KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
FREDERICK CHETCUTI APPELLANT
AND
COMMONWEALTH OF AUSTRALIA RESPONDENT
Chetcuti v Commonwealth of Australia
[2021] HCA 25
Date of Hearing: 11 May 2021 Date of Judgment: 12 August 2021
M122/2020
ORDER
Appeal dismissed with costs.
On appeal from the High Court
Representation
G L Schoff QC with G A Costello QC and K E Slack for the appellant (instructed by Lawson Bayly)
S P Donaghue QC, Solicitor-General of the Commonwealth, and C L Lenehan SC with Z C Heger for the respondent (instructed by Australian Government Solicitor)
M J Wait SC, Solicitor-General for the State of South Australia, with J F Metzer for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Chetcuti v Commonwealth of Australia
Constitutional law (Cth) – Powers of Commonwealth Parliament – Naturalisation and aliens – Deportation – Where appellant entered Australia before commencement of Nationality and Citizenship Act 1948 (Cth) – Where appellant born in Malta and entered Australia as British subject – Where appellant became citizen of United Kingdom and Colonies in 1949 and citizen of Malta in 1964 – Where appellant had not applied to become Australian citizen by registration under Nationality and Citizenship Act – Where appellant's visa cancelled following conviction – Whether appellant entered Australia as alien – Whether within power of Parliament to treat appellant as alien within meaning of s 51(xix) of Constitution.
Words and phrases – "alien", "alienage", "aliens power", "allegiance", "Australian independence", "British subject", "citizen", "citizenship", "Crown in right of Australia", "non-citizen", "treat as an alien".
Constitution, s 51(xix). British Nationality and Status of Aliens Act 1914 (UK), s 1(1)(a). Nationality Act 1920 (Cth), ss 5(1), 6(1)(a). Nationality and Citizenship Act 1948 (Cth), ss 12, 24, 25.
KIEFEL CJ, GAGELER, KEANE AND GLEESON JJ. This is an appeal as of right from a final judgment given by Nettle J[1] after a trial on agreed facts in a proceeding in the original jurisdiction of the High Court in which the appellant challenged his detention under the Migration Act 1958 (Cth) on the ground that he is not within the reach of the legislative power with respect to aliens conferred by s 51(xix) of the Constitution. His Honour concluded that the appellant is within the reach of that power and so gave judgment for the respondent.
The conclusion reached by Nettle J was correct. The appeal must be dismissed.
The appellant's circumstances
The appellant was born on 8 August 1945 in Malta, then still a Colony of the United Kingdom. By virtue of his birth in Malta, the appellant had from birth the status of a British subject under the British Nationality and Status of Aliens Act 1914 (UK) and…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Chetcuti v Commonwealth of Australia [2021] HCA 25
Case
[2021] HCA 25
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the constitutional validity of treating the appellant, Mr Chetcuti, as an alien for the purposes of s 51(xix) of the Constitution. Mr Chetcuti, born in Malta, entered Australia as a British subject before the commencement of the *Nationality and Citizenship Act 1948* (Cth). He subsequently became a citizen of the United Kingdom and Colonies in 1949 and a citizen of Malta in 1964, without having applied for Australian citizenship. His visa was cancelled following a criminal conviction, leading to the dispute over his status as an alien.
The central legal issue before the Court was whether the Parliament had the constitutional power under s 51(xix) to treat Mr Chetcuti as an alien, given his status as a British subject upon arrival and his subsequent acquisition of other citizenships. This required the Court to determine the meaning of "alien" in the context of Australia's evolving sovereignty and nationality laws, particularly in light of the *Nationality and Citizenship Act 1948*.
The Court's reasoning was informed by the decision in *Shaw*, which held that British subjects entering Australia after the commencement of the *Nationality and Citizenship Act 1948* could be treated as aliens if they had not acquired Australian citizenship. The Court noted that the 1948 Act introduced the concept of Australian citizenship, distinguishing it from the status of British subject. Section 5(1) of the Act defined an alien as a person who was not a British subject, an Irish citizen, or a protected person. Section 7 further stipulated that a person was a British subject if they were an Australian citizen or a citizen of specific Commonwealth countries, including the United Kingdom and colonies. The Court applied this framework, finding that Mr Chetcuti, having entered Australia before the Act and not having become an Australian citizen, fell within the category of persons who could be treated as aliens under s 51(xix) of the Constitution.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, GAGELER, KEANE AND GLEESON JJ
GORDON J
EDELMAN J
(dissent)
Apart from the legislation already discussed, the incremental development of Australian sovereignty over this period also included: the Nationality Act 1920 (Cth); the Commonwealth Public Service Act 1922 (Cth); the Statute of Westminster 1931 (UK); and the Aliens Deportation Act 1946 (Cth). These legislative steps to complete independence were arguably not wholly concluded until the passage of the Australia Acts 1986 (Cth and UK). But a significant legislative step, which was the focus of this appeal, was the enactment of the 1949 Act.The 1949 Act and the Shaw decision As explained earlier in these reasons, in Shaw a majority of this Court held that British subjects who entered Australia as citizens of the United Kingdom and colonies after the 1949 Act took effect, and who had not fulfilled the criteria to be Australian citizens, were capable of being treated as falling within s 51(xix) as aliens to the Australian community. No party challenged that conclusion, although Mr Chetcuti submitted that the date could not be pushed further back from 26 January 1949 to the date of his arrival on 31 July 1948. The genesis of the 1949 Act was the British Commonwealth Conference on Nationality and Citizenship in February 1947, which itself had followed consideration in 1945 of the creation of Australian citizenship and the creation of Canadian citizenship in 1946[162]. The Report of that conference recorded the general view of the conference that it would be desirable to adopt a scheme of legislation which combined two matters: first, the ability of each country to determine who are its citizens; and secondly, the maintenance of the common status of British subjects throughout the Commonwealth by recognition of the citizens of particular countries of the Commonwealth as British subjects[163]. Most Commonwealth countries subsequently adopted this model in domestic legislation.[162]See Australia, House of Representatives, Parliamentary Debates (Hansard), 30 September 1948 at 1060, 1062 and the Canadian Citizenship Act 1946 (Can).[163]British Commonwealth Conference on Nationality and Citizenship (London, February 1947): Report with Appendices (1947) at 3 [8]-[9]. Consistently with this model, the 1949 Act created the new concept of an Australian citizen, with citizenship broadly arising from categories of birth, descent, registration, and naturalisation[164], and with Australian citizenship being lost in circumstances including the acquisition of foreign citizenship[165]. There were express assurances in the second reading speech of the 1949 Act that British subjects would "continue to be free from the disabilities and restrictions that apply to aliens"[166]. Section 5(1) of the 1949 Act defined an alien as a "person who is not a British subject, an Irish citizen or a protected person". By s 7, which was common to the model applied by most Commonwealth countries that adopted the model[167], a person was a British subject if the person was an Australian citizen or, by an enactment in a relevant country, was a citizen of that country. The relevant countries were: the United Kingdom and colonies, Canada, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia, and Ceylon[168].[164]See Love v The Commonwealth (2020) 94 ALJR 198 at 285 [441]; 375 ALR 597 at 706‑707.[165]Nationality and Citizenship Act 1948 (Cth), s 17.[166]Australia, House of Representatives, Parliamentary Debates (Hansard), 30 September 1948 at 1062.[167]Parry, Nationality and Citizenship Laws of The Commonwealth and of The Republic of Ireland (1957) at 93.[168]1949 Act, s 7(2).
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, GAGELER, KEANE AND GLEESON JJ,
GORDON J,