Chetcuti v Commonwealth of Australia

[2020] HCATrans 195

[2020] HCATrans 195

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M56 of 2020

B e t w e e n -

FREDERICK CHETCUTI

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 NOVEMBER 2020, AT 2.18 PM

Copyright in the High Court of Australia

MS G.L. SCHOFF, QC:   If it please the Court, I apologise at the outset, I cannot see the Court, I can only hear.  I appear for the plaintiff, with MS G.A. COSTELLO, QC, MR A. ALEKSOV and MS K.E. SLACK.  (instructed by Lawson Bayly)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR C.L. LENEHAN, SC and MS Z.C. HEGER, on behalf of the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Ms Schoff.

MS SCHOFF:   Thank you, your Honour.  Mr Chetcuti arrived in Australia on 31 July 1948 as a three‑year old.  He was a natural‑born British subject, as was his father, both having been born in the British protectorate of Malta.  The question, or one of the questions, is was he within reach of the aliens power?  Mr Chetcuti submits to this Court that he has never been an alien, although the historical developments over his lifetime and his own personal history in Australia mean that that question must be examined differently now and then.  But the essential question is whether he belonged – or today, whether he belongs to another.  In 1948 when he arrived in Australia that question depended on whether, being a British subject, he belonged to another from the perspective of Australia.

Now, Nolan tells us – that is the decision of Nolan v Minister for Immigration and Ethnic Affairs – when this question was first considered, that a citizen – than an “alien” means:

as a matter of ordinary language, “nothing more than a citizen or subject of a foreign state” –

I take that from the passage of the joint judgment at page 183 of that decision.

HIS HONOUR:   We have moved on a bit since then.

MS SCHOFF:   We have, your Honour, and whilst we do not accept that that definition catches the entirety of the constitutional term, we say that for the purposes of looking at Mr Chetcuti’s status when he arrived here in 1948 it will do.

HIS HONOUR:   Could I ask you this?  In short, the plurality said that one could conceive of a British subject arriving in this country in 1948 as someone who was not beyond the ordinary understanding of “alien”.  Why does that not apply to Mr Chetcuti?

MS SCHOFF:   Well, we have two answers to that.  The first is that in 1948 before he arrived in Australia, firstly, this nation had not developed in its independence such that it could be said that he was a subject of a foreign power.  Secondly, this nation did not have its own…..citizenship.  That was not established until after his arrival.  But, in any event, we say that it matters not because whether or not he was within the aliens power when he arrived, the Commonwealth Parliament accepted him into the formal admission into the Australian political community as a non‑alien.

HIS HONOUR:   Did it not then ensure that the effect of the Citizenship Act was to treat him as an alien but to accord him special privileges, in a sense equal to those of an Australian citizen because he was a British subject?

MS SCHOFF:  Yes, well we contest that, your Honour, and that is really the distinction that the Commonwealth seeks to make. It says that the enactment of the Citizenship Act in 1948 was an exercise of that constitutional power with respect to aliens, but only the first part of that power – that is, not the power to determine who will be admitted to formal membership of the Australian community, but merely an exercise of the second aspect of the aliens power, as the Commonwealth puts it, that is, the power to legislate with respect to the legal consequences of alien status.

We say that that is also the basis on which the majority in Shaw proceeded at paragraph 22 and we say that is not right.  We reject that as sophistry.  We say that had the Nationality Act 1920 or the Citizenship Act of 1948 expressly characterised British subjects born overseas as aliens with special rights, then perhaps those enactments could be characterised in that way, but they did not.

HIS HONOUR:   As before said, it is not just the Commonwealth that says it; it is the plurality in Shaw that said it, is it not?

MS SCHOFF:   The plurality in Shaw says it, that is right, and the Commonwealth bases its submission on what the plurality in Shaw said at 22. That is a fundamental difference between the position of the parties today. We say that the enactment of the Citizenship Act, by that Act the Commonwealth declared that British subjects were not aliens and did not need to be naturalised in order to be formally admitted into the Australian body politic. We say that one could not contemplate a clearer exercise of the constitutional power to determine who will be admitted to formal membership of the Australian community than that.

HIS HONOUR:   Assume for the moment that is correct.  Has not the Commonwealth since changed its mind and said that they will be treated as alien ‑ ‑ ‑

MS SCHOFF:  We say no. We say the Commonwealth has assumed that they will be treated as aliens. All the Commonwealth has done is, by an amendment to the Citizenship Act in 1984, removed any references to British subjects or to aliens but it has not legislated expressly with respect to the status of aliens, if Mr Chetcuti be an alien. There is nothing in those amendments that could be described as legislating with respect to Mr Chetcuti’s alien status and in that respect ‑ ‑ ‑

HIS HONOUR:   Why would not…..is the creation of the category of non-citizen and unlawful non-citizen the creation of persons who are treated as aliens?

MS SCHOFF:   That may be so, your Honour, with respect to those who thereafter enter into Australia.  But, with respect to Mr Chetcuti, we say that by that time, having been formally admitted into the Australian political community when he arrived here in 1948, that he is no longer an alien and that he is outside the reach of that aliens power.

HIS HONOUR:   Is that to say that once the status of non‑alien is acquired, it is – no pun intended – inalienable?

MS SCHOFF:   That is so.  In that respect, Mr Chetcuti is in no different a position to Mr Love or Mr Thoms.  We know, following the decision in Love, that the category “citizen” does not cover the field when it comes to aliens. 

HIS HONOUR:   I understand that.  But, even in Patterson, and even in the judgments of Justice McHugh and Justice Gaudron, it was recognised that the status of non‑alien could be lost by actions, either on the part of the subject or autonomously.

MS SCHOFF:   We do not accept that, your Honour.  We say that Justice Gaudron – who is very clear about this – that one would need express – the Commonwealth Parliament would need to expressly legislate in that regard.  Justice Gaudron in Patterson and Justice McHugh in Patterson – as well as the other Judges forming the plurality – Justices Kirby and Callinan – with respect to Mr Patterson – who is in no different a position to Mr Chetcuti – he, having arrived in this country before the amendments to the Citizenship Act in 1984 – those amendments could not rob him of his non‑alien status. They did not alienate him. We say, all the more so with respect to Mr Chetcuti, who arrived here even before Australia had its own distinct citizenship, or concept of citizenship.

So we say that Justice Gaudron was right when she said that the effect of the enactment of the Citizenship Act was to either recognise, in Mr Nolan’s case, or in Mr Patterson’s case, their status as a non‑alien. Alternatively, to confer upon them as an exercise of the Commonwealth’s legislative power in its first aspect identified by the Commonwealth in its submissions, an exercise of that legislative power to confer upon him the status of a non‑alien, and to therefore, thereby bring him in as a member of the Australian political community.

Can I go back, your Honour, to the time of Mr Chetcuti’s arrival, before the enactment of the Citizenship Act, and he is, of course, the first plaintiff who has come before this Court in that position. When he arrived on 31 July 1948, how was it that anyone was admitted into the Australian political community? Of course, at that time, his entry, his status in Australia was governed by the Nationality Act1920, and it made no provision for this concept of citizenship. 

Your Honour, there is a copy of the Act in the book of authorities if your Honour wishes to see it, but it simply deemed that persons born within his Majesty’s dominions and allegiance would be natural‑born British subjects, that is by section 6(1)(a).  That Act also defined “aliens” as:

a person who is not a British subject –

and it then provided for the naturalisation of aliens.  Now, of course, when Mr Chetcuti arrived, he could not have undertaken - Parliament did not require him to undertake a process of naturalisation because he was considered, as a natural‑born British subject, not to be an alien.  This was a reflection of the previous position at common law, and it was adopted by the Nationality Act.  We can see that from, particularly, the decision of Chief Justice Gibbs in Pochi when he speaks about what the common law was before the enactment of these Citizenship Acts.  So his status as a non‑alien was quite different to those who came as aliens.

As to what Chief Justice Gibbs said in Pochi, when holding that an alien of Italian nationality, who had been absorbed into the Australian political community, nevertheless remained an alien, naturalisation could only ever be achieved by an Act of Parliament, and that was for good reason, because the act of naturalisation had to be marked by some formal act and by the swearing of allegiance to a sovereign.  But that was never required of Mr Chetcuti, or British subjects like him.

HIS HONOUR:   Was his status in that respect any different from a British subject who arrived here after the enactment of the Nationality and Citizenship Act?

MS SCHOFF:   No, we say not, because even after the enactment of that Act he was still – like Mr Nolan or Mr Patterson – described, as aliens were, anyone who was not a British subject, for relevant purposes, and so as a non‑alien the process of naturalisation was not one available.  He could register as a citizen if he wished and, of course, it was the introduction of a citizenship by that Act that the majority in Nolan and the majority in Shaw found to be so significant.

HIS HONOUR:   Well, then if his status in that regard is no different to a British subject who arrived after the enactment of the Nationality and Citizenship Act, why is not his position governed by what the Court has said in Nolan and Shaw?

MS SCHOFF:   Because there is one significant difference, your Honour, and that is because in Nolan and Shaw, particularly in Nolan, if we look at what the majority said at page 184 in the judgment, that what was significant – and we see this then, your Honour, played out in Nolan and in Shaw and in Patterson, and your Honour touched upon it yourself in your Honour’s judgment in Love – thereafter was this dichotomous approach to alien and citizen, and that is because the majority in Nolan said that it was this establishment of a “distinct Australian citizenship” that was significant.

