Hwang v The Commonwealth

[2005] HCA 66

HIGH COURT OF AUSTRALIA

McHUGH J

Matter No S428/2005

BONNIE HWANG (AN INFANT BY HER
NEXT FRIEND LI XIA YU)   PLAINTIFF

AND

COMMONWEALTH OF AUSTRALIA & ANOR             DEFENDANTS

Matter No S498/2005

ROGER WENJIE FU (AN INFANT BY HIS
NEXT FRIEND HUI LING HUANG)  PLAINTIFF

AND

COMMONWEALTH OF AUSTRALIA & ANOR             DEFENDANTS

Hwang v The Commonwealth
Fu v The Commonwealth
[2005] HCA 66
Date of Order:  27 October 2005
Date of Publication of Reasons:  28 October 2005
S428 and S498/2005

ORDER

1.The writ of summons filed by the plaintiff, Bonnie Hwang, on 15 September 2005 is struck out and the action is dismissed.

2.The writ of summons filed by the plaintiff, Roger Wenjie Fu, on 11 October 2005 is struck out and the action is dismissed.

3.The plaintiff in each matter is to pay the costs of the summonses and the costs of the actions.

Representation:

B Levet for the plaintiffs in each matter (instructed by Michaela Byers)

A Markus for the defendants in each matter (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hwang v The Commonwealth
Fu v The Commonwealth

Constitutional law – Validity of Australian Citizenship Act 2005 (Cth) – Whether Constitution provides power with respect to citizenship – Whether such power arises from express or implied terms of Constitution – Whether power with respect to citizenship arises from status as independent sovereign nation.

Constitutional law – Citizen – Whether "citizen" is synonym for "the people of the Commonwealth" – Relationship between citizenship and alienage – Citizenship as status to which other rights attach.

Constitutional law – Relationship between Constitution and international law.

Australian Citizenship Act 2005 (Cth).
Migration Act 1958 (Cth).

Words and phrases: "the people of the Commonwealth", "alien", "citizen".

1. McHUGH J.   In these two proceedings, which were heard together, the defendants have applied to strike out the writ of summons filed on behalf of each plaintiff.  Each writ of summons incorporated a statement of claim.  The defendants contend that neither statement of claim discloses an arguable cause of action and that each action "is entirely misconceived, and should be dismissed summarily."  In the actions, the orders sought by the plaintiffs are identical, save for the difference in the plaintiffs' genders.  In the action in which Bonnie Hwang is the plaintiff, she seeks the following orders:

   "1.       Declaration that the Plaintiff acquired Australian Citizenship by birth in Australia and that he [sic] has retained Australian Citizenship since that date, alternat[iv]ely;

   2.        Declaration that the Plaintiff acquired Australian Nationality as subject of the Queen:  by birth in Australian [sic] and that she retained such Australian Nationality since that date;

   3. Declaration that section 10(2) of the Australian Citizenship Act 1948 (Cth) is beyond the power of the Federal Parliament, alternat[iv]ely the Australian Citizenship Act 1948 (Cth) is ultra vires the Constitution;

   4. Declaration that section 198 of the Migration Act 1958 does not apply to the Plaintiff;…