Act or under any of the other provisions that follow. Instead, their status is recognised and given effect by the provisions that one sees back in sections 12 and 13, which is a particular pathway made available to obtain citizenship by what is called registration:
The Minister may, upon application . . . grant a certificate of registration as an Australian citizen to a person who is a citizen of a country to which section seven of the Act applies –
So that is all of those Commonwealth countries that your Honours saw in section 7(2) at a fast‑track path to be registered as citizens on application, and they have to be of full age, residing in Australia for a sufficient period of time, so was not available immediately; would not have been available immediately to the appellant on the commencement of the Act, but would have been available to him upon satisfaction of the residence requirement.
So, the scheme of the Act, in our submission, is Parliament said of British subjects, you may either automatically become an Australian citizen, if you meet the connection criteria in section 25, but if you do not have a connection of the kind we have thereby specified, then there is a procedure that you can use on application to become an Australian citizen. But, if you do not use that procedure, then you will be a British subject under section 7, but you will not be a citizen.
The appellant’s arguments effectively invite your Honours to ignore that scheme and to just say it did not matter whether you were a citizen or not, if you are a British subject you had all of the rights of full membership of the community. So, that even though you did not meet the criteria Parliament set in 25, and you never did the things that Parliament encouraged you to and gave you a procedure to do, nevertheless you are in exactly the same position as somebody who did.
That submission comes close to, if it is not an attack on the validity of section 25, it just says that this whole edifice was entirely ineffective to draw the distinctions that it drew on its face as to who was to obtain membership of the community based on their British subject status and who was not.
STEWARD J: Mr Solicitor, can I ask, 25(1)(a) would deal with everybody born in Australia prior to the 1948 Act coming into power?
MR DONAGHUE: Yes.
STEWARD J: So, it would deal, for example, with my father who was born here in 1935?
MR DONAGHUE: Yes, I think that that is right, your Honour. Born in Australia would have been an Australian citizen under section 10, but section 10 is a person born in Australia shall be an Australian citizen by birth. So I think, your Honour, the only qualification is the carve‑out in subsection 10(2), so it is effectively, as long as your father was not an envoy of a foreign country or an enemy alien, then I think the answer to your Honour’s question is yes.
STEWARD J: I hope not. So, when they talk about in 25(1) “a British subject immediately prior to the date of commencement”, is that the same type of person British subject regardless of where one lived in the dominions of the then‑empire, or is there an Australian version of a British subject, or what?
MR DONAGHUE: Your Honour, I think the British subject concept there is the same concept that one finds – so it is defined in section 5 as a person who is or is deemed to be a British subject under this Act, so it is the section 7 concept of a British subject, so it includes not just people born in Australia but in any of the other countries listed in section 7(2).
STEWARD J: So does that mean that prior to this Act, Mr Chetcuti was the same type of British subject as my father?
MR DONAGHUE: Your Honour, prior to this Act, the position was governed by the 1920 ‑ ‑ ‑
STEWARD J: Nationality Act, yes.
MR DONAGHUE: - - - Nationality Act, which was the Act enacted as part of the Commonwealth‑wide scheme following the 1914 Act, and it contained the definition of “British subject” that was someone born in the territory and under the allegiance of the King. So, yes, I think is the answer, there were not distinctions being drawn, but what this Act did, in section 25, was break up that wider category.
STEWARD J: I understand. Then my next question – I am sorry to interrupt, this will be my last, I promise – prior to this Act, I take it that you do not accept that the reference to “a subject of the Queen” in the Constitution was a reference to the Crown imperially rather than the Crown in right of Australia.
MR DONAGHUE: Your Honour, that is the next submission. I am sorry to keep putting your Honour off. I am focusing just on the Act for now and then the next part of the submission is ‑ ‑ ‑
STEWARD J: I apologise, I have raced ahead.
MR DONAGHUE: Your Honours, as I foreshadowed in an answer to an earlier question from Justice Steward, our submission is that the effect of this scheme that I have just taken your Honours through is that rather than needing to determine membership or otherwise of the Australian community by reference to the question of allegiance to the monarch and answering the imponderable questions about when the monarch divided, one can just look at the rules that Parliament specified in the exercise of the first aspect of the aliens power that defined the answer to those questions.
In other words, the previously determinative questions of allegiance that had been used to govern alienage status were, to use the words of a learned author who I am about to – an extract of whose work I am about to show your Honours, allegiance was swept away as the relevant criteria and replaced with the statutory criteria.
GORDON J: I know you are going to come to it, but is that not as a result of what had been discussed in 1947 at the conferences and, in effect, that was the agreement reached? In other words, there was to be this new arrangement where allegiance went away. There was a division up of who belonged to whom and there was, in effect, an extension of additional advantages to particular kinds of people as a result of the arrangements reached.
MR DONAGHUE: The particular kinds of people being British subjects – exactly, your Honour, I exactly agree with what your Honour puts to me.
GORDON J: Sorry, I have one more question. That is the description and analysis in Shaw - is that what you are coming to now?
MR DONAGHUE: Yes, it is. I am sorry I am taking a little while to get there but exactly, your Honour. Before I come to Shaw, can I ask your Honours to note one or a couple of paragraphs in the joint reasons of Justices Gummow and Hayne in Re Patterson (2001) 207 CLR 391 which your Honours will find in volume 4, tab 27. The relevant passages are at paragraphs 151 and 152. Your Honours will appreciate that their Honours were in dissent in Re Patterson, but their analysis was then the analysis that prevailed in Shaw. So, consistently with what Justice Gordon just put to me, there is reference at 151 to the notion of allegiance as:
a legislative determinant of the class of “British subjects” [having] disappeared before the birth of the prosecutor –
in that case, but in that case the prosecutor was born in 1960:
The relevant provision of the 1914 Imperial Act and the whole of the 1920 Nationality Act had been repealed respectively by the 1948 UK Act and the Citizenship Act -
which is the Australian Act of 1948:
The new situation was described as follows by Professor Parry in his authoritative work . . .