The judgment in Nolan makes two things relevant.  If an alien is a citizen or a subject of a foreign state then one must be able to identify the foreign state.  Now, the majority in Nolan said that at the time of the enactment of the Citizenship Act it was that enactment that created a distinct citizenship of Australia. So, from that point one can see that a citizen or a subject of the United Kingdom is a citizen or a subject of something other and so one needs to look at – one needs to ask whether or not – and the Commonwealth puts this as a positive submission in this proceeding – the United Kingdom was at that date a foreign state.

Now, we say that whether or not it was a foreign state, one of the relevant indicia might be that it had a distinct citizenship but, of course, there are ‑ ‑ ‑

HIS HONOUR:   Just pausing there, do you say the difference between Mr Chetcuti’s status upon arrival and that of, say, Shaw or Nolan, is the enactment of the Nationality and Citizenship Act and its creation of Australian citizenship.

MS SCHOFF:   Yes, although we do not give that creation the same significance that the Commonwealth does, but we say that when he arrived there was no distinct citizenship and so he ‑ ‑ ‑

HIS HONOUR:   I had better ask a different question.  If that is the distinction between Mr Chetcuti and people who arrived after the Act, is it not a distinction about a difference in as much as, if, as has been held to be the case, it was within the legislative competence of the Parliament to enact that enactment and to create that category of citizenship and to treat those who were not within that category as aliens - it was open to regard Mr Chetcuti as not beyond the ambit of the ordinary understanding of “alien” when he arrived in the country?

MS SCHOFF:  Yes, your Honour, but what your Honour just put to me might be so, but we say that that was not the effect of the enactment of the Citizenship Act. Firstly, it established a concept of citizenship but we say that Justice Gaudron was correct when she said that that was not the sole criterion by which it admitted – and we are talking about an exercise of power with respect to aliens – that was not the sole criterion under the Act by which persons like Mr Chetcuti were admitted to the Australian political community because the Act also made it plain that British subjects were not aliens. That is why we say that the Act does not have that effect. I am referring to what Justice Gaudron said in her dissent in Nolan at page 190.

HIS HONOUR:   Ms Schoff, granted that it be accepted that the Nationality and Citizenship Act did not treat British subjects as aliens, nonetheless, thereafter the Parliament enacted legislation which, in effect, if not in name, treats them as aliens and it has been held that it is within the legislative competence of the Parliament to enact that legislation.  What is the difference with Mr Chetcuti?

MS SCHOFF:   Because he arrived at a time before the Parliament treated him as an alien.  He was admitted to formal membership of this community by the Commonwealth when he arrived in 1948.  His status is as – he is now not an alien.  He now, having not only been admitted to that formal membership but having had bestowed upon him all the privileges and having owed all the duties that come with belonging in a formal way to the political community of this country, he is now beyond the reach of the aliens power.  He now belongs to Australia.  He does not belong to Malta.  He belongs here.

So, that is why we say that – the Commonwealth also says that his position is not frozen in time. Having now been admitted to membership, in 1984 whatever the effects of the amendment made to the Citizenship Act may have been for those who thereafter came as British subjects or as the subjects or citizens of any state – foreign state, they did not affect his status. They were not capable of alienating him. That is how we put our submission.

HIS HONOUR:   So, is the real cut‑off point the 1984 Act rather than the 1948 Act?

MS SCHOFF:   That is what we say, yes.  Indeed, so we point to – and the various judgments in Patterson which - of course, there are submissions made by both sides about the precedential value of Patterson and it seems to us that Patterson is at least precedent for the fact that somebody like Mr Taylor who arrived in this country as a British subject prior to 1966 was beyond the aliens power, but the various judgments of the plurality there gave different points of cut‑off times. 

I can just find my notes, your Honour.  Justice Gaudron said that anyone who entered – any person like Mr Chetcuti who entered prior to 1987 with the coming into effect of the citizenship amendments because, of course, they were enacted in 1984 but did not come into effect until 1987, was beyond the aliens power.  That is in her judgment in Patterson at paragraphs 42 and 45. 

Justice McHugh said that the aliens power had reached anyone who entered this country before 1973 with the enactment of the Royal Style and Titles Act which signified the completion of that mystical evolutionary process by which the Crown became divisible and so that the result was that anyone like Mr Taylor who entered before 1973 was beyond that power, his judgment at paragraphs 123 and 124.  In a subsequent decision of – Justice McHugh has, and I will give your Honour the reference – subsequently said that he now agrees with Justice Callinan and there really ought to have been – it ought to have been 1987 with the signing of the – with the enactment of the Australia Act. 

Justice Kirby agreed that anyone entering prior to 1987 with the coming into effect of the Citizenship Act was beyond the aliens power so in that regard he agreed with Justice Gaudron and that was at paragraphs 290 and 313. Justice Callinan agreed with Justice Kirby in that regard at paragraph 377.

So, we would say that the cut‑off is, in fact, with the coming into effect of those changes to the Citizenship Act in 1987. It was Justice McHugh’s judgment in Shaw where he revisited those passages of his judgment in Patterson and said that he now agreed that the cut‑off date should be in 1986 with the enactment of the Australia Act. 

So, the other point that we wish to make about the significance that the majority in Nolan and the majority in Shaw afforded to the concept of a distinct Australian citizenship which had been established by the Citizenship Act in 1948 - it was, in our submission, given undue significance. True, it was, it was a significant event but by far – for the next few decades of much more significance, in fact, was the notion of British nationhood.

We have set out in our reply, the remarks of the Minister for Immigration, Arthur Calwell, when he read the Bill for the second time.  That second reading speech, your Honour, is in the book of authorities at Part E, page 867.  I am not going to take your Honour to it, but it is a very interesting second reading speech.  It really puts these amendments into perspective.  We have set out parts of the speech in our written submission.  Mr Calwell was anxious to reassure the House:

that creation of an Australian citizenship . . . will in no way lessen the advantages and privileges which British subjects who may not be Australian citizens enjoy in Australia.

He stressed that:

They will qualify for the franchise and have the right to become members of Parliament or to enter the public services.  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.

So, in our submission, the majority in Nolan really gave undue weight to the creation of a citizenship, and we again take up Justice Gaudron’s remarks in Nolan, in dissent, at page 191 when she said that the special position in the Australian community of British subjects born outside of Australia – her word was “survived” the introduction of the Citizenship Act, but we would say it did much more than survive, because the Citizenship Act expressly recognised that such British subjects were not aliens and required no naturalisation in order to be members of the Australian political community.

HIS HONOUR:   Does your argument depend upon acceptance of the proposition that because Mr Chetcuti was once afforded the status of a non‑alien, it is beyond the legislative competence of the Parliament now to treat him so?

MS SCHOFF:   Well, yes, that is our second submission.  Our first submission is that he was never an alien, as a British subject, before he arrived.

HIS HONOUR:   I understand that.

MS SCHOFF:   If your Honour is against us on that, then when he arrived, he was - the effect of the 1948 Act, or indeed, the Nationality Act 1920, was to confer upon him the status of non‑alien.

HIS HONOUR:   Yes.  But granted all that is so, may not the Parliament afterwards treat him as an alien, so long as he is not a citizen and not beyond the ambit of the word “alien” in its ordinary understanding?

MS SCHOFF:   Not if he is not an alien, your Honour, because if he is not an alien he is beyond reach of the power.

HIS HONOUR:   But if the conception - or I should say, really, the denotation of “alien” changes over time, the consequence of geopolitical consideration, does not this point arise somewhere where the Parliament can treat as an alien someone who once it could not have?

MS SCHOFF:   Well, that, of course, your Honour - we can talk about that conceptually, but we say that one needs, as your Honour observed in Love, to have a live issue, a predicament, a live predicament like Mr Chetcuti’s, so that when your Honour comes to consider whether he can now be treated as an alien, one has to consider that question in light of his admission to the political community of Australia as a three‑year‑old in a formal way, and then having lived here, admitted to membership of this political community, having been afforded all the privileges of that membership, the ability – and he took up these privileges.  Unlike Mr Shaw, Mr Chetcuti has been eligible to and has voted.  He registered in 1964 in the birthday ballot for compulsory military service.

So, by the time we come to determine now, or even in 1984 when amendments were made to the Citizenship Act, whether or not he could be designated an alien by the Parliament we say no, because by that time he belonged here, he was part of – he was a member of our political community. We know from the recent decision of this Court in Love that questions of citizenship are neither here nor there if, indeed, Mr Chetcuti is a person who belongs to this political community such that he is not an alien.

HIS HONOUR:   One cannot belong to the political community in the relevant respect unless he or she owes an obligation of permanent allegiance to the Crown in right of Australia, can one?

MS SCHOFF:   We would say that Mr Chetcuti owes that allegiance.  He owed an allegiance as a British subject when he arrived here before there was a distinct citizenship, and we say before the Crown had divided, in the sense that that evolutionary process had come to an end, and we rely in that respect upon the judgments of the Justices forming the plurality in Patterson.  But also we rely on the decision of this Court in Sue v Hill which deals with the evolution of Australia to becoming an independent nation and found that in important respects that evolution is not completed until 1986 with the passing of the Australia Act.

We say that, as Justice McHugh pointed out in Patterson, if coming to Australia – if when Mr Chetcuti arrived in this country, he owed allegiance to an as yet undivided sovereign, then like all Australians who were residing here that allegiance is now owed to the Queen in right of Australia.  There was not some bell that rang that suddenly meant that he now owed his allegiance to a different Queen in right of a different – or, rather, a Queen in right of a different State.  So, we would agree with that proposition, but we would say that the proper analysis is that Mr Chetcuti owes that allegiance, just as Mr Love and Mr Thoms did.

Now, the Commonwealth, your Honour, points not just to the amendments of course to the Citizenship Act in 1984 as effecting a change in that relationship between Mr Chetcuti and the Australian political community. The Commonwealth says there were other relevant changes as well to his relationship, such that it is now open to the Parliament to treat him as an alien, if he had not been one before.

