Hwang v The Commonwealth

In *Hwang v The Commonwealth*, the High Court of Australia considered the constitutional validity of the *Australian Citizenship Act 2005* (Cth). The plaintiffs, Bonnie Hwang and Roger Wenjie Fu, challenged the Act, raising questions about the constitutional basis for the Commonwealth's power to legislate with respect to citizenship. The core of the dispute concerned whether such a power was expressly or impliedly granted by the Australian Constitution, or whether it arose from Australia's status as an independent sovereign nation. Further issues included the relationship between the concept of a "citizen" and "the people of the Commonwealth," the distinction between citizenship and alienage, and the connection between Australian constitutional law and international law.

McHugh J determined that the Constitution does not expressly grant the Commonwealth Parliament power to legislate on citizenship. However, His Honour found that such a power is impliedly conferred by the Constitution, particularly in light of Australia's status as an independent sovereign nation. The Court reasoned that the power to determine who is and who is not a citizen is an essential attribute of sovereignty. This power is distinct from the concept of "the people of the Commonwealth" as referred to in the Constitution, and citizenship is a status to which other rights and obligations attach. The Court also considered the relationship between the Constitution and international law, noting that while international law can inform the interpretation of domestic law, it does not, in itself, create constitutional power.

Consequently, McHugh J ordered that the writs of summons filed by both plaintiffs be struck out and their respective actions dismissed. The plaintiffs were also ordered to pay the costs of the summonses and the actions.