“What the [1948 UK Act], and the parallel enactments elsewhere, did was to create a new, statutory concept of citizenship of each country concerned and to render the traditional and familiar status of a British subject . . . a derivative status, capable of enjoyment, transitional cases apart, only in virtue of possession of the citizenship of one or more of the local communities of the Commonwealth.
That is what you see in section 7.
The concept of allegiance, which had been the foundation of the status of a subject, was not imported into the rules governing local citizenship but was altogether swept away, together with all other rules of the common law respecting nationality.”
That was, as their Honours then explained, in 152:
This “status of British subject” –
that is the section 7 status:
was the creation of legislation which marked a significant departure from what might be termed the previous Imperial constitutional position of the Crown. The new legislative status was significant to individuals not as a determinant of nationality or citizenship but as the criterion by which certain benefits or rights –
which is I think entirely consistent with what Justice Gordon just put to me. That, of course, is completely inconsistent with the emphasis that the appellant has invited your Honours, through the course of the morning, to attach to the notion of allegiance. It does not recognise the nature of the change that was being made.
That change – again, as Justice Gordon anticipated – arose from the conferences, both in 1937 – which I think your Honour Justice Gageler discussed in Love – and in 1947. For some reason, both of those conferences are included as attachments to the special case. I will not detain your Honours on these for very long. But, with respect to the 1937 conference, in the core appeal book, the relevant references are particularly at 288 to 289. This shows as early as 1937 – and I am looking here on 288 under the heading “Nationality” – that there were questions raised regarding:
the relationship between the common status –
as subjects and:
the particular status of membership of any one of the individual communities –
As you see at about point 5 on the page, the common status was based on the UK 1914 Act. But it did not deal with, as you see in the third paragraph under the heading “Nationality”:
British subjects not only have this common status, but also, generally speaking, have a particular connection with one or other member of the British Commonwealth –
It is over the page, on 289, that there is a discussion – particularly from about point 3 on the page – the third paragraph down:
But it was recognized that to a greater or less extent members of the Commonwealth, whether or not they have given legislative definition to such a concept, do distinguish for some practical purposes between British subjects in general and those British subjects whom they regard as being members of their respective communities.
Then, at about point 5 on the page:
the deciding factor will not be whether the person is a British subject, but whether or not, being a British subject, he is regarded by virtue of birth or residence, or otherwise, as a member of the community in the territory concerned –
So, the concept was distinguishing between membership of the community, on the one hand, and British subject status with respect to the empire as a whole. There is then – I will not take your Honours to it – but going on, there is a discussion of objectives for the legislative reforms that are contemplated and at the very bottom of that page, you can see the last few lines on the page:
it is for each member to prescribe the conditions under which any British subject coming from another part of the Commonwealth will be considered to have so identified himself with the new community to which he has resorted as to become a member thereof.
In other words, that is envisaging section 25 – exactly what happened.
GORDON J: In the middle of that page is this idea that the members of the community – in effect, it is for the relevant independent countries – of which the United Kingdom and its dominions, is it not, are one – as distinct from Australia and others later to determine who belongs as a member of the community.
MR DONAGHUE: It is.
GORDON J: That is, which of the British subjects, using that as the nomenclature, is to be treated as belonging.
MR DONAGHUE: Yes - “which belong”, rather than “all belonging”, precisely, your Honour, yes. So this is 1937, pre the Second World War, and the Commonwealth is already talking about doing this. After the Second World War it has acquired new urgency. Canada in particular has been driving the process of the development of its own individual citizenship. It passed legislation in the mid‑40s and another conference is held, this time in 1947, which your Honours will see at page 370 in the book. The summary of what was decided there appears on 370 at paragraphs 8 and 9 in particular, and I think it is probably sufficient to note the reference in 8:
the adoption of a scheme of legislation which combines citizenship with the maintenance of the common status of British subjects throughout the Commonwealth would be desirable. Such a system gives clear recognition to the separate identity of particular countries of the Commonwealth –
and provides clarity, et cetera. Paragraph 9:
The essential features of such a system are that each of the countries shall by its legislation determine who are its citizens, shall declare those citizens to be British subjects and shall recognise as British subjects the citizens of the other countries.
That is what we did. That is what was done in 1948, so consistently with the way that other parts of the Commonwealth dealt with it and inconsistently with the notion that, despite the discussions in 37 and 47 and this legislation throughout the Commonwealth, that actually nothing changed and that still it was British subject status that was determinative of everything. That proposition just cannot be reconciled with what actually happened.
That brings me at last to Shaw where, in our submission, the Court analysed the Act consistently with what I have put to your Honours. Shaw (2003) 218 CLR 28 is volume 5, tab 29. As I have already mentioned, the plurality judgment was joined in by Justice Heydon, so I am about to take your Honours to reasoning that has the support of four members of the Court.
The argument that their Honours were addressing is summarised at paragraphs 8 through to 10 and it was very similar to the argument that your Honours have heard today. It relies upon the attribution of non‑alien status under the 1948 Act in particular and fixes on the proposition that as a British subject the applicant could not be treated as an alien. In other words, it was suggested that he was within the Pochi limit of someone who could not possibly answer the description.
At paragraph 10 the plurality indicate that the argument should be rejected because the premise was flawed. So 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 is flawed, and your Honours will see there are two reasons given. I will come back to the more fundamental reason in a moment. So:
First, “British subject” is not a constitutional expression -
Second, there are more fundamental reasons, which is really the independence reasoning. But before I come to that can I just focus on the analysis of the Act. If your Honours skip over some paragraphs that I will come back to when I am dealing with independence and go to paragraph 15. So 15, dealing with the 1948 UK Act, recognises citizenship of “[UK] and Colonies” and derivatively the status of a British subject:
This status was the creation of and derivative from United Kingdom statute law –
and the same could be said of section 7 of our Act. Then, their Honours deal with section 7 in paragraph 16:
In Australia, by virtue of s 7 of the Citizenship Act, the applicant . . . was classified as a “British subject”.
The footnote quotes section 7:
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.
