Chetcuti v Commonwealth of Australia

In the case of *Chetcuti v Commonwealth of Australia*, Nettle J of the Federal Court of Australia considered a claim brought by the plaintiff, who sought a declaration that he was not an alien within the meaning of section 51(xix) of the Constitution. The plaintiff, born in Malta in 1945 as a British subject, arrived in Australia in 1948 and had resided there continuously since, except for a brief period. His visa was cancelled under the *Migration Act 1958* (Cth), leading to his detention pending removal to Malta. The plaintiff contended that his status as a British subject upon arrival in Australia, prior to the commencement of the *Nationality and Citizenship Act 1948* (Cth), precluded him from being considered an alien under the Constitution.

The central legal issue before the court was whether the plaintiff, having entered Australia as a British subject before the enactment of the *Nationality and Citizenship Act 1948* (Cth), could be lawfully treated as an alien for the purposes of the Commonwealth Parliament's constitutional power under s 51(xix). This required the court to determine the meaning of "alien" in the context of Australia's constitutional framework and the historical evolution of British and Australian nationality laws. The court also had to consider whether the plaintiff's subsequent acquisition of citizenship of the United Kingdom and Colonies in 1949 and then Malta in 1964 affected his status.

Nettle J reasoned that the plaintiff's status as a British subject at the time of his arrival in Australia did not, in itself, prevent him from being considered an alien within the meaning of s 51(xix) of the Constitution. The court applied principles derived from constitutional law concerning the powers of the Commonwealth Parliament, particularly the aliens power, and the historical development of citizenship and nationality. The judge found that the plaintiff's claim was without merit, concluding that the plaintiff's entry as a British subject did not confer upon him a status that exempted him from being classified as an alien under the Constitution, especially in light of subsequent legislative changes and his own subsequent citizenship acquisitions.

Consequently, Nettle J ordered that judgment be entered for the defendant, the Commonwealth of Australia, and that the plaintiff's claim be dismissed with costs.