Jones v Commonwealth of Australia & Ors

[2023] HCATrans 085

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B47 of 2022

B e t w e e n -
PHYLLIP JOHN JONES
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
First Defendant
MINISTER FOR HOME AFFAIRS
Second Defendant
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Third Defendant

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 JUNE 2023, AT 9.44 AM

____________________

MR S.H. HARTFORD DAVIS: May it please the Court, I appear with MR D.J. REYNOLDS, MR S.J. HOARE and MS K.E.W. BONES for the plaintiff. (instructed by Fisher Dore Lawyers)

MR S.P. DONAGHUE, KC, Solicitor-General of the Commonwealth of Australia: May it please your Honours, I appear with MS F.I. GORDON, SC, MR L.G. MORETTI and MS A.N. REGAN for the defendants. (instructed by Australian Government Solicitor)

KIEFEL CJ: Yes, Mr Hartford Davis.

MR HARTFORD DAVIS: If it please your Honours, we propose to start with Chapter III, and in doing so, we will proceed in three steps: first, we will go to the reasons for the cancellation of citizenship; second, to the 1948 Act, as enforced at the time the plaintiff was granted a citizenship; third, to the 2007 Act at the time of the deprivation. In going through the legislation in a methodical way, we will seek to make good the propositions which are articulated at paragraph 3 of the oral outline. The burden on us, of course, is to seek to show that section 34(2)(ii) of the 2007 Act is not reasonably capable of being seen as necessary for what the defendants identify as its legitimate non‑punitive purpose; namely, to protect the integrity of the naturalisation process.

Would your Honours, please, take up the special case book. I do not know if your Honours’ version has the same corruption of numbers that mine does, but the cancellation of citizenship decision is at annexure SC‑3 to the special case; in my print it has a small 37 in the top right‑hand corner and the words “Attachment D”. It is a letter to the plaintiff from the Department of Home Affairs, dated 11 July 2018.

The statement of reasons for the revocation is a few pages in and has little 42 in the top right‑hand corner where it begins. We wish to draw attention, particularly, to paragraph 14, but before doing so – and without needing to take your Honours to it – of course, members of the Court in Alexander identified the traditional characteristics of punishment as including retribution and denunciation, deterrence and protection of the community. These are characteristics which can be seen as having underpinned this decision. Paragraph 14 refers, in its first line, to the commitment of the government:

to protecting the Australian community from harm as a result of criminal activity –

In the fourth line, the Minister records his view that:

offences against children are very serious and are contrary to community values.

Which reflect the aims of retribution ‑ ‑ ‑

KIEFEL CJ: This is the Minister dealing with the public interest consideration.

MR HARTFORD DAVIS: Yes, your Honour.

KIEFEL CJ: I think Alexander was referring to a statutory provision and how it might be viewed in its purpose.

MR HARTFORD DAVIS: Yes, your Honour, I accept that. The proposition I am seeking to make is that there are, underpinning this decision in its application as a public interest criterion, exhibited the traditional aims of punishment. There is reference in the fourth line to the offences being very serious and contrary to community values, and in the last line of that paragraph involving “breach of trust” ‑ ‑ ‑

EDELMAN J: Why does this matter?

MR HARTFORD DAVIS: Because it illustrates the range of applications of this particular power. In paragraphs 15 and 17, there is reference to “mitigating factors”. In paragraph 16, to:

the need for general deterrence –

and in the concluding section at paragraph 26, one sees all three concepts. In the second line:

grave harm to a member of the Australian community. This is an unacceptable risk –

which is the concept of protection. In the second to last line:

the need for general deterrence and the community’s views of sexual offending involving children.

Being the concepts of deterrence and denunciation. We also emphasise ‑ ‑ ‑

STEWARD J: Just before you move on, paragraph 21 on the second last sentence says:

This visa will allow Mr Jones to remain in Australia permanently –

This is the ex‑citizen visa.

MR HARTFORD DAVIS: Yes.

STEWARD J: Is that just wrong? Or was that true at the time – or what?

MR HARTFORD DAVIS: In so long as he held one and did not depart Australia, it was true. I am going to come to this, but your Honour asked yesterday whether he remained entitled to vote, and the answer is, yes, he did. I will give your Honour the – the Electoral Act is not included in the bundle, but it is section 93(1)(b)(ii). It meant that he was entitled to vote as a person who had held the status of British subject, but that is subject to section 93(7), which says that once he loses – once he ‑ ‑ ‑

STEWARD J: When he becomes an unlawful non‑citizen, yes.