But it is a legislative rather than a constitutional status as is explained more fully in paragraph 21 a few pages on where, reading from the second half of paragraph 21, it is said:
Further, the statute created its own class of aliens –
and your Honours will remember “alien” is defined as anyone who is not a British subject:
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” ‑
The classification by s 7 of the citizens of all those countries your Honours have seen as British subjects:
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 was mentioned in paragraph 16:
It can hardly be said that, as the relevant political facts and circumstances stood in 1948, those citizens –
that is, citizens of all those countries:
could not possibly answer the description –
So, in our submission, Shaw holds that the very statutory distinction that our friends rely upon does not have the consequence that they seek to attach to it. Rather than “British subject” having some constitutional significance for the reach of the aliens power, it was no more and no less than a statutory status upon which Parliament could then choose to hang other rights including, if it chose, grant of passports or the right to vote.
It did so choose for a period of years following the enactment of the Act but that does not mean - indeed, in 22, it is recognised that the attachment of those rights is an exercise of what we would call the second aspect of the aliens power, in other words, the use of the aliens power to attach rights or obligations to people who have the specified status. So, our friend’s argument cannot, in our submission, be accepted without departing from that aspect of the reasoning in Shaw.
The other pathway by which we submit your Honours could deal with the fact that the appellant was a British subject when he arrived in 1948 is by concluding that, even then – even in 1948, he was already an alien. That is the pathway that takes your Honours to the question of the point at which Australia emerged as an independent nation.
There is, in our submission, a lot of material to support the proposition that that happened well prior to 1948. Shaw holds that it happened by 1948. But there is a lot of material that would suggest it happened earlier. A convenient collection of some of that material is located in an article written by Professor Twomey which we have given to your Honours.
Could I ask your Honours to turn up that article, briefly? It is in volume 7, at tab 45. It is an extract in a chapter of the book, “The High Court at the Crossroads”. The extract is Chapter 3, “Sue v Hill – The Evolution of Australian Independence”. I am not going to ask your Honours to dwell on this at any particular length, but can I note two features of it?
The first is on page 83 – having discussed Australia’s role in signing the Treaty of Versailles which I will return to – you will see at the end of 83, Professor Twomey is discussing the Balfour Declaration:
In 1926, the Imperial Conference issued the “Balfour Declaration”. It declared that Great Britain and the Dominions “are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations”. This was the “declaration of independence” of the Dominions, although issued by agreement, rather than revolution.
Professor Winterton, in another article I will not take your Honours to, but it is behind tab 48, at page 34, also uses the declaration of independence‑type language to describe Balfour.
If your Honours then stay with Professor Twomey and go to page 108 – which is in the conclusion of her article – you will see that in the second paragraph Professor Twomey in this article concludes that Australia was independent by 1941 – the commencement of the Statute of Westminster which is also the date Professor Winterton selects. In the second paragraph, under “Conclusion”, she writes:
There have been many statements by Justices of the High Court on this subject, most of whom identified the period between 1918 and 1931 as the period during which sovereignty was attained.
There is then a very long footnote. I am taking this to your Honours really for convenience to give you a collection of those references. You will note that the last of the references is in the joint judgment of five members of the Court in the Industrial Relations Act Case.
Immediately, on the next page, there is a commentary on this article written by Mr Horan. If your Honours go on just a couple of pages to page 110, Mr Horan deals, at the second half of that page, with the collection of authorities that I have just noted. It says:
Twomey has usefully cited towards the end of her chapter some references –
by various High Court Justices:
Most judges have focused on dates between 1919 . . . and 1931 . . . or perhaps 1942 . . . The most recent statement is contained in the majority judgment in Victoria v Commonwealth (Industrial Relations case) –
and he then quotes that passage:
Whilst for some time practice may have lagged well behind theory, these steps have been taken as indicative that by 1919 the Commonwealth had assumed international personality.
Then, Mr Horan notes that, in that case:
The majority referred to in a footnote to the “more cautious view taken by the Constitutional Commission in 1988 . . . that ‘at some time’ between the Balfour Declaration [in 1926] and 1945, Australia achieved full independence as a sovereign state”.
So, in the Industrial Relations Act Case, five Justices of the Court apparently favoured 1919. But, even on the more cautious view of the Constitutional Commission, the process was done by 1945 – the end of the Second World War.
That discussion, of course, all occurred – this article was written prior to Shaw, it has followed Sue v Hill. The discussion in Shaw equally is – while the Court did not find it necessary to decide the position prior to Australia Day 1949, its analysis strongly suggests that Australia became independent prior to that date. This was the more fundamental reason to which the Court was referring in paragraph 10 of Shaw. Their Honours say that the proposition:
if “British subject” was being used as a synonym for “subject of the Queen” . . . 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 -
which is not suggestive of the change having occurred in 1949.
What their Honours then do in the paragraphs that follow is analyse the evolution – and we particularly emphasise paragraph 12, after quoting Quick and Garran, there is a reference to Wade, pointing out that questions of sovereignty relate to the intersection of the legal and political questions. There is a quote from the House of Lords in 1935 where Viscount Sankey said of the possible repeal of the Statute of Westminster that it:
had “no relation to realities”. The “realities” to which Lord Sankey referred were the political realities of the separation of the dominions from the United Kingdom which had occurred and which found reflection in the Statute of Westminster.
So, that is suggesting they had occurred prior to 1935. Paragraph 13 refers to the observations in Kirmani about the enactment of the Statute of Westminster, the UK version in 1931, and there, Chief Justice Gibbs referred to the Statute of Westminster as reflecting the:
autonomy and equality of status with each other and with the United Kingdom which had been recognised by the Balfour Declaration of 1926 . . .
The constitutional term “subject of the Queen” must be understood in the light of the development and evolution of the relationship . . . recognition of the reality of the independence -
at the end of 14, and I have already mentioned 15 and 16 to you. In paragraph 17, their Honours deal with the negotiations that led to the 1948 Act, which I have already taken your Honours to, and shown you the extracts from the conferences. In paragraph 19, there is a quote, again from the House of Lords, this time in Ex parte Ross-Clunis referring to:
fully independent countries within the Commonwealth which are named in section 1(3) -
which of course included Australia. At the end of paragraph 20, their Honours say:
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 United Kingdom.