The first of those matters, the Commonwealth says that the enactment of the Citizenship Act itself in 1948, which provided that the plaintiff could have obtained citizenship and the commensurate enactment in the United Kingdom of legislation by which the plaintiff became a citizen of the United Kingdom and colonies effected a relevant change, but in our submission that ought not be accepted because the effect of that legislation was to do the opposite. If, indeed, Mr Chetcuti had been an alien, those Acts in fact, as a result of a carefully worked out scheme, either recognised his non‑alien status or conferred that status upon him.

The next matter is the independence of Malta on 21 September 1964, which caused Mr Chetcuti to automatically acquire Maltese citizenship and at the same time the automatic loss of his British subjecthood.  We say that that is something that occurred without Mr Chetcuti’s involvement.  By that time, he had been living many years in Australia.  He had been back to Malta once for a brief time, as the special case establishes, as a child. 

It is not as if he travelled to Malta and was naturalised as a Maltese citizen, thereby renouncing his Australian citizenship.  There was no act on his part that interfered with his relationship with the Australian political community.  In fact, Australia for its part, had nothing to do with the change in this relationship. 

Of course, it is relevant that what the Commonwealth of Australia did was, on 1 May 1970, amend the Citizenship Act to include Malta in that list of countries in section 7(2), so as to confer upon Mr Chetcuti, again, the status of British subjecthood and non‑alien. So we say that is a very important matter because rather than this loss of British citizenship and the gaining of Maltese citizenship having an effect on his relationship with Australia, what Australia does is to reconfirm his status as a non‑alien in 1970.

In this regard, the facts of the authority on which the Commonwealth relies are very different.  They point to the decision of this Court in Ex parte Ame.  But, of course, there, in that case, the plaintiff was, by reason of his birth in the administered territory of Papua, an Australian citizen.  He had never entered Australia before Papua gained independence.  When it did gain independence, its constitution did not permit a dual citizenship. 

Indeed, it is apparent from a reading of the Constitution of Papua and the judgments in Ex parte Ame, that his citizenship, in any event, had not been real because those born in Papua had been given a form of citizenship that did not ever permit them to enter this country permanently.  It was, as Justice Kirby said, a nominal citizenship, a veneer or a fragile and limited character of citizenship.

The effect of Papua gaining its independence and the automatic loss of this form of citizenship that followed, was the result of careful constitutional planning between the Commonwealth of Australia and the Papuans and it was legislation that was enacted to give effect to the wishes of Papua with respect to its citizenship and nationhood.  The Commonwealth Parliament, in any event, enacted those regulations and the Independence Act pursuant to its constitutional power with respect to the Territories. 

The passages of the joint judgment, upon which the Commonwealth relies in this proceeding, expressed that the statements made with respect to the aliens power were made in that particular context.  We refer, for instance, to paragraphs 33, 34 and 38 of the joint judgment.

So, our response to Ex parte Ame is that the plaintiff there was not a real citizen of Australia. He had never been admitted into – formally admitted into the Australian political community. Although the Court there made some pronouncements about the extent of the aliens power the joint judgment did not really give any consideration to the issue of whether the plaintiff there was, in fact, an alien. Justice Kirby did and he concluded that the plaintiff had at all times remained an alien and within reach of the aliens power. That is at paragraph 119 of his judgment. In any event, we know that the Commonwealth was exercising its power under section 122 of the Constitution. 

So, that is a very different case.  We say that the Commonwealth has done nothing with respect to Mr Chetcuti and nor has Mr Chetcuti done anything that would be sufficient to alienate him, he having been admitted as a member of the Australian political community.  …..of course, brings us back to Nolan.

In Nolan, Mr Nolan was in the similar position to Mr Chetcuti – a similar position – because he had come to Australia in 1967 and had been accorded a status as a non‑alien but the Court nevertheless said that because of the amendments to the Citizenship Act in 1984 that he was liable to deportation as an alien. They dismissed an argument such as we have put to the Court today, but they did it in an unreasoned way, in our respectful submission, in a single paragraph of their judgment at page 186.

HIS HONOUR:   But it is part of the ratio, is it not?

MS SCHOFF:   Well, it is part of the ratio, your Honour, but for all the reasons why Justice Gaudron said it was flawed we would urge your Honour to find that it was flawed and it was not just Justice Gaudron in Patterson, it was also each member of the plurality said that that aspect of the judgment of the majority in Nolan was flawed. 

HIS HONOUR:   They had the luxury of being able to say that because they constituted members of the Full Court.  I do not, do I?

MS SCHOFF:   But, your Honour - well ‑ ‑ ‑

HIS HONOUR:   I am bound by Nolan.

MS SCHOFF:   Your Honour might be bound by Nolan, but Patterson does have precedential value.

HIS HONOUR:   According to the plurality in, I think it was…..it has no precedential value beyond what is held with regard to the judicial review of the Minister’s exercise of discretion.  That is because everyone proceeded on a different factual basis, and by reference to different sorts of reasoning.

MS SCHOFF:   Yes, well, except for this.  The plurality all agreed on two things.  One was that the dichotomous approach between citizenship and alien, alien being the obverse of citizenship, was flawed, and that finding of the plurality now gains all the support of the majority of the Judges in Love.

HIS HONOUR:   All Love held relevantly was that, whilst it is ordinarily within the capacity of the Parliament to treat someone who is not an Australian citizen and who was born abroad of non‑Australian parents as an unlawful non‑citizen, unless in the sui generis case of aborigines, because of the Commonwealth’s recognition of their societies, under rules and practices, that dated from before the Crown’s acquisition of sovereignty over the Australian territory and their membership by determination by reference to those, it would be inconsistent with the ordinary understanding of “alien”.  It has nothing to do with Mr Chetcuti, has it?

MS SCHOFF:   Well, it has in this respect, your Honour, because Love confirmed the fact that whether or not a person is a citizen is irrelevant if he is not an alien.

HIS HONOUR:   Unquestionably.  But that is Chief Justice Gibbs in Pochi and never after.

MS SCHOFF:   Yes.  That is what Justice Gaudron had consistently and correctly pointed out in Nolan and in Patterson, and in Te, and it was the position of the majority in Patterson. 

HIS HONOUR:   …..we are on the same page.

MS SCHOFF:   Yes.

HIS HONOUR:   Parliament can treat someone as an alien unless that person cannot be conceived of as an alien within the ordinary understanding of that term.

MS SCHOFF:   We say that Mr Chetcuti falls squarely within that class of persons.  One cannot possibly - he cannot possibly be considered an alien in circumstances where he has been admitted formally by the Commonwealth of Australia to the political community of this country and has had bestowed upon him the status of “non‑alien”.

HIS HONOUR:   I understand that argument, with great respect.

MS SCHOFF:   Yes.

HIS HONOUR:   But what I am endeavouring to put to you is it is contra Nolan.

MS SCHOFF:   Well, it is not contra Nolan insofar as he arrived before the Citizenship Act. Nolan does not stand in his way. If we get to the point where his entry before the enactment of the Citizenship Act is somehow - does not put him in a different position to Mr Nolan, then we say that Love does turn on its head what the majority said in Nolan, because the majority assumed that after the enactment of the Citizenship Act there were two classes, there were aliens and there were citizens, with a slight - taking, obviously, into account what Chief Justice Gibbs said in Pochi that it is not up to the Parliament to determine for itself who is or is not an alien.  There are some persons who could not possibly be aliens.

But really – and we say that Nolan did proceed on that very strict dichotomous approach and when it came up with that approach it was not the result of a long line of cases that had considered these issues.  Your Honour is now in a very different position, there having been a long line of cases right up to Love and Love is of significance, we say, because when one goes back to look at the majority’s judgment in Nolan one can now see that you do not consider this question simply from the perspective of citizenship.  One has to look at the circumstances of Mr Chetcuti to determine whether he belongs to the Australian political community or the obverse, does he belong to any other political community.  Clearly, if one asks that second question the answer must be no, he belongs nowhere else.

HIS HONOUR:   Is he not a Maltese citizen still?

MS SCHOFF:   Well, he is a Maltese citizen but there are many Australians – members of the Australian community who have dual citizenship.

HIS HONOUR:   But he does not.

MS SCHOFF:   Well, he is an Australian and for all the reasons we have advanced he belongs to Australia.  He is not an alien to this country.  So, we say if he is not an alien to this country, or rather I withdraw that – we say the fact that he is a citizen of Malta in the circumstances in which that citizenship has been bestowed upon him is not definitive, it does not – it is not the beginning and the end of the question whether or not he is an alien to this country. 

We have relied upon in our reply submissions and in our other oral submissions the various paragraphs of the judgments in Love that make that clear.  I mean, Mr Thoms and Mr Love were not citizens of this country either.  They were citizens of New Zealand and of Papua and they were not only – they were citizens by birth of those countries.  They were born citizens of those countries.  Mr Chetcuti – Malta did not even exist when Mr Chetcuti was born.  Malta has not existed at any time – Mr Chetcuti has never been to the independent nation of Malta since its inception in 1964.

HIS HONOUR:   I understand that.  Is there any factor which distinguishes Mr Chetcuti’s position from that of Mr Falzon?

MS SCHOFF:   Mr Falzon arrived in this country in – he had been in Australia for, I think, 60 years when his case came up.  Of course, it was not a case that was concerned with the aliens power.  It was concerned with I think it was the Commonwealth power under Chapter III.  I do not have the authority in front of me, your Honour.  I think I am right in saying that he did not arrive until – he was born in 1956 and arrived in 1956.  So he is different from Mr Chetcuti in that regard.