MR HARTFORD DAVIS: Yes. He loses that entitlement. We also emphasise again – to take up the point Justice Edelman raised with me – again is illustrating the range of outcomes authorised by this power. We also emphasise what the deprivation decision did not do or did not consider. It did not do or consider three things. First, it did not make any reference to the circumstances of the plaintiff’s original application for citizenship or the circumstances of the grant of that citizenship. Second, it did not distinguish between pre‑1988 offending – that is, offending which occurred prior to the grant of citizenship – and post‑1988 offending. In taking into account the public interest criterion, it considered all the totality of the offending. And third ‑ ‑ ‑

GAGELER J: We are only concerned with the validity of the provision of the Act, are we not?

MR HARTFORD DAVIS: Yes, your Honour, that is quite ‑ ‑ ‑

KIEFEL CJ: But what you are discussing about whether or not the public interest criterion was fulfilled forms no part of the issues for this Court.

MR HARTFORD DAVIS: I apologise. I was not seeking to make any proposition that the public interest criteria were not fulfilled. We accept that if the law is valid, that they were fulfilled. The point I was seeking to make is one about the range of applications of this power, because I am trying to make good a submission that it goes beyond what is necessary to achieve the protected purpose. It is a power which authorises decisions to be made for reasons which exceed the protected purpose for which its validity is postulated.

EDELMAN J: But, I mean, that is by reference to section 34 itself.

MR HARTFORD DAVIS: Yes.

EDELMAN J: You cannot determine the scope of section 34 by looking at particular factual applications of it unless you know those factual applications are within section 34.

MR HARTFORD DAVIS: I accept that, although – yes, I accept that, your Honour. I mean, the court said in Palmer v Western Australia that sometimes the factual circumstances in which power actually came to be applied will illustrate the range of its applications and therefore be informative as to its validity. That is all I was seeking to do by referring to the decision.

GORDON J: If you are doing no more than asking about the legal operation and practical effect of the provision – that is, section 34(2)(b) which is the subject of your application, as I understand it – is that what this is directed at?

MR HARTFORD DAVIS: Yes.

GORDON J: So, let us go through stages.

KIEFEL CJ: I think you are actually referring to section 34(2)(c).

MR HARTFORD DAVIS: I am sorry. Yes, that is what I meant. It is 34(2)(b)(ii) coupled with (c).

GORDON J: Well, is it? I mean, one says – your challenge at the moment, as I understand the application before the Court, is directed at challenging the validity of section 34(2)(b)(ii).

MR HARTFORD DAVIS: Yes.

GORDON J: And we are looking at the legal operation and practical effect of that provision as a matter of characterisation. Both textual and, to the extent possible, its application too more broadly.

MR HARTFORD DAVIS: Yes.

GORDON J: So, why is it that those reasons that you are taking us to are relevant to that inquiry which has been well‑established?

MR HARTFORD DAVIS: I do not know that I can do better than my previous answers, which is just to say that this decision illustrates the ways in which the power can be applied.

KIEFEL CJ: Perhaps you should move on to your next point.

MR HARTFORD DAVIS: Yes, thank you, your Honour. I come now to the 1948 Act which your Honours will find in volume 1 of the joint book and at tab 4 is the reprint of 3 July 1985. At pages 160 to 161 is Division 2, dealing with the grant of citizenship. Section 13 relevantly sets out the preconditions for the grant and, as your Honours know, page 161 subparagraph (f), is a precondition of the grant that the Minister be satisfied ‑ ‑ ‑

EDELMAN J: Which section?

MR HARTFORD DAVIS: I am sorry, section 13(1)(f) on 161, that the Minister be satisfied – I am sorry, that a person satisfy the Minister that:

(f)he is of good character –

Would your Honours note on page 163, subsections 11(a) to (c) prevent the Minister from granting a certificate of citizenship to a person:

(a)during any period during which proceedings for an offence . . . are pending in relation to the person;
(b)during any period during which the person is confined to a prison in Australia;
(c)during the period of 2 years after the expiration of any period during which the person has been confined in a prison –

including:

(ii)a sentence of imprisonment for life or for a period of not less than 12 months –

We just note that in passing because it shows that, unlike the Migration Act, the policy of this Act is that there is no necessary incompatibility between serious offending and good character. Or, perhaps more precisely, there is no necessary preclusion of a person who has committed a serious offence from a grant of naturalisation. The purpose of these provisions was described in the Hansard for 6 May 1982, which your Honours should have, I hope – we have supplied as an additional hand-up. The Hansard for 6 May 1982, page 2359, in the third line in the right-hand column, to the end of that paragraph, your Honours see an explanation of the purpose of those provisions.