So, the change had happened, their Honours say at least by 1948. That is repeated in 27 and 28, which I think your Honour Justice Gordon mentioned to our friends this morning. Paragraph 27 said:
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 United Kingdom and colonies under the 1948 UK Act . . .
by 1948, the Imperial Crown, indivisible in nature . . . was no longer apparent -
So, it is true that while paragraph 32 states the ratio of Shaw in terms that say the case decides that all people who entered after Australia Day 1949 are aliens and the Court says the scope of any earlier operation of the power does not fall for consideration, the whole analysis of the Court that leads to that endpoint is quite inconsistent with the idea that July 1948 is in any relevant respect different. Australia was already independent well before - on the conservative view by 1949, on views frequently favoured by this Court post either 1919, 1926 or 1931.
We have given your Honours in the special case facts supportive of all of those possible dates and I do not seek to detain your Honours by going through all of those facts in any great detail. If I could give your Honours some references. Your Honours will see the text of the Balfour Declaration at 267 in the core appeal book. That is the declaration which Professor Twomey calls the declaration of independence. In our written submissions in paragraph 36, footnote 63, we quote from Justice Dixon’s observations in Jesting Pilate about the significance of the Balfour Declaration which he describes as even more significant than the Statute of Westminster. Lord Denning did the same thing in a case that we also cite there.
Your Honour Justice Keane this morning said why is not the relevant date the date when the Crown acted solely on the advice of Australia’s ministers? That the Crown would so act was agreed at the 1930 Imperial Conference and you see that at 274. We agree there is significant force in treating that as the relevant date and that was again prior to the Statute of Westminster.
On the Montevideo‑type convention‑type analysis as to relevant factors, we submit that one can see Australia acting on its own behalf in international affairs from the Treaty of Versailles and onwards. It is independent in executive affairs from Balfour or at the latest the 1930 conference. It is independent. It has the capacity to act independently in its legislative affairs from the date of the enactment of the Statute of Westminster in 1931 and at least by that date that seems to be the explanation for why Professors Twomey and Winterton and also Professor Lindell all agree that by 1931 Australia had become independent because it had executive, legislative and independence and international responsibility had all occurred by that date.
But if none of those dates are right, in our submission the events that occurred in 1941 put the question really beyond doubt because the events that accompanied the declaration of war with Japan in 1941 involved, in our submission, a quite deliberate assertion of Australia’s independence to make that decision quite separately and independently of the United Kingdom. Not only did it happen first, Australia declared war on Japan prior to the United Kingdom taking that step, but the surrounding events show that the then Attorney‑General Dr Evatt deliberately sought to make clear that Australia was taking that decision on its own behalf.
There are relevant facts in the special case at 42 to 44 but can I ask your Honours to go to one of the annexures which you will see at 305 and 306 of the special case – sorry, of the core appeal book rather, which is one of the attachments to the special case marked – it is cablegram marked “Most Secret”. It was sent on 3 December 1941 and it was communicated to the Australian High Commissioner in London, dealing here first with declarations of war in relation to Finland, Romania and Hungary, and I think it was then extended to Japan following the Pearl Harbour attacks. So, your Honours will see here in paragraph 1 it is recorded that:
On the advice of His Majesty’s Ministers in Australia, an instrument will be issued by His Majesty to the Governor‑General of the Commonwealth authorizing him to issue the proclamation set out in 2.
Which we will come to – will be countersigned by the Prime Minister of Australia:
will be issued by the Governor‑General . . . on the advice of the Executive Council here –
About halfway down the page just under paragraph 3:
This procedure will be in accord with the now recognized status of the Commonwealth of Australia in its international relationships as evidenced by the Balfour Declaration and other authoritative declarations. The view of the Commonwealth Attorney‑General is that, although 2 and 3 above may not be strictly necessary, nevertheless, it is desirable to express with clarity the unbroken chain of prerogative authority from His Majesty to his representative here, making it also clear at the same time that in relation to the Commonwealth and its Territories, His Majesty is acting exclusively on the advice of his Ministers in the Commonwealth [of] Australia.
Then you will see over the page the proposed declaration which at about point 6 on the page records:
acting by and with the advice of our Federal Executive Council of our Commonwealth of Australia, and in the exercise of all powers . . . thereunto enabling, hereby assign to the Governor‑General of the Commonwealth of Australia the power to declare and proclaim that, as from a date . . . a state of war . . . with the Republic of Finland, the Kingdom of Hungary and the Kingdom of Rumania.
And, as I say, that was then extended to Japan. So Australia was declaring war on its own behalf by 1941 and, of course, it then adopted in 1942 the Statute of Westminster with retrospective effect to the start of the war in 1939 to give effect to its full legislative independence.
That topic requires me to take your Honours briefly to the Adoption Act in order to deal with the points that South Australia has made in its intervening submissions. Your Honours will find the Statute of Westminster which is annexed to the Adoption Act in volume 2, tab 12.
Your Honours might recall that his Honour Justice Nettle said that this Act was enough; Australia was sufficiently independent so that British subjects could be aliens by the enactment of this Act, and it is our notice of contention that invites your Honours to reach back to an earlier date. In response to Justice Nettle having attached that significance to the Adoption Act, South Australia have been prompted to make submissions to the effect that there would be a question as to the validity of the Adoption Act if it brought about the divisibility of the Crown and thereby changed the status of the Crown with respect to South Australia as well as with respect to the Commonwealth. But happily ‑ and specifically it said that if the Adoption Act did those things it would be invalid by reason of 106 or the Melbourne Corporation principle.
But South Australia has also accepted that there are various reasons that would mean that their concerns about the Adoption Act do not arise, and we submit that there are three ways your Honours could deal with this that would mean you would not need to get to the concerns or questions about the Adoption Act that South Australia have raised.
The first of the three reasons is that South Australia agree that if the question is not a question ‑ an abstract question about when the Crown divided, but instead a question about when Australia achieved sufficient independence from the UK so that it was open to Parliament to treat British subjects as aliens, if that is the question, and we submit that is the specific question your Honours have to answer, then South Australia agree, in paragraph 16, that the question ‑ that validity questions do not need to be answered.
Second, and this is, we submit, probably the most straightforward path, South Australia accept that if the source of power to enact the Statute of Westminster Adoption Act was the Statute of Westminster itself, rather than a section 51 head of power, then that would also mean that the questions that they seek to raise do not arise and, in our submission, that is the position. Specifically, in our submission, the power to enact the Adoption Act comes from section 10 of the Statute of Westminster, which is annexed to the Adoption Act, and your Honours will see in 10(1) it is provided that various sections of the Statute of Westminster do not:
extend to a Dominion to which this section applies . . . unless that section is adopted by the Parliament of the Dominion, and any Act of that Parliament adopting any section of this Act may provide that the adoption shall have effect –
in those. So those words, we submit, should be read as empowering words, that the Act may provide as to the effect of the adoption thereby contemplated, that being the way that three members of the Court understood – the only three who looked at this issue, understood the provision to work in Kirmani v Captain Cook Cruises, to which I will come in a moment.
Before I do that, your Honours might recall that section 10, which was actually added to the Statute of Westminster in large part because of Australia’s desire not to have the Statute of Westminster apply to it immediately from enactment, so that section 10 requiring adoption only applies to the countries listed in 10(3):
the Commonwealth of Australia, the Dominion of New Zealand and Newfoundland.
For other colonies, including, in particular, Canada, the Act just operated immediately on passage by the UK Parliament, and it cut Canada free of the Colonial Laws Validity Act and empowered it to enact extraterritorial legislation, did all of the things that were ultimately given effect in relation to Australia. Australia had some hesitations about whether it was desirable to reduce such matters to legislation, but that was accommodated through section 10, and in providing for the UK Act not to apply of its own force unless there was an adopting Act, in our submission, what section 10 was doing was creating, in effect, a condition precedent to the operation of the Statute of Westminster.
All the Commonwealth Parliament did when it passed the Adoption Act was satisfy that condition precedent that then allowed the Statute of Westminster to operate of its own force, just as it had done in relation to Canada, to free the Commonwealth Parliament from the constraints that had hitherto existed. So if that analysis is right, it is supportive, we submit, of the proposition that the power to enact the Adoption Act comes from section 10 itself. As I say, Kirmani v Captain Cook Cruises (1985) 159 CLR 351 supports that analysis.
Could your Honours turn to that case. It is volume 3, tab 15 and this particular question of where the source of power came from to enact the Statute of Westminster was only addressed by Chief Justice Gibbs, Justice Brennan and Justice Deane. It was addressed by Chief Justice Gibbs at paragraph – on page 367 in, we respectfully submit, very clear terms, about point 4 on the page:
It was provided by s 10(1) of the Statute of Westminster that none of ss. 2, 3, 4, 5 and 6 of the Statute should extend to the Dominions to which that section applied (which included Australia) as part of the law of that Dominion unless that section were adopted by the Parliament . . . Section 10 itself conferred on the Dominions to which it applied all the power necessary to adopt ss. 2, 3, 4, 5 and 6 –
To the same effect, Justice Brennan at page 398 of the report, at about point 7 on the page there is a paragraph that begins:
A counter attack was made on the validity of the Adoption Act, and that should be disposed of first.
His Honour was not quite sure he understood it, but the starting point seemed to be that Parliament had no power to enact the statute to adopt – to enact the Adoption Act and then his Honour said, four lines further down:
Such a power is implicitly conferred by s. 10. That section provides that ss. 2, 3, 4, 5 and 6 of the Statute should not extend to the Commonwealth unless those sections are adopted by the Commonwealth Parliament. The condition of adoption expressed in s. 10 necessarily implies the power to satisfy the condition.
Justice Deane to the same effect on page 443, point 3, at the end of his judgment said:
The simple answer to the proposition is that the power to adopt those sections of the Statute was plainly conferred upon the Commonwealth Parliament by the Statute and that, when adopted, the Statute of Westminster itself, not the Statute of Westminster Adoption Act, confers the additional legislative power upon the Commonwealth Parliament.
So, insofar as there is authority on the point it supports the idea that the power came from section 10 and if the power came from section 10, South Australia accept that it would not be subject to Melbourne Corporation or 106 and, therefore, as I understand it, their concern about the validity of the Adoption Act would not arise.
Finally, on this point, your Honours, if it be right as Justice Deane put it in that last passage, that the statute itself operated in law rather than the Adoption Act operating then it would only be if Melbourne Corporation by 106 constrained the power of the UK Parliament that there could be an argument of the kind that South Australia assert and, in our submission, because it was the Statute of Westminster that relevantly affected the changes in the powers of the Commonwealth Parliament, for that third reason also, South Australia’s arguments do not arise.
I think, your Honours, that unless the Court has any questions that is all I need to say in support of our propositions 1 and 2. So, with the Court’s permission I would ask ‑ ‑ ‑
GAGELER J: I have a question about your final paragraph under proposition 2. It is about Mr Chetcuti’s status for the purpose of Australian law immediately before the commencement of the 1948 Act. In the course of your submissions, you mentioned the common law and your opponent mentioned the 1914 Imperial Act. Did either of those sources of law have any bearing on Mr Chetcuti’s status for the purpose of the Constitution at the time he arrived in Australia?
MR DONAGHUE: Sorry, your Honour, I rashly skipped over that and so I will develop the answer to that question. The answer is no, but the relevant law was the 1920 Nationality Act. I need to say a little bit more about why that is so. The 1914 UK Act was a response – and the extrinsic materials at the time bear this out but I will not take your Honours to them – a response to the fact that the law, at a time when the various dominions were dominions and did not have power to enact extraterritorial laws, was such that a person naturalised as a British subject in Australia became a British subject in Australia but not anywhere else in the Commonwealth. So, one had a confusing patchwork‑type position where there was no capacity to keep status as a British subject uniform.
The 1914 Act was a product of a conference that recognised a need to address this situation – both by UK legislation concerning the status of imperial subjecthood – British subjects throughout the whole empire – and also both seeking to have the dominions enact legislation in mirroring form – which is what the 1920 Act was. It very closely mirrored the UK Act and, indeed, the 1914 Act also purported to empower the dominion parliaments to enact nationality legislation in that form so that it could have uniform effect throughout the empire.