HIS HONOUR:   Because he arrived after the enactment of the 1948 Nationality and Citizenship Act?

MS SCHOFF:   Yes, your Honour.

HIS HONOUR: But did not the Citizenship Act at the relevant time treat Mr Falzon in the same way that it treated Mr Chetcuti?

MS SCHOFF:   It did, your Honour, but if the reasoning – if your Honour is bound by the reasoning in Nolan, then that reasoning proceeds on the basis that the aliens power had reached Mr Nolan because he arrived after the enactment of the Citizenship Act and the establishment under that Act of a distinct citizenship . Mr Chetcuti is in a different case to that.

HIS HONOUR:   So that is what it really comes down to at the end of the day.  It is arrival before the 1948 Act in the sense that makes the difference.

MS SCHOFF:   That is certainly one way in which this issue can be resolved.  If your Honour is bound to stay within Nolan, bound by Shaw and we have ‑ ‑ ‑

HIS HONOUR:   Bound by Falzon.

MS SCHOFF:    But Falzon, your Honour, is not a case that deals with the aliens power.  So if your Honour is bound in that way, then we would say that that is the distinction, the matter that sets Mr Chetcuti aside from any other case that has ever come before this Court, that he arrived before the enactment of the 1948 Act.  Moreover, he arrived before the divisibility of the Crown, before the Crown had finally divided, so that the others all come at a later stage and are dealt with at a later stage in that evolution of Australia as an independent nation and of the evolution by which the Crown divided.

HIS HONOUR:   Which you say was not until 1986.

MS SCHOFF:   Yes, and we rely upon the decisions of this Court in Sue v Hill in that regard and the enactment of the Australia Act.

HIS HONOUR:   Mr Nolan arrived before 1956.

MS SCHOFF:   He did.

HIS HONOUR:   So did Mrs Shaw.

MS SCHOFF:   Yes.  So, Mr Nolan arrived in 1967, your Honour.  Mr Taylor arrived in 1966, and, of course, he was found to be beyond the aliens power.  Mr Shaw arrived in 1974 and Mr Falzon, as I have said, arrived in 1956.

HIS HONOUR:   Yes, all right.

MS SCHOFF:   Unless there is anything else I can assist your Honour with, I note it is 3.18 and that our learned friends want an hour.

HIS HONOUR:   What we want and what we get in life are completely different things.

MS SCHOFF:   Yes.

HIS HONOUR:   Thank you very much, Ms Schoff.

MS SCHOFF:   Thank you, your Honour.

HIS HONOUR:   Mr Solicitor.

MR DONAGHUE: Thank you, your Honour. Your Honour, the question that we understand to be before the Court for resolution today is the question that was identified at the end of the special case on page 59 of the special case book, which your Honour does not need to turn to but the question is: is it within the power of Parliament under section 51(xix) of the Constitution to treat the plaintiff as an alien?

I propose to structure our oral submissions in four parts:  the first, to make some brief submissions about the significance of those words “to treat the plaintiff as an alien”; the second, to address the continuing relevance of foreign allegiance to the question of whether or not a person can be treated as an alien, which will require me to make some brief reference to Love ; the third, to address the significance of the plaintiff’s status as a citizen of Malta since 1964, that being a topic that will require me briefly to address Singh and Ame, and that, as your Honour will understand, is a submission that involves the idea that there can be a change in status.

So, on that limb of the case we would say, whatever be the position in 1948, even if our friends are right, that when the plaintiff arrived he was not treated as an alien, from the acquisition of his citizenship of Malta in 1964 it was open to Parliament to so treat him and that is what has occurred.  So, if your Honour were with us on that submission, you would not need to deal with the 1948 issue.  But the fourth and final part of my submissions is to address that issue, and that will require me to say something about Shaw.

As is inherent in that summary, there is much that is in our written submissions I do not propose to develop orally but I do rely on everything that we have said there, including the rather detailed submissions we have made about the date of Australian independence by reference to all the facts in the special case.  So, if your Honour wishes me to do so, I can speak to that, but I do not otherwise propose to.

HIS HONOUR:   But you do contend and rely upon what you say is the position that at least by the Statute of Westminster Adoption Act we have sufficiently emerged as an independent nation, the fealty to the Crown in right of Australia was a different thing to fealty to the Crown in right of the United Kingdom?

MR DONAGHUE:   I do rely upon that and I will speak to it today – only to the extent of demonstrating that Shaw is strongly supportive of that proposition.  It does not decide it but the reasoning in Shaw is strongly supportive of it.  So, can I start, your Honour, with the significance of the words “treating as an alien”?  As your Honour knows, this Court has acknowledged many times, including in Singh, in Shaw, and in the various judgments in Love and Thoms, that the concept of “alien” did not have an established and immutable meaning at the time of Federation, around 1900, because even though “alienage” is an old concept, at that point in time, the concept was in a state of flux with different theories attributing different significance to place of birth, parentage, foreign allegiance and with legislative modifications of the traditional common law position.

Our submission is that the logical consequence of that, we say, undoubted proposition, is that the question of whether or not a particular person is or is not an alien cannot be a constitutional fact.  To illustrate that proposition, in our submission, the Constitution supplies no answer to the question, is, for example, a person who is born outside of Australia but to Australian parents an alien or not?  You just cannot answer that question as a matter of constitutional interpretation or by reference to some concept of the ordinary meaning of the word “alien” because the word “alien” does not have an ordinary meaning that is capable of answering that question.  It depends upon the theory that is adopted.

That was a matter that this Court has recognised was an appropriate topic for legislative choice.  So, in our submission, the starting point in evaluating this case is that there is no such thing as a determining criterion for whether or not a person is an alien.  There is just a range of possible criterion, the relevant one being whatever is specified by Parliament, subject to a qualification that I will come to and that your Honour is familiar with.

So, in our submission, once one accepts that there was no fixed and immutable meaning in 1900, it necessarily follows that the aliens power has the two aspects that we have identified in writing, the first being that the power carries with it the capacity to define the criterion as to who will have the legal status of alienage, again, subject to the qualification.

Your Honour sees an express recognition of that status defining aspect of the power in paragraph 2 of Shaw.  I will not take your Honour to it but in the joint judgment of three members of the Court with whom Justice Heydon agreed, so there is majority support in Shaw at paragraph 2 for that aspect of the power.  Justice Gageler made the point in paragraph [84] of Love that the identical provision in the Canadian Constitution had been recognised as having that same status‑defining element a hundred years earlier by the Privy Council in a case his Honour cites.

So that it is, in our submission, because of that status‑defining aspect of the power that, again subject to the qualification, the Court in Nolan and in Shaw was quite right in recognising that at least generally speaking citizenship may be seen as the obverse of the status of alien because unless you are in the extreme case of the qualification, the only way that you can identify someone as an alien is by reference to that parliamentary criteria, whatever it may be. 

So, the Constitution gives us a category of person who can be treated as aliens and then in combination with the legislation that is enacted pursuant to that power which can change from time to time, you identify the people who are actually aliens and people who are accorded that status are then subject to the second aspect of the power which is the power to attach legal consequences to having or not having status as an alien.

That is how we submit that conceptually the scheme works subject to the qualification first identified by Chief Justice Gibbs in Pochi that Parliament cannot expand its power to include persons who could not possibly answer the description of “alien”.  In our submission, Love is an example of giving content to that qualification, the majority of this Court held in Love that that particular category of Aboriginal Australians are persons who cannot possibly answer that description of the word.

But that limit that Chief Justice Gibbs identified in Pochi is, in our submission, properly understood not as some freestanding definition of alien that is to be answered as a constitutional fact, it is a limit on legislative power, on the first aspect of the power to define status.  So usually it is up to Parliament within the range of available choices, but there is a limit on the range of available choices, and if Parliament cannot ascribe the status of “alien” to someone outside of that limit.

Many of our friend’s submissions this afternoon, based on Love, and the “belonger” language have, at least implicitly, invited your Honour to approach the issue as if you can identify an alien by saying, well, is Mr Chetcuti a “belonger” or not, does he belong to the Australian community by reference to the very same kinds of things as are usually relied on to support an absorption argument - he has been here for a long time, he has participated in the community, he has voted, been a public servant, et cetera.  But none of those things are capable of making you an alien.

They, at most, and I think our friend acknowledged that in Pochi, Chief Justice Gibbs had expressly rejected the idea that you could cease to be an alien by absorption, there has to be a formal process of membership.  So in our submission, the “belonger” language in Love might help in identifying the limit on the status‑defining power.  It might be the case that where you have a person who belongs sufficiently to Australia, and we would accept, for example, that a person who, on no view of it, belongs to anyone else, if they just have no connection to any country other than Australia then that would be a person who might well be beyond the Pochi limit because they cannot meet the meaning on any ordinary understanding of the word, but one cannot just bypass Parliament’s status‑defining power in resolving the cross‑currents as to the possible meaning of the word.

For that reason, your Honour, we submit that one does not properly read Love and Thoms as saying anything at all about the scope of the aliens power except with respect to this sui generis position of Aboriginal Australians identified in the way that your Honour put to my friend earlier this afternoon.

There is nothing in the judgments that suggests that, with respect to people outside that category, the well-established law from Singh, Shaw and Nolan that it is open to the Parliament to treat as an alien someone who would have been an alien under one of the competing theories at the time of Federation, or that it is open to the Parliament to treat a person who owes allegiance to a foreign country as an alien, has been displaced.  That law, we submit, survives in an unchanged state post Love and Thoms.