GORDON J: Where am I to read? Sorry.

MR HARTFORD DAVIS: Your Honour should have the Hansard, I hope, for 6 May ‑ ‑ ‑

GORDON J: No, we have 2359. Where on the page are we to read?

MR HARTFORD DAVIS: In the right-hand column, the third line.

GORDON J: Thank you.

MR HARTFORD DAVIS:

Good character is currently assessed on the basis of a clear criminal record.

a few lines down:

Additionally, there is a good case for arguing that persons who have been convicted of serious crimes . . . should be ineligible for the grant of citizenship for a specified period, following release from prison while they prove that they have been successfully rehabilitated.

Returning to the Act, at page 166 your Honours see “Division 4 –Loss of Citizenship”, relevantly, section 21 is the predecessor to the power in question – I am sorry, 21(1)(a)(ii). Before I come to it, I want to say something about the power in section 21(1)(a)(i), and to do so, would your Honours, because it refers to section 50, first go to page 182, where your Honours will find section 50.

KIEFEL CJ: I am sorry, which section are we looking at now?

MR HARTFORD DAVIS: Section 50 is on page 182. Section 50(1)(a) made it an offence to make a knowingly false and material representation or statement, that is, in a material particular, and subsection 50(1)(b), to:

conceal, or cause or permit to be concealed, a material circumstance.

And then, subsection 2 provides a 10-year of limitation period. That is picked up back on page 167 in section 21(1)(a)(i). This is a power to deprive a person of Australian citizenship if the person:

has been convicted of an offence against section 50 in relation to the application for his certificate of Australian citizenship.

We emphasise about this power, that, it has four controls, and those four controls connect it to what the defendants have identified as the legitimate non-punitive purpose.

The first is that, under section 50, there must have been a false or misleading statement or non‑disclosure. The second, also under section 50, is that that must be material – that the statement or the non‑disclosure must be of material information. The third is that, directing attention to section 21(1)(a)(i), it applies only where there is a conviction in relation to the application for citizenship. Your Honours see those words:

convicted of an offence against section 50 in relation to the application –

Fourth, in our submission, there must have been dishonesty because of the way that the offence provision in section 50 is drafted. If your Honours recall, it is a knowingly false representation or it is an act of concealment of material information.

EDELMAN J: But the offence – which I am sure you are going to come to at some stage in section 34 – its equivalent is 21(1)(a)(ii), not (1)(a)(i).

MR HARTFORD DAVIS: Correct, yes, your Honour. What I am seeking to do is to demonstrate that – this is part of our submission that section 21(1)(a)(ii), being the predecessor, goes further than is necessary for the legitimate protective purpose. I am seeking to do so by illustration.

KIEFEL CJ: In the current Act, section 34 – you would be looking at section 34(2)(b)(i).

MR HARTFORD DAVIS: Yes, your Honour.

KIEFEL CJ: The difference between section 34(2)(b)(i) and (ii) is that the first refers to an offence in relation to the actual application to become a citizen.

MR HARTFORD DAVIS: Yes.

KIEFEL CJ: That, in relation to (ii), relates to having been convicted of a serious offence which, read with subsection (5), refers to an offence of a different kind.

MR HARTFORD DAVIS: Yes.

KIEFEL CJ: They are concerned with different matters.

MR HARTFORD DAVIS: Yes, they are, but that is precisely ‑ ‑ ‑

KIEFEL CJ: Why do you not just focus on the one that we are concerned with?

MR HARTFORD DAVIS: Your Honour, I will. I am not seeking to avoid it. What I was trying to do was, again, to illustrate that by reference to other provisions of the Act, which are tailored to the protective purpose which has been identified because of these controls.

KIEFEL CJ: I see. So, you accept that section 34(2)(b)(i) has a protective purpose?

MR HARTFORD DAVIS: Yes.

KIEFEL CJ: But subsection (2)(b)(ii) does not.

MR HARTFORD DAVIS: Yes – or that it pursues that protective purpose in a way which transgresses the relevant boundary.

KIEFEL CJ: But why does it do that when (b)(i) – what is the difference between (b)(i) ‑ ‑ ‑

MR HARTFORD DAVIS: These controls. That is precisely the point that I was seeking to make about the controls which exist in the earlier power.

EDELMAN J: Except there is a gap, and there is a gap that is purportedly filled by 21(1)(a)(ii) or its equivalent in section 34 – which is the period between application and grant where an offence is committed but a conviction has not yet been recorded.

KIEFEL CJ: Really, it is dealing with a situation where, if the offence had been known of, the person would not have been granted citizenship. That is the premise upon which the relevant provision proceeds.