The main thing, in our submission, that the 1914 Act was concerned with was, therefore, not membership of any local body politic at all. It was primarily concerned with membership of the larger body politic that constituted the British Empire. We have said something to that effect in writing.
It was expressly acknowledged at the time – and I am here referring to the 1911 Imperial Conference – that that empire‑wide status did not stop component dominions from making their own local rules that continued to differentiate between British subjects. But the fact seems to be that
Australia did not. So, Australia enacted legislation giving effect to the uniform imperial scheme but never enacted a different local law to govern membership of the Australian body politic. It just enacted – in particular in section 6 – a provision that said the following person shall be deemed to be natural‑born British subjects, namely (a), any person born within His Majesty’s dominions and allegiance.
So, it seems to be the case that the applicable statute law at the time the appellant arrived in Australia was that he would have been a person born within His Majesty’s dominion for allegiance because that was the empire‑wide concept and the territory of Malta was, at that time, within His Majesty’s dominion for allegiance. So, his statutory status in 1948 appears to have been as a British subject under that Act.
But, in our submission, for the various reasons we have already developed, unless the statutory status he was assigned in the exercise of the aliens power in July 1948 was a once‑and‑for‑all indelible status that Parliament could never change, it changed in July 1949.
GAGELER J: I think what I am hearing is that the Nationality Act, in your submission, was not concerned with the definition of the Australian body politic.
MR DONAGHUE: Yes, it was not concerned with the definition of the Australian body politic, that is definitely correct, but that the Parliament did not exercise its power to create any separate definition of the Australian body politic until it did that in 1948. So it could have, in our submission, done so, at least at any time – on proposition 2 at any time from independence, on proposition 3 that Mr Lenehan is about to develop, at any time from Federation, but I cannot point to any legislation where Parliament did define membership of the body politic.
It seems that Parliament was content to allow the imperial body politic’s membership to operate in practical terms as the definition for Australia, subject to the fact that it could then only make laws with respect to people who were here, because the Parliament did not have extraterritorial competence until the Statute of Westminster.
I should, if your Honour wants to follow that – no, I do not need to do that, I think that is a sufficient answer. Thank you, your Honour. So, if your Honours please, Mr Lenehan will complete our submissions.
KIEFEL CJ: Yes, Mr Lenehan.
MR LENEHAN: If it please the Court. Your Honours have heard that I am dealing with ground 2 of our notice of contention. We say that provides a further alternative basis for concluding that it was open to the Parliament to treat the appellant as an alien, even from 1901, upon the creation of an Australian body politic. Now, you will have seen that Justice Nettle thought that this ‑ ‑ ‑
KIEFEL CJ: Could you speak up, Mr Lenehan?
MR LENEHAN: I am sorry, your Honour, yes, I will.
KIEFEL CJ: Thank you.
MR LENEHAN: Justice Nettle understood this submission to be a further variation on our independence submission. His Honour did not have the benefit of very much in the way of oral submissions on the point, and our friends have similarly understood it as being directed to that same idea, but to be very clear, we are saying under this head, independence is simply beside the point.
Can I explain that by reference to what Justice Heydon said in Shaw 218 CLR 28. At paragraph 190 – again Shaw is behind tab 29 in volume 5. Your Honours will recall that in Shaw both parties proceeded on the basis that it was not open to Parliament as at 1901 to treat British subjects as aliens. His Honour in that paragraph questions that assumption and says:
It is not in fact self-evident that from 1 January 1901 all British subjects were not aliens, and inquiry into a subsequent date -
which is the exercise that your Honours have just heard about:
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.
His Honour, you also see there, expressly left that question open. He said it should be left open until the Court has the benefit of debate. That is what we are seeking to do. It is that issue that I am now addressing. We say it involves these steps. First, as at 1901, the Constitution created a new body politic which necessarily and obviously had members and while that body politic was not independent of the British Empire, it nevertheless was distinct, and this is the point that your Honour Justice Keane made during Ms Schoff’s address, had a membership that was distinct from that of the British Empire.
That was also the subject of the exchange between your Honour Justice Edelman and Ms Schoff. We answer Justice Edelman’s question in that way, there was a distinct membership, it was different. It is telling in that regard, we say – your Honours saw before, during Dr Donaghue’s submissions – that part of the Imperial Conference of 1937 - there is in fact an even earlier similar body of material in the core appeal book. It is the 1929 report of the conference on the operation of dominion legislation ‑ ‑ ‑
GORDON J: Mr Lenehan, I apologise, but I cannot hear what you are saying ‑ ‑ ‑
MR LENEHAN: I am sorry, your Honour.
GORDON J: I really would quite like to hear it so could I ask you really to speak up for us?
MR LENEHAN: Yes, I will, your Honour.
GORDON J: Thank you.
MR LENEHAN: Referred to in the report that Dr Donaghue took your Honours to is a 1929 report and we have sought to set that out in paragraph 43 of our written submissions. What we get from it is that the terms “national” and “nationality” were being used in place of the notion of British subjects to describe membership of the emerging dominions. Once one recognises then that there is that separate distinct membership and that the Constitution has bought into being a new Australian body politic with that distinct membership, we say it also follows that the Commonwealth Parliament must have had the power to define the criteria for the membership of that body politic. In essence, we say from that time it was open to Parliament to treat British subjects as aliens although of course it did not do so.
GORDON J: Just so I understand, this is contrary, not to Quick and Garran’s authority but it is contrary to that, what Quick and Garran say about this aspect?
MR LENEHAN: Yes.
GORDON J: It is contrary to six members of this Court in Nolan?
MR LENEHAN: I am about to explain Nolan, your Honour.
GORDON J: Right, and also what Justices Gummow and Hayne I think say in Re Patterson?
MR LENEHAN: Again, those are observations that I am about to explain.
GORDON J: Thank you.
MR LENEHAN: Can I explain them in this way. We take from Justice McHugh’s decision in a case called Hwang v the Commonwealth, which your Honours have behind tab 33.
Now, depending on whether you are using the electronic or the hard copy of the joint bundle, you may have the ALR or the ALJR, but in either event I am directing you to paragraph [10]. His Honour says this:
it is a mistake to think that the power of the Parliament of the Commonwealth to make laws with respect to citizenship did not exist at federation. For many years, the existence of United Kingdom legislation may have made it impossible, as a practical matter . . . But, independently of Australia’s emergence as a sovereign nation, the Parliament has and always has had the power to make laws with respect to citizenship.
Now, your Honour Justice Gageler made a similar observation two paragraphs before the passage that Ms Schoff took your Honours to at paragraph [94] and then made the same qualification that of course the legislation of the British Parliament by paramount force prevented that from happening. Our point is simply this. When those legislative shackles were loosed, when imperial legislation no longer applied in that way, the power was freed.
Now, to respond to your Honour Justice Gordon’s question, that is then how we say your Honours are to read more precisely those various passages from cases like Nolan. So we say what is being done there is to observe what is obviously true – British subjects were not treated as aliens at that time because of the limits imposed by imperial legislation and, for that matter, an understanding of the nature of empire and indivisible Crown.
Indeed, I can accept that it would have been inconceivable at that time, although perhaps not to the framers that Justice Edelman identified before during the Convention Debates to treat those persons as aliens. But if all of what I have said is right then, irrespective of whether Australia had achieved independence prior to 1948, prior to the appellant’s arrival in 1948, his status as a British subject did not preclude the Parliament from legislating to specify criteria that he was required to satisfy in order to become a member of the Australian body politic.
GAGELER J: I am not sure this is any different from proposition 2, part 1, is it?
MR LENEHAN: The difference is, your Honour, that we do not then need to demonstrate independence. Proposition 2 assumes independence
happens on the commencement of the Act. This way I am just relying on power, so it does look similar.
EDELMAN J: Would this submission align section 51(xix) and 51(xxvii) in respect of persons overseas? In other words, immigration and aliens would then operate in exactly the same way for persons outside Australia.
MR LENEHAN: Yes, it may do, your Honour. Then, to complete that submission, we say the appellant never satisfied those criteria, he remains an alien. That is all I wanted to say about proposition 3. Can I then say something very shortly about relief. In the event we are successful, of course we say the appeal should be dismissed with costs. If the appeal were to be allowed, then your Honours will have seen that our friends seek a specific declaration, a declaration that the plaintiff was not an alien for the purposes of 51(xix).
We say the declaration should be framed differently, it should be a declaration that it is not within the power of Parliament under 51(xix) to treat the appellant as an alien, consistent with the approach in Love. We did, your Honours will have seen, say in writing that if our friends succeed your Honours might simply answer the question in a special case. We have thought further about that; your Honours, this being an appeal, do not have the special case before you, and it is therefore not appropriate to answer that question. Those are the submissions that I am making, your Honour, I think Dr Donaghue has a further response to Justice Gageler.
KIEFEL CJ: Mr Solicitor.
MR DONAGHUE: Very briefly, your Honours. Justice Gageler, your Honour asked a question about status in the period. I cannot remember the exact dates, but in the ‑ ‑ ‑
GAGELER J: 1987 to 1994.
MR DONAGHUE: Yes. I can give your Honour a short answer, and if your Honour wants more detail, I would ask for leave to file something short in writing, but the short – the position is a little complicated. The complication arises from the fact that, as your Honours might recall from other contexts, the constitutional foundation for the Migration Act shifted from the immigration power to the aliens power in 1984. Prior to that date, a person who was an immigrant who had been absorbed into the Australian community was just here and did not require an entry permit in order to be here lawfully.
From the commencement of the shift, and in particular there was an Act called the Migration Amendment Act (1983), section 8(2) of that Act
seems to have had the effect that even people who had been absorbed into the community became prohibited non‑citizens if they did not hold an entry permit, and then there was a further Act, in 1989, that also attached illegal entrant status to them.
Those effects appear to have been unintended, and they were subsequently recognised at the time of the commencement of the Migration Reform Act, which commenced at 1994, so when the absorbed person visa was created, that was a visa category designed to apply to people who had come as immigrants and had been absorbed into the Australian community but who now needed to have visa under the binary status in the Act, and it retrospectively reached back to 1983 to ensure that people who had been absorbed up to that time would have visas. It fixed on the past date, but it did not retrospectively change the status. So it may be that there was a period there, through a result of unintended operation of Commonwealth legislation where, in fact, the applicant became a prohibited non‑citizen by reason of inadvertence rather than deliberate policy. If your Honour would like more, we can do that, but I would need to do it in writing. If the Court pleases.
KIEFEL CJ: Solicitor‑General for South Australia.
MR WAIT: Your Honour, I can be very brief. The crux of the submission that South Australia has put in writing is that if the Court affirms that the conclusion reached by Justice Nettle, that the Crown divided upon the enactment of the Statute of Westminster Adoption Act, then it should do so on the basis that the division was effected by or sourced in the Statute of Westminster, a paramount source, so as to avoid setting a precedent that suggests that the Commonwealth might unilaterally enact a law that alters a core component of State constitutions without offending section 106 or the Melbourne Corporation principle.
I accept, for the reasons put by the Solicitor‑General for the Commonwealth, that it will probably be unnecessary for the Court to address the concerns that have been raised in South Australia’s submission because if the Adoption Act did have the effect of dividing the Crown, then it may be understood as being sourced in a paramount authority that would not be constrained by section 106 or by the Melbourne Corporation principle.
KEANE J: What if it were just confirming, legislatively, a division that had occurred earlier by reason of the relaxation of the conventions governing the tendering of advice to the Crown by the ministers of the various polities?
MR WAIT: Your Honour, I accept that a number of the dates that have been canvassed in argument today are dates of either political events or, perhaps, dates by which a political process of evolution has reached a point of sufficient independence. If one looks to a political date for the date upon which the division of the Crown occurred, then I would accept that Melbourne Corporation and section 106 would have no direct bearing upon the arrival at that date.
There are some authorities, your Honour, that appear to regard the question of division as turning on political events and political changes. For instance, Justice Windeyer in Bonser v La Macchia talked about the law following the facts. In that case, then our concerns and objections do not arise. There are other passages, however, where Justices of this Court have considered that the emergence of independence has occurred by legal means.
So, it is only if the means by which the division of the Crown occurred was by what I will use for summary form or put in longer form in our written submission, is by the unilateral Commonwealth legislation, not from a paramount source and not through the co‑operative mechanism provided by section 51(xxxviii) that the problems about section 106 or Melbourne Corporation arise. At paragraph 5 of the reply submissions, the Commonwealth submits:
For completeness, the Commonwealth submits that the Adoption Act is also supported by the “nationhood” and by the external affairs power –
Then at paragraph 11, the Commonwealth requests that:
in the event that the Court decides that it is necessary to –
consider whether the Adoption Act is supported by either of those powers, and that it would offend section 106 or Melbourne Corporation then if we provide an opportunity to provide more detailed submissions on the issue.
Your Honours, I simply request that in the event that the Court does get to the point – and I might say it would appear, perhaps, to be an unlikely event, that the Court finds the need to address that issue, then we would simply ask for an opportunity to put in some submissions in reply to any further submissions that the Commonwealth might put on the issue. Unless there are any questions ‑ ‑ ‑
KIEFEL CJ: Thank you, Mr Solicitor.
MR WAIT: Thank you.
KIEFEL CJ: Ms Schoff, anything in reply?
MS SCHOFF: Yes. In reply to a question from Justice Steward, how has Parliament treated Mr Chetcuti as an alien, the Solicitor‑General for the Commonwealth pointed to section 25 of the 1948 Act and said that in treating him unlike others – not as a citizen ‑ that was a treatment of him as an alien.
But we say citizenship was not the sole criterion for statutory membership of this community until 1986. Until that time, there was no dichotomy between non‑citizen and alien and therefore any treatment of him under section 25 of the Act as a non‑citizen cannot have the consequence that Parliament was treating him as an alien. The proper construction of section 25 of the 1948 Act should be that it was merely supplemental, a supplementary means by which persons could be admitted to the political community.
A point was made that under the 1948 Act British subjecthood was merely derivative of citizenship and that it was citizenship that conferred rights and membership to the Australian political community, but that Act has to be seen, in our submission, as part of a scheme with all the other Acts to which we have referred in our submissions at paragraphs 51 to 55 which made it quite plain that it was the status of British subject, not citizenship, that conferred those rights. Even if the Parliament had had capacity at that time to exclude all but citizens from those rights, it did not exercise that power. It did not do so. It did not, for instance, legislate to say that those who are not citizens will not have or will not be members of the Australian political community. It did the opposite; it treated them as non‑aliens.
The case can be distinguished, for instance, from the circumstances of Ame. In that case there was specific legislation that deprived those who had been given a form of citizenship, those who were in the territories a form of citizenship, and there was specific legislation that subsequently deprived them of those rights.
Justice Gordon asked whether paragraph 37 of that decision should be read in light of what followed at paragraph 38; that is, a reliance on the territories power in section 122, and we say emphatically that it should, and that is apparent from paragraph 34 in the judgment at page 458 of the report where their Honours are referring to the aliens power and they say:
It was argued for the applicant that there is a limitation inherent in the power conferred by s 51(xix) that prevents that power from being applied unilaterally . . . to change a person’s status from non‑alien to alien. This proposition, respecting a limitation upon the s 51(xix) power, overlooks the present significance of the territories power conferred by s 122. We are presently concerned only with whether any such limitation exists in relation to the inhabitants of external territories. What follows is to be understood in that context.
And so, it is not the case that the Commonwealth Parliament has ever legislated to treat Mr Chetcuti as an alien, and that is in clear distinction to what it did in the case of a form of citizenship that had been granted to persons within the external territories. We say it cannot seriously be contended that Parliament can, without clear legislative intent, deprive somebody of their membership of the people of the Commonwealth.
The Solicitor‑General for the Commonwealth’s answer to the question posed about the appellant’s status between 1984 and 1996, what was his status, it was difficult even for the Solicitor‑General to explain that, because it was an accidental status. There was no clear legislative intent, and it cannot be that a person’s rights can be dealt with in that way, on the basis, if we are correct, as we contend, that he had been initially admitted to membership of the political community.
Finally, the respondent points to the effect of various conventions and the like leading up to the Statute of Westminster, and following. We refer to what the plurality said in Shaw at paragraph 24, that:
The development of the “autonomous Communities” recognised by the Conference of 1926 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 –
There are political facts, and they all have a bearing on the issue, but we are here concerned with the rights of an individual, and in our submission, when determining those rights there must be a legal answer. It is not adequate to point to political facts. As Justice Callinan said in Sue v Hill at page 571, paragraph 291:
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.
That is why, we say, that the march of history ‑ ‑ ‑
KEANE J: The purpose or the upshot of Justice Callinan’s judgment in that case was to dissent ‑ the view that the process of identifying changes in Australia’s independence as a nation can proceed by reference to these events. Justice Callinan viewed that approach as being quite illegitimate and in that regard he was in dissent.
MS SCHOFF: But the other members of the Court, your Honour, made the finding ‑ ‑ ‑
KEANE J: Took a different view.
MS SCHOFF: They took a different view, but they said that the evolutionary process was not complete, at least until 1986. Here what the Court is being asked to do is to conclude that on the basis of political events which are not reflected in the express terms of the 1948 Act or indeed in the express terms of the 1920 Act – and we do not agree with the Commonwealth when it says that that Act did not in terms deal with membership of the Australian political community, we refer to section 11 of the 1920 Act in that regard ‑ those Acts expressly conferred or reflected, depending on whether it is our primary or our alternative argument, the appellant’s status as a British subject and therefore a member of this community, expressly said that he was not an alien, and people like the appellant ought be able to rely upon that, rely upon what it says in that Act.
The appellant was not encouraged, as the Solicitor‑General for the Commonwealth said, to take out citizenship. Indeed, the second reading speech, people like the appellant were told it will effect no change in their status. That is why we say that Parliament has not ever treated him as an alien. Quite apart from its capacity to do so, it has never done that. Unless there is anything else, your Honours.
KIEFEL CJ: Yes, thank you, Ms Schoff. The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.
AT 4.00 PM THE MATTER WAS ADJOURNED
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