It is from that foundation that the three propositions that we have developed in writing rest.  The two I am going to develop orally are relating to the significance of Maltese citizen and the position in 1948.  Both of those arguments ultimately rest on the proposition that where a person owes allegiance to a foreign country that makes the person someone whom Parliament can treat as an alien.  It does not make them an alien necessarily, so it is no part of our case to say that if you are a citizen of Malta, for example, you must be an alien.  Whether you are or not depends on whether you are an Australian citizen.

So that if Parliament chooses to allow dual citizenship, allows you to be a Maltese citizen and an Australian citizen, then you are not an alien, but while your Maltese citizenship remains, you are a person who Parliament may treat as an alien and here the case is easy because, as your Honour put to my friend, Ms Schoff, Mr Chetcuti never became an Australian citizen.

So your Honour does not need to get into perhaps the harder questions around dual citizenship because here we just have a person who owes allegiance to a foreign country and does not owe allegiance to Australia.  For reasons I will come to in a moment, we submit that that is a clear case.

I was going to take your Honour to the passages in Love that, in our submission, support the ongoing relevance of foreign allegiance.  I am not actually sure that I need to do that.  I am happy to do so but I might just give your Honour some references, if that would be convenient to the Court because we accept that there are various passages in Love that support the proposition that foreign allegiance will not be determinative in every case.  That must be true because in Love and Thoms there was foreign allegiance and it was not determinative in every case.

While foreign allegiance is not determinative, in most of the judgments of the various members of the Court there is acceptance that it remains relevant, perhaps even very important as a factor outside the sui generis category of Aboriginal Australians.  In our submission, in Justice Bell’s judgment, her Honour discusses Singh, Shaw and Ame at relevantly paragraphs [57], [61] and [69] all in terms that cast no doubt upon them and then at paragraph [74] expressly bases her position on the sui generis position of Aboriginal Australians.  So her Honour does not squarely grapple with the question but certainly does not cast doubt on the authorities that rest on foreign allegiance. 

In your Honour’s own judgment there is an extensive discussion of allegiance, particularly at paragraphs [249] and [254].  We submit one sees a strong foundation for the ongoing significance of foreign allegiance and then at [263] and onwards your Honour bases your judgment on the sui generis position of Aboriginal Australians.  We have quoted in writing paragraph [254] of your Honour’s judgment where your Honour said that generally speaking:

there is no difficulty in describing a child who is born outside Australia and who is a citizen of a foreign country as an “alien” -

We respectfully agree with that and that is Mr Chetcuti.  He meets that criterion.  Justice Gordon accepted that foreign allegiance was potentially quite important, very important, albeit not determinative, particularly at paragraphs [316] and [322].  Justice Edelman accepted it was relevant but not conclusive at [429] of his Honour’s reasons.

In the dissenting reasons of the Chief Justice at paragraphs [16] to [17], her Honour referred to Singh, highlighting the importance of loyalty and allegiance to alienage and said that alienage applies even to British subjects who have not been naturalised.

Justice Keane at paragraphs [170] to [172] said Singh and Koroitamana were authorities to the effect that foreign allegiance is the clearest example of a characteristic that brings one within the ordinary understanding of the power.

So, in our submission, there is a lot of support in Love for the significance of foreign allegiance outside the sui generis category, and certainly nothing that would overrule Singh or Ame in that regard.  That, your Honour, then brings me to the third part of the four I identified, which is the relevance of the citizenship, the Maltese citizenship of the plaintiff.  Does your Honour have the special case book on the bench?

HIS HONOUR:   Yes.

MR DONAGHUE:   Just to lay the factual foundation for this argument, could I invite your Honour to turn to page 55 of the special case book, in paragraph 95, which is the paragraph dealing with the plaintiff’s personal history.  You can see there, in paragraph c he was born in what is present‑day Malta; paragraph d:

by reason of his birth in Malta on 8 August 1945, was a British subject at the time of his birth –

I think in writing we have given your Honour the statutory foundations for those facts, so I will not bother to take your Honour through them now.  So, British subject at birth, comes to Australia in July 1948, so a few years after he was born, but then if your Honour goes down to paragraph j on the next page, or the bottom of that page:

on the occurrence of Maltese independence on 21 September 1964, automatically:

i.acquired Maltese citizenship by virtue of –

the Maltese Constitution and Maltese legislation, and automatically lost his status as a citizen of the United Kingdom, and therefore lost his status as a British subject, although, as our friend pointed out, and you will see in the next paragraph, that is his statutory status as a British subject, because that is all it is, it is a statutory status. He got the statutory status back again in 1970 by reason of an amendment to the Commonwealth Citizenship Act.

So we accept that he did not do anything in order to bring those changes about, but nevertheless they were changes that occurred because of changes in the geopolitical situation in the world, that a new sovereign country came into being, and on the coming into being of that new sovereign country, by legislation of both the United Kingdom and the new country Malta, the old position, the old citizenship, was removed, and a new citizenship was conferred such that allegiance was owed to someone different to the person that it was owed to before. 

While our friends can say, well, the plaintiff does not belong to Malta, as a matter of law, he does.  As a matter of law, the factual position before your Honour is that he is a citizen of that country.  In our submission, that brings him squarely within the authority of this Court in Singh, and while I will not detain your Honour long with Singh, I would like to take your Honour to it briefly. It is volume 3, tab 13 of the authorities, or (2004) 222 CLR 322.

Your Honour will no doubt recall that this is about a young girl born in Australia to Indian parents who was a citizen of India by reason of her birth.  Her argument was that because she had been born in Australia she was outside the category of person who could possibly answer the description of “alien”, so it was said she is within the Pochi limit and so outside Parliament status‑defining power and the Court said no.

Without taking – there is much interesting discussion of the development of citizenship law throughout the British Empire in this case but to hit the high points, if your Honour goes to paragraph 190 on page 395, there is a heading “What the history demonstrates” in the joint judgment of Justices Gummow, Hayne and Heydon, which comes at the end of a lengthy historical discussion. 

Their Honours say while the word might have had a fixed meaning in the 17th century it did not any more by the end of the 19th century because there had been numerous legislative interventions on the subject but there was one feature about the use of the word that was constant was that “alien” belonged to another and then having discussed British subjects a little, at the end of that paragraph:

“Aliens”, even if it had once had a fixed legal meaning, did not bear such a meaning 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 –

as here in Malta.  If your Honour then turns on a few pages to paragraph 200 you will see their Honours return to this theme and this paragraph requires a little care.  Indeed, as your Honour points out in your judgment in Love, because in the second half of this paragraph their Honours say:

The central characteristic of that status –

as an alien:

is, and always has been, owing obligations (allegiance) to a sovereign power other than the sovereign power in question (here Australia).  That definition of the status of alienage focuses on what it is that gives a person the status:  owing obligations to another sovereign power. 

Now, in our respectful submission, what their Honours say there is right provided it is understood as meaning that essential characteristic that brings a person within the reach of the aliens power, that is, that allows Parliament to treat the person as an alien under the first aspect of the power.  So, it is not a characteristic that automatically results in status as an alien, but it is a characteristic that allows Parliament to make the judgment.  That is, in our submission, how the paragraph should properly be understood and understood in that way, we submit, that it is correct.  Their Honours’ conclusion is at paragraph 205 on page 400, which is expressed by reference to Nolan:

the meaning of “aliens” was conveniently described . . . six members of the Court in Nolan . . . where it was said that “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.  She is . . . within the . . . power.

In our submission, it is hard to read paragraph 205 in any way other than as saying because Ms Singh was an alien – sorry, I withdraw that.  Because Ms Singh was a citizen of India, she owed allegiance to a foreign state, and that brought her within the reach of power.  One focuses on what brings her within the reach of the power rather than what is said to take her outside of it – her birth in Australia or her connection to Australia – her citizenship was enough to allow Parliament to treat her in that way.

In our submission, Chief Justice Gleeson at paragraphs 30 and 32 gave similar significance to her Indian citizenship in finding that Ms Singh was within the reach of the power and so there is a majority of the Court that reasons in that way.  Therefore, we submit on the basis of his Maltese citizenship alone, Mr Chetcuti is within the reach of the power, so that the answer to the question I identified in the special case is that Parliament can treat him as an alien.

One answer that our friends attempt to that line of reasoning is the proposition that your Honour raised with Ms Schoff, which was this idea that alienage is a once and for all status.  So that if at any point in time you are not an alien, then you cannot ever be an alien thereafter, and I think it is fair to say that the plaintiff does put that proposition, so that they say if he was outside the power pre‑1964 then Maltese citizenship does not matter.

I will not take your Honour to it, but in paragraph 52 of our friend’s primary written outline they go so far as to say that you can only lose your status if you take “an active step to sever . . . allegiance”, and that is said by our friends to be supported by Justice Gaudron’s dissenting reasons in Nolan which her Honour repeated in Lim.

We make two responsive submissions.  The first is that even if one assumes that Justice Gaudron’s dissenting reasons accurately state the law, they do not help our friends, and to make that good could I ask your Honour to turn to one passage in Nolan – it is volume 3, tab 9, 165 CLR 178 ‑ and the relevant passage is on page 192, and your Honour has it.

HIS HONOUR:   Yes, thank you.

MR DONAGHUE:   So our friends rely on the middle part of the page where almost exactly halfway down her Honour says - after referring to the Pochi limit, her Honour posits an additional different limit:

Nor, in my view, can the Parliament expand the power by constituting a non‑alien an alien if there has not been some relevant change in the relationship between the person and the community constituting the body politic of Australia –

So, that is the bit that our friends rely on.  But if your Honour keeps reading:

including, e.g., the abandonment of membership of the community –

Well, that one is not relevant:

or the acquisition of membership of some other nation community.

That one, we submit, is relevant because that is exactly what happened in relation to Mr Chetcuti.  Then, for good measure, a few lines further down her Honour expressly says that that condition that she has just identified does:

not necessarily involve any positive act on the part of the person concerned.

She gives an example of Hanoverian residents in England.  So not only does the passage expressly recognise that acquiring citizenship of another country might change the status, but it is inconsistent with the idea that some active step is required by the person who might lose their citizenship.  So, in its terms, it does not help, but also, in our submission, the limit itself is certainly, if understood as our friends understand it, not able to be reconciled with the reasoning in Ame, and could I ask your Honour to go to that case as well, it is volume 3, tab 10, so the next tab, 222 CLR 439.

This is the case, as Ms Schoff noted, about changes to the status of residents of PNG who were Australian citizens, albeit with more limited rights than some other Australian citizens, prior to the independence of PNG but who then, pursuant to a legislative regime very, very similar to that that occurred in relation to Malta, there was a simultaneous acquiring of citizenship of the new sovereign country and loss of the previous citizenship, is what happened under the regime in question.

It is true, as our friends say, that this case was decided primarily on the basis of section 122, but it is also true that six members of the Court in a joint judgment made observations about the aliens power that we submit are relevant to the task your Honour confronts. If your Honour would turn to paragraph 34 on page 458. You see there recorded an argument not unlike the argument our friends are making. It was argued:

there is a limitation inherent in the power conferred by s 51(xix) that prevents that power from being applied unilaterally –

So, it was basically being said, well, you cannot just, by reason of the independence of PNG, take away the Australian citizenship that I previously had.  The rest of that paragraph says, well, you are overlooking the fact that 122 is relevant.  But then in the next paragraph, at 35, having pointed to the fact that it was 122 squarely in play, in the joint judgment of six members of the Court, their Honours say:

In any event, no limitation of the kind proposed applies to the power conferred by s 51(xix).

So, it may be obiter, but their Honours are rejecting the argument that there is a limit on unilateral designation of a person as an alien. This, of course, as your Honour will understand, being a person who was not an alien before, who was a citizen under the Citizenship Act, as it then stood, who was redesignated as an alien, their Honours explain why the argument is wrong near the bottom of that page, they give two reasons, both linked to Singh.  First is the status of alienage has what their Honours here call the:

defining characteristic [of] owing of allegiance to a foreign sovereign power.

And they cite paragraph 200, and we would invite your Honour to read that sentence in the same way as we invited your Honour to read paragraph 200.  So it is not defining in the sense definitional, it is defining in the sense of bringing within the reach of the first aspect of the power so as to allow Parliament to treat people who have that characteristic as aliens if it chooses to do so.

It must be read in that way because, in Koroitamana, for example, their Honours had held that a stateless person is an alien.  So, a person who owes no allegiance is capable of being an alien even though they lack the defining characteristics.  So, we submit, that Koroitamana supports that reading.  But the reason that I have taken your Honour to this paragraph is more for the second point:

Secondly, 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.

Their Honours illustrate that by referring to Sue v Hill, to Shaw, and to Singh, all of which are said to:

illustrate the manner in which changes in national and international circumstances may affect the application of terms such as “foreign” or “alien”.

So, those examples, particularly Sue v Hill and Shaw,  are picking up the idea that changes in the international context whereby States that were previously not independent become independent, can have the consequence that people who were formerly not aliens, become aliens without any need for any act on the part of those persons.  The absence of a need for such an act is addressed in paragraph 36, where it is said:

In Singh . . . the Court rejected the . . . concepts of . . . a bilateral relationship which is a status, alteration of which requires an act on the part of the person whose status is in issue.

Their Honours clearly do not think there is such a limit.  They explain, in paragraph 37 – we rely, particularly, on the second half of 37 – that the aliens power responded to:

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, Ame is difficult, if not impossible, to reconcile with our friend’s notion that, if at some point in time, Parliament has decided not to treat you as an alien, it cannot ever change its mind.  Ame suggests that it can, at least where there are changes in the national or international circumstances that might warrant that, such changes including changes of the kind in Sue v Hill, Australia’s emergence as an independent nation, but also including the independence of a new country such that the status is changed.  So, here, Mr Chetcuti ceasing to be a citizen of the United Kingdom and colonies and becoming a citizen of the newly independent Malta. 

So, for all of those reasons, your Honour, in our submission, your Honour could properly conclude that Mr Chetcuti was a person who it was open to Parliament to treat as an alien just by reference to the fact that he is a citizen of Malta.  Singh would support that analysis, as would Ame.  But as against the possibility your Honour decides not to decide the case on that basis, we say your Honour could reach the same conclusion focusing attention on 1948, as our friends invite you to do, and that is the last topic that I propose to address. 

Your Honour will recall that our friends have said, both in writing and orally to you this afternoon, that they rely on Sue v Hill to support the idea that Australia did not become independent until 1986.  With great respect to our friends, that submission is not tenable.  Sue v Hill says that at least by 1986 Australia had become independent on the enactment of the Australia Acts, that, at least, language is used by the Chief Justice and Justices Gummow and Hayne at paragraph 59 and by Justice Gaudron at paragraph 173 where her Honour says, “At the very latest”.

That did the job for their Honours in Sue v Hill because the question in Sue v Hill was whether at the date of Ms Hill’s nomination for election in 1998 she was a citizen of a foreign power and so disqualified under 44(i) of the Constitution.  So, their Honours just had no occasion – 1986 was plenty to answer the question as to eligibility or not for a 1998 election and their Honours did not attempt to situate the point in time any earlier than that.

Your Honour asked the question of Ms Schoff about Mr Shaw and Mr Nolan which, as your Honour pointed out – both of whom, as your Honour pointed out, arrived prior to 1986.  If it be the case that Australia did not become independent until 1986 then both of those cases are wrong because both of them identify the point in time significantly prior to 1986 and in Shaw’s Case, as I will come to, it expressly identifies 26 January 1949 at the latest and leaves open the question of whether any earlier operation of the aliens power in respect of earlier periods of time.  But it is clearly not 1986, it is decades prior to that date. 

Your Honour will note that our friends have not really made any attempt to distinguish Shaw or Nolan other than by reference to the proposition that Mr Chetcuti arrived in 1948 rather than – so before the commencement of the Citizenship Act. But having drawn that distinction, the plaintiff also says, well, actually we have overplayed – we, the Commonwealth are said to have overplayed the significance of that Act.

Your Honour has not been taken to any fact that occurred between the plaintiff’s arrival in July ’48 and the commencement of the Citizenship Act on 26 January 1949 that would explain treating someone who arrived in that six‑month period of time differently, one as opposed to the other. And there is no change that occurred in that period, so our friends are really left with the proposition that they have embraced, that Shaw is wrong, and that Nolan is wrong.  And really, unless your Honour were to find that those two cases are wrong, your Honour is bound, in our submission ‑ sorry, I withdraw that, I need to qualify that.

HIS HONOUR:   I thought the distinction that Ms Schoff contended for was that, because the 1948 Act had not commenced, there did not exist in Australia at the time of Mr Chetcuti’s arrival, a conception of Australian citizenship ‑ a statutory conception of Australian citizenship, there was simply then British subjects with loyalty to the Crown in light of the United Kingdom and the colonies, and therefore he must have arrived as a non‑alien.  Her submission was that stands in contradistinction to Shaw and Nolan who both arrived after the inception of that category.

MR DONAGHUE:   Yes, that is why I withdrew my submission that your Honour was bound, because I think – because Shaw ‑ the reason that their Honours fixed 26 January and said, at least by 26 January 1949 is because that distinction cannot be drawn, at least from that date.  So that was enough to draw a fairly bright line for their Honours, and I cannot say Shaw decides anything earlier than that, so I cannot say your Honour is bound with respect to the earlier period of time.

HIS HONOUR:   It is starting to connect, though, is it not, that if it were open to the Parliament, as it was, to enact that legislation, beginning in January, could not have enacted it to begin 12 months or six months before.

MR DONAGHUE:   Precisely, your Honour, and actually, there was legislation being enacted ‑ I cannot now remember the exact date that it was passed, but it was passed ‑ it commenced some months later, and it is very hard to see that Parliament could not have chosen a commencement date a few months earlier than the one that it chose, and one sees ‑ and I will take your Honour to them in a moment ‑ many references in Shaw to 1948 generally, not to 1949, as things having happened by 1948.  So, it is very difficult to see why, if it was open to treat someone in that situation, in Mr Chetcuti or Mr Shaw’s situation, as aliens then there would have been any change, because the relevant events pertaining to independence, in our submission, had all already happened prior to that date.

It might matter, and I think this might be one aspect of our friend’s case, to say, well, because there was no separate Australian citizenship prior to January ’49, when he arrived he was not ‑ even if he could be treated as an alien, he had not been treated as an alien at that point in time, and then you cannot change his status.  So, if they were right about that, if they were right in terms of the proposition that your status is fixed forever, then maybe the distinction would work, but for a reason I am about to come to ‑ in fact, perhaps I will do it now, perhaps slightly out of order.

Could I ask your Honour to go to the 1948 Act which is in volume 2 behind tab 5 in the joint book of authorities.  This is the 1948 Australian Nationality and Citizenship Act, as it was then called.  The point that our friends make about this Act focuses on sections 5 and 7.  So, section 5, you will see near the top of the page, there is a definition of alien:

means a person who is not a British subject, an Irish citizen or a protected person –

So they say, well, in Parliament you are defining “alien” not to include me, Mr Chetcuti and, therefore, I cannot have been an alien.  I will say something about that in a moment, but if your Honour goes on then to section 7 a couple of pages on under the heading “British Nationality”:

A person who, under this Act, is an Australian citizen –

so we have here a concept of citizenship that this Act has created:

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, “British subject” is a statutory status derivative upon “citizenship” which is also a statutory concept either under the Australian Act or under an Act of any of the other listed countries.  The listed countries are found in subsection (2) and they include the United Kingdom, Canada, India, Pakistan.  So, if you are a citizen of any of those countries you are, under this Act, a British subject.

These two provisions that I have just taken your Honour to are expressly addressed in Shaw and they are the provisions where the Court says this is just a statutory concept that is narrower than the constitutional concept to which various statutory rights might be attached but it does not tell you anything about whether they are aliens or not.  Indeed, the Court in Shaw says British subjects under these provisions were aliens who had special rights.

The provision that is interesting, in my submission, fatal to what our friends are putting to your Honour, is section 25 of the Act which is in the section in Part V headed “Transitional Provisions”, it is on – sorry, I cannot give your Honour a page number but hopefully you can find – I think it is page 7 of 19 or something – so, if your Honour has section 25:

A person who was a British subject immediately prior to the date of commencement of this Act –

so you are a British subject before 26 January 1949:

on that date, become an Australian citizen if –

you fall within one of the four categories that follow.  If you are “born in Australia”, if you are “born in New Guinea”, you are “naturalized in Australia” or:

immediately prior to the date of commencement of this Act, ordinarily resident in Australia or New Guinea . . . for a period of at least five years.

So, what one sees in section 25 is Parliament expressly not saying, if you are a British subject, you are admitted to formal membership of the Australian community.  Instead one sees, if you are a British subject who has a particular connection to Australia that we will identify, and then the four of them are listed, a careful specification of which British subjects are to be members – now that we have a concept of citizenship – and which are not.  Mr Chetcuti, of course, is in none of those categories.

So, whereas many British subjects who were in Australia at the time of the commencement of this Act would, by reason of the commencement of this Act, have been recognised as formal members of the community, others were not.  The Act did not then leave those people with no remedy or no capacity to become members of the community.  It created a specific procedure that would allow them to seek that formal admission.  Your Honour sees that formal procedure in section 12 of the Act.  It links back to those countries that get the special statutory status of British subject because, in section 12, it is provided that the Minister may by grant of a certificate, register as an Australian citizen a person who is a citizen of one of those countries.

So, if you have got the derivative statutory status – by reason of being a British subject linked to one of those countries – you have a fast‑tracked or simplified route to Australian citizenship under section 12.  So, many British subjects will be deemed, by section 25, to be members.  Others have a pathway provided specifically for them.  But our friends invite your Honour to look at this Act and to say, it does not matter that we did not fall within the deemed category, or we did not take the pathway that had been created for us, we just had the membership anyway by reason of our status as a British subject.

In our submission, there is no foundation for that.  That, if it be the case – as Shaw and Nolan have recognised – it was possible for the Parliament to legislate to define the extent to which British subjects would be members of the Australian community, that is quite clearly what it did in these provisions in a differentiated and much more subtle way than our friend’s proposition that they were just beyond the reach of the power from the moment that they arrived.  I think our friend’s argument would entail the idea that if you arrived the day before this Act commenced, you were, thereafter, outside of the reach of the aliens power.  Whereas, if you arrived the following day, you were within it.  There is just no reason to construe 51(xix) in that way. 

Your Honour, I think I can conclude by asking your Honour to go to Shaw which, in our submission, strongly supports everything that I have just been putting to your Honour.  I should say, just to avoid doubt, we said in writing that it was not open to your Honour to ignore the ratio of this case, so of Shaw or of Nolan.  Our friends had invited you not to follow it or to reopen the case that sought leave if needed to do so.  We said that that was not open.  Our friends doubled down on the proposition in their reply and said, well, our authority did not support that.  I will not take your Honour to them, but we gave in a supplementary book two additional cases.  If one needs authority on the point where single Justices of the Court have said they would be bound by the ratio of Full Court decisions.  So Chief Justice Brennan said it in Free v Kelly, Justice McHugh said it in the Nursing Case.  If one needs authority for the proposition, then those cases are authority for it.

If your Honour could go to Shaw, it is volume 3, tab 12, 218 CLR 28. I will not take your Honour back to it, but I mentioned paragraph 2 earlier as the clearest authority for what I have called the first aspect of the aliens power, the status defining aspect of it. The argument that their Honours were dealing with is summarised at paragraphs 8 and 9 and it is very similar to the argument your Honour is now confronting.

It said that because of the relationship between Australia and the UK at the time of the applicant’s birth he was beyond the reach of the power, effectively because he was said to be within the Pochi limit, beyond the ordinary understanding of the word “alien”.  That argument is rejected, starting at paragraph 10, where, three lines down, the plurality say:

Much of the applicant’s argument proceeded from the premise that, because the expression “British subject” could be applied to him, he was not an alien.  That premise is flawed.

For reasons their Honours explained:

First . . . it is a statutory expression . . . and more fundamentally –

because if it proceeds on the basis that:

“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 . . . today, a constitutional and political unity between the UK and Australia which 100 years of history denies.

That passage is interesting because it rather suggests that their Honours were not fixing on some change that occurred in 1949 or in 1948.  Their Honours are suggesting, it seems, a longer period of separation by their reference to 100 years of history, and that is the idea in part that we develop in proposition 3, which Justice Heydon also developed, that there was an Australian body politic from the very moment that the Constitution commenced and that even though it might not have been independent, it clearly was not independent at the moment it came into existence.  It nevertheless had a membership that was distinct from the membership of the British Empire.  I rely on what we have said about that in writing, but I do not want to develop it, but that paragraph lends some weight to it.

What is more interesting for immediate purposes is that particularly in paragraphs 12 through to 14, their Honours highlight some of the historical matters that support the proposition that Australia is independent.  In paragraph 12, under the quote, they refer to HWR Wade referring to sovereignty being an area where political and legal intersect and quote Viscount Sankey by reference to the possibility of the repeal of the Statute of Westminster as saying that the argument:

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.

Now, Viscount Sankey said that in 1935 and their Honours are referring there to the past tense.  The realities of separation, the facts of separation which were reflected in the Statute of Westminster, not even brought about by the Statute of Westminster.

Then in the next paragraph, in Kirmani v Captain Cook, discussing the Statute of Westminster, there is a quote from Chief Justice Gibbs which reflects the same idea.  His Honour refers to the:

autonomy and equality of status with each other and with the United Kingdom which had been recognised by the Balfour Declaration of 1926.  By a process of gradual development, the status of the Dominions had changed –

they had become:

sovereign communities.

Then at 14:

“subject of the Queen” must be understood in the light of the development and evolution of the relationship between Australia and the United Kingdom –

the development and evolution that they have referred to in the previous paragraphs being those earlier developments, the Balfour Declaration in 1926, the Statute of Westminster, and at the end of 14 their Honours refer to:

That recognition necessarily entails recognition of the reality of the independence of Australia from the United Kingdom.

So I emphasise all of that just because, to the extent that Shaw is addressing the question of when Australia became independent, it points very much, in our submission, to 1926 or 1931 as being the relevant dates rather than a later time, and there are many facts in the special case that also support that, and we have said quite a bit about that in writing.  Your Honour ultimately will not need to decide that point, because it will be enough to reach the conclusion prior to 1948. 

Having gone through that factual position, their Honours then shift to a discussion of some of the relevant citizenship legislation at paragraphs 15 and following.  So 15 is the UK law, referring to citizens “of the [UK] and Colonies”, which is what Mr Chetcuti was, and then to what their Honours call, using the same language I have used, the derivative status of being a British subject.  The Australian law is referred to in paragraph 16, and these are the provisions I have already taken your Honour to, including section 7, the same derivative status as a British subject by reference to being a citizen.  Their Honours say:

This Australian legislative status conferred . . . certain advantages under other Australian statutes, such as those dealing with the franchise and the issue of passports.

So their Honours are noting that Parliament, perfectly permissibly, had chosen to attach particular privileges to that statutory status of “British subject”, but it is nevertheless just statutory status.

Paragraph 17 talks about the evolution of the 1948 UK Act, which was their Citizenship Act and our 1948 Act, as reflecting changes again, using the past tense - reflecting changes that had already happened, so had already happened prior to 1948. Indeed, on sees in paragraph 19 – I should say, your Honour, there are lots of details about those negotiations in the special case and we have summarised the position at paragraph 29 of our written submissions. But then in paragraph 19 of Shaw, again referring to House of Lords authorities, this time a 1991 case of Ross‑Clunis, their Honours refer to the 1948 Act as dealing separately with the position of what are described as:

the fully independent countries within the Commonwealth which are named in section 1(3) –

of the UK Act, Australia being one of those countries.  So by 1948, on that view, Australia was fully independent.  Paragraph 20 notes the complex position in relation to nationality laws in the empire, but it is the end of that paragraph that is relevant where it said – the last three lines:

at least by 1948 the subjects of the Queen to which reference was made were subjects of the monarch in right of Australia, not subject to the monarch in right of the United Kingdom.

Then we have a series of passages that our friends specifically singled out for designation as wrong in their written reply submissions at 14 for the reason that these paragraphs are fatal to their case.  So that, in paragraph 21 about halfway down, there is a sentence that reads:

Further, the statute created its own class of aliens which was narrower than the class of what might be called “constitutional aliens”.  This is apparent from the terms of the definition in s 5(1) of “alien” –

So the very definition that our friends rely on is addressed by their Honours in this paragraph and said to be nothing more than a statutory status, narrower than the class of – so in effect what was happening is Parliament was not choosing to treat – or was choosing to give particular privileges to a particular class of alien.  That point is made expressly in paragraph 22, discussed in section 7 and the list of countries that were given British subject status in Australian law.  That paragraph is said to be:

an exercise of the legislative power with respect to aliens.

So the people within it must have been aliens:

The new statutory status rendered those persons a class of aliens with special advantages in Australian law –

As if to emphasise the point, it can hardly be said – as the relevant political facts and circumstances stood in 1948 – that those citizens could not possibly answer the description of “aliens” in the ordinary understanding of the word.  So, that is the language of the Pochi limit.  Their Honours are saying it can hardly be said that the people who are in section 5 and section 7 were not within the ordinary understanding of the words.

Their Honours are saying, obviously, they were within the people who could be treated as aliens and they were so treated.  They were a class of alien given special advantages – so says the Court in paragraph 22 – directly inconsistent with what our friends are putting to your Honours.  Then, finally, I think, if your Honour could go to paragraphs 27 and 28 – also said by our friends to be wrong – in their reply.  Their Honours, in 27 say, on the third line:

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.

The next paragraph:

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 –

So, our friends have said that while there was no – the Crown was indivisible until 86.  The plurality in Shaw say by 1948 you could not any longer find that indivisible Crown and that by that date, by 1948, allegiance to the Queen of Australia was a different thing to allegiance to the Queen of the United Kingdom.

While it is true that, as a matter of, in what might be called the ratio paragraph in paragraph 32 of the judgment, their Honours say the case determines that the power reaches all those who enter after January 1949:

who were not Australian citizens and who had not been naturalised . . . any earlier operation of the power does not fall for consideration.

The reasoning in the case, including those paragraphs that I have emphasised, certainly does not suggest that there was anything in about 1948 that would give you a different answer.  On the contrary, the discussion constantly refers to 1948 in saying by 1948, at least the position was such that there was not an indivisible Crown and, therefore, necessarily, that Australia had, by a gradual process, achieved independence.  We submit probably it had achieved it much earlier – 1926 or 1931 – but it had definitely achieved it by 1948 and those paragraphs make it, in our submission, very difficult to find otherwise.

Insofar as our friends rely on Patterson to try to support the contrary conclusion, the paragraph your Honour had in mind, I think, is paragraph 39 of Shaw where the Court holds it is not authority for anything beyond what it found in relation to the constructive exercise of jurisdiction.  So, it is just not open to your Honour, in our submission, to prefer the reasoning of the majority in Patterson to the reasoning in Shaw.  Shaw deals with the authority of Patterson quite clearly in paragraph 39.  The reasoning in Nolan is equally inconsistent with what our friends are putting to your Honour.

So that we submit that even if your Honour were to conclude that when he arrived as a British subject before there was a notion of Australian citizenship, the Parliament had not chosen to treat Mr Chetcuti as an alien, he was within the category of person who could be so treated because even when he arrived he owed allegiance to the Queen of England.  The relevant monarch in Australia was the Queen of Australia so he owed allegiance to a foreign power. 

We could have treated him as an alien on that basis and even if we did not for the first six months that he was here, from the moment that the 1948 Act commenced, it said to British subjects who were in Australia, your status will be determined according to this transitional provision.  It did not make him an Australian citizen unlike many other British subjects, and it left him with a pathway to apply for formal membership that he never chose to use.  So, from that moment, he was, in our submission, treated by the Parliament as an alien and that has never changed.

If that submission be wrong, there are later points where the same conclusion could be reached, and we have dealt with them in writing, but I do not think I need to detain your Honour on those points.  The last thing I would say is that our friends have relied, particularly in their written submissions, on a whole variety of statutory rights that were attached to British subjects ‑ to the status of a British subject. 

The passage in Shaw I have already emphasised really deals with those but there are express statements in the authorities to the effect that formal membership of the Australian community means – it does not mean these other individual rights.  So, for example, in Koroitamana at paragraph 11, Chief Justice Gleeson and Justice Heydon said:

Parliament has the capacity to decide who will be admitted to formal membership of the Australian community, which now means citizenship.

Justice Keane in Love at [177] says:

Australian law does not recognise an entitlement to membership of the Australian body politic independently of the satisfaction of the ordinary legal requirements and qualifications for Australian citizenship.

There are other similar statements in the judgments, but those are two clear ones.  So the fact that you can vote, for example, does not help in classifying a person as an alien or not.  Chief Justice Gleeson in Te at paragraph 30 said you can give a right to vote for aliens; Justice Gummow and Hayne said the same thing at Patterson at 234.  Justice Callinan said the same thing in Shaw at 176. 

You can make aliens serve in the defence services.  Our friends rely upon a provision that said that British subjects could be made to serve under the National Service Act, that is true.  But, in the very next paragraph, non‑citizens could also be made to serve national service if they were ordinarily resident in Australia if the Minister made an appropriate instrument.

So the particular rights that are or are not attached to various statutory statuses do not help.  The question is formal membership, which is a citizenship question and the plaintiff never used the pathway that he needed to use if he wished to acquire formal membership.  Your Honour, I have gone on longer than I should.  Unless your Honour has any questions, those are my submissions.

HIS HONOUR:   Thank you very much, Mr Solicitor.  Ms Schoff, do you wish to reply?

MS SCHOFF:   I would like to say a few brief matters, your Honour, if your Honour will indulge me with more time.

HIS HONOUR:   Of course.

MS SCHOFF:    Firstly, can I go to the Nationality and Citizenship Act that my learned friend took your Honour to.  He made much of section 25 as casting British subjects who were born overseas and had not resided in Australia for a certain period as into a class that was different and therefore must have signified their alien status.

Section 7 of that Act – and I emphasise the fact that it was the Nationality and Citizenship Act, your Honour and that British nationality was the nationality of Australian citizens and all those other citizens who were British subjects derivatively under section 7 by virtue of their citizenship of other countries.  Nationality was – it was a British nationality and Australian citizens also carried British nationality, even after the enactment of this Act.  “Nationality” meant allegiance, your Honour. 

We have referred in our written submissions – and I rely upon all of them – upon the way in which, for the decades following, the census gathered information from Australians and in all of those years up until 1976 your Honour will find them in the special case book.  For instance, if your Honour goes to page 175 of that book, this is a report following the census in 1961.  The inquiry into nationality of the people asked the people whether they were British or foreign and that is how Australians either born here or overseas were characterised. 

Another example at page 180 of the special case book is from a census bulletin in 1961, a table representing the information taken from the census about nationality and your Honour can see in the title of that table, “Nationality”, that is allegiance.  People were either British or they were foreign.  That is despite the enactment in 1948 of the Nationality and Citizenship Act and the creation of a category of Australian citizen.  Nothing changed vis-à-vis nationality and citizen and allegiance.  Australians whether here or overseas as British subjects remained…..to Britain and they were British nationals. 

The Commonwealth in its submissions and our learned friend…..spoke of the various criterion which were open to Parliament to adopt, the various criterion by which it might treat somebody as an alien.  There was the blood, the soil on which they were born, and in both of those respects Mr Chetcuti was belonging to the British - the sovereign, the Queen in the right of Britain.  He was born a British subject on British soil and thereafter he was admitted into this country as a non‑alien. 

As we have said, either that status was recognised by the 1920 Act and then the 1948 Act or it was conferred upon him.  Thereafter the question of whether he remains or could be treated as an alien is one of fact and we say that there is nothing that has ever changed since that time that could cause the Parliament to now treat him as an alien.  With respect to the power to alienate someone who has reached or attained the status of non‑alien, can I also add a reference to Justice Callinan in Shaw at paragraph….. 

Some brief response to the submissions that were made about the effect of the results in Singh.  It was put that owing allegiance to a sovereign power was an…...that had remained unaltered and it permitted the Commonwealth Parliament to treat Mr Chetcuti as an alien.  We have made comprehensive written submissions about that in our reply and we say that it cannot be determinative in this case.

Then in relation to Sue v Hill, our learned friend said that the Court in that case made their finding about the time by which the UK could be considered to be a foreign power as being at least 1986 and the submission was put that because the Court there was looking at the relevant date being the date of nomination for election which was in 1998, it was not relevant to trace back and to define with precision when that evolution was complete and that it was sufficient to say at least 1986.

But, your Honour, a close reading of that authority demonstrates that at least 1986 was founded on actual events and the significance of the passing of the Australia Act.  In particular, we refer to paragraphs 71 and 72, where in the joint judgment their Honours were dealing with whether or

not the States acted on the advice only of the Ministers of the Australian Government or Ministers of the United Kingdom, whether or not the Queen acted on that advice.

They held in paragraph 72 that until 1986, the monarch took advice from the United Kingdom Government on such matters as the appointment of State Governors for the making of orders or proclamations under imperial legislation relating to the States.  So those findings about 1986 were tied to the enactment of the Australia Act.  It was not simply an “at least” finding.  We say that they are - it is on this occasion that the Court makes the definitive finding about when the evolutionary process was complete, and finds at 95 in its conclusion, that it culminated with the enactment of the Australia Act.

So that is the occasion on when the Court makes that finding, and the passages to which our learned friend took your Honour in Shaw about 1948 do not deal with those aspects which we say are relevant to determining when the Crown finally - when that mystical, evolutionary process was finally completed.  Unless there is anything else, your Honour, those are the matters in reply.

HIS HONOUR:   Yes, thank you very much, Ms Schoff.  Ladies and gentlemen, I propose to reserve my decision, although obviously, I will need to get it out fairly quickly.  I am grateful for the assistance. 

Adjourn the Court.

AT 4.34 PM THE MATTER WAS ADJOURNED