MR HARTFORD DAVIS: Yes, that is my learned friend’s submission. What I am endeavouring to illustrate is that it goes further than that.

EDELMAN J: So, as I understand your submission, then, it is that you do not deny that 21(1)(a)(ii) and all of its successors have a protective purpose, but you say they go further than is necessary to fulfill that protective purpose.

MR HARTFORD DAVIS: Yes. Yes, your Honour.

EDELMAN J: In what ways?

MR HARTFORD DAVIS: In that they lack – in the ways which are listed at paragraph 3 of our oral outline, which I am seeking to develop.

EDELMAN J: Yes. That is really your case, is it not?

MR HARTFORD DAVIS: That is our case, exactly.

EDELMAN J: Because if it is not sufficiently connected to the power to pass these provisions, then you say it is invalid. If it is sufficiently connected, then it cannot be – it will not be punitive and it will be protective.

MR HARTFORD DAVIS: Yes, your Honour, which – I hope, without labouring the point too much – is why I am spending so much time in the mechanics of the Act – is because it is a subtle submission and, in that way, very different to the matter yesterday. Our case requires us to persuade your Honours that there are features of the legislation which go further than is necessary for the protective purpose.

GAGELER J: What is the protective purpose that you acknowledge?

MR HARTFORD DAVIS: I am sorry, your Honour?

GAGELER J: What is the protective purpose that you acknowledge?

MR HARTFORD DAVIS: We acknowledge the purpose as described by our learned friends, namely, to protect the integrity of the naturalisation process. That is a purpose which has been – actually, in precisely those terms – recognised in the US authorities as arising from a tailored statutory provision which exists in the US Code. I will come to that, if I may.

But that protective purpose, insofar as it has been acknowledged in the US cases, does reflect what we submit are controls in the US Code analogous to the ones I was seeking to develop in relation to this first power – namely that US Code and this first power tightly connect the offence in question to the acquisition of citizenship – and they justify a conclusion that the citizenship was acquired illegally or fraudulently.

KIEFEL CJ: You are referring to your outline paragraph 3(c) at the moment in this regard, are you?

MR HARTFORD DAVIS: Yes, actually, your Honour, I am. I think I was putting a slightly different point, which is that section 34(2)(b)(ii) lacks controls.

KIEFEL CJ: The cases of fraud, concealment or dishonesty which are dealt with by the other provisions of section 34(1) and (2), they are dealing with different matters. This is a different subject matter, is it not?

MR HARTFORD DAVIS: Yes, but in a sense, that is precisely my case, and that is the case ‑ ‑ ‑

KIEFEL CJ: But why is it not necessary to meet the protective purpose? I mean, if someone has been guilty of an offence and would not have otherwise been granted citizenship – if one accepts those premises – that is meeting the purpose for a different but what would appear to be a valid reason. Is your point – the one you made earlier – that to be guilty of an offence does not necessarily deny you the status of good character? Is that what it comes down to?

MR HARTFORD DAVIS: That is part of it, yes.

KIEFEL CJ: That is part of it?

MR HARTFORD DAVIS: That is part of it, and an important part of it, but I think – I do not cavil with that your Honour has put to me except to say that the real analytical work is done in the words “would not otherwise have been granted”. That cannot just be assumed. One has to see that the power actually works that way, and so what I am endeavouring to show is that there are other powers that do work that way, but this one does not because it lacks controls to connect the offending and the conduct to the acquisition of citizenship.

GORDON J: Can I put this to you. Is your submission that one takes the legal operation or the legal operation and practical effect of section 34 and one sees a set of controls or provisions directed at the protective purpose of the process of naturalisation? You accept what was put to you by the Chief Justice that 34(2)(b)(ii) is dealing with a different issue which is this gap between application and conduct pre‑application, and then post‑naturalisation, and that to the extent that that gap was intended to be met by this provision, that provision goes too far? And in this sense, as I understand it, when you say not sufficiently tailored, as I understand it, are you putting it in the context of the context of the broader provisions, that 34(2)(b) is not tailored because there is no time limit? It is not sufficiently tailored because it is an offence of 12 months unlike, for example, the provisions in Roach which were three years? Is that what we are dealing with?

MR HARTFORD DAVIS: That is – it is arguments of that kind.

GORDON J: What do you mean, arguments of that kind?

MR HARTFORD DAVIS: In that they are not limited to those arguments, but those are our arguments. It is the six points we list in paragraph 3.

STEWARD J: Can I ask you a question, before you move on. Yesterday a distinction was drawn between the power to refuse the grant of citizenship and then the power to cancel.

MR HARTFORD DAVIS: Yes.

STEWARD J: Do you accept that distinction and thus the validity of what was 11(c) of the 1948 Act, namely, that is the provision which says you can refuse the grant if you have been convicted of an offence for more than 12 months within two years after a period of imprisonment?

MR HARTFORD DAVIS: We accept the validity of that, yes.

STEWARD J: So, all of the reasons for refusal are accepted as valid?

MR HARTFORD DAVIS: Yes.

STEWARD J: All right, thank you.

MR HARTFORD DAVIS: Of course, there is a next step to the argument. That exposes, probably, an analytical assumption in the argument which is that there is a narrower power to revoke on conditions than the power to grant on conditions.

STEWARD J: Yes, I understand.

MR HARTFORD DAVIS: I just wanted to come back to Justice Gordon’s question to make sure I answered it comprehensively. I think it was Justice Edelman that raised the point with me about the gap between pre‑acquisition conduct and post‑acquisition conduct and I hope I am not misunderstanding the point, but that is an issue to which the other powers are directed because it is a conviction after grant for conduct which can occur before grant. Where 34(2)(b)(ii) goes further and goes beyond what is necessary is that it is directed to a universe of conduct which may have no connection to the acquisition itself of citizenship.

EDELMAN J: When you say the other provisions are directed to it – not fully. So, you could have a situation where an offence was committed but it was not in relation to the application, but the offence was committed and it was an offence which showed the person to be of, perhaps, very bad character, but the conviction had not occurred until some time after the grant of citizenship.

MR HARTFORD DAVIS: Is your Honour’s question directed to the other powers or to 34(2)?

EDELMAN J: The other – you took us to section 11(1)(a)(i), and that would not cover the situation I have described.

MR HARTFORD DAVIS: I am just not sure I follow why 34(1)(b)(i) would not cover the situation your Honour has described, because if there was a conviction for an offence against section 50, what would be necessarily involved is that there was a material concealment or knowingly false statement for the purposes of the Act, a conviction of that offence upon proof beyond reasonable doubt, and that under 34(1)(b)(i) it was in relation to the person’s application.

EDELMAN J: Yes.

MR HARTFORD DAVIS: I am sorry if I am just agreeing with your Honour, but ‑ ‑ ‑

EDELMAN J: It may be that the application does not require a person to disclose all facts and circumstances relating to anything that might constitute an offence.

MR HARTFORD DAVIS: Yes.

EDELMAN J: I do not know what the precise detail of the application that Mr Jones was required to complete. But if it did not, and if those circumstances were such circumstances which, if known, might have led to the refusal of the application, then there is a gap.

MR HARTFORD DAVIS: Yes. I accept what your Honour is saying, because what your Honour is saying is there need not have been a fraudulent statement or a material concealment so as to engage section 50, because the relevant question was not asked. And yet, on your Honour’s hypothesis, there may have been an event which, if known about, would have precluded the grant of citizenship and it is to that which the section is directed.

It operates, in effect, in that way as a kind of deeming provision, because – this is the point I was trying to start with. This power, as drafted, does not require that question to be considered. In effect, it almost deems it to have occurred. That is a very important feature of its operation, and it is one on which we rely. That goes further than what is necessary, we say.

STEWARD J: Can I ask you this: what is the point at which it goes further? Is there a provision in your mind which would address the risk of, say, an applicant murdering people between the date of application and the grant of citizenship which is only discovered years later?

MR HARTFORD DAVIS: There could well be such a provision, yes, and it would require the Minister to consider whether, for example, citizenship would or would not have been granted, had the fact been known.

STEWARD J: So, 34(2)(b)(ii) might have been valid if they had added a rider, and the offending would have been of the kind which would have denied citizenship, if it had been known.

MR HARTFORD DAVIS: If it had the sorts of controls.

STEWARD J: If we added that rider, would that be enough?

MR HARTFORD DAVIS: I am sorry, which rider is your Honour accepting me to accept?

STEWARD J: If you add it to 34(2)(b)(ii) – a rider that said not just a “serious offence”, but one which, if it had been known had been committed for the grant of citizenship, would have led to a denial of the grant, would that tailor it sufficiently?

MR HARTFORD DAVIS: Yes, if coupled with an additional limit, requiring that the deprivation power be exercised within a reasonable time.

EDELMAN J: So, basically, you are just saying that the limit of power is the same as the American provisions?

MR HARTFORD DAVIS: Yes, I think I am. I would put it slightly differently, which is to say that the American principles – the American doctrine only takes one so far, because they are dealing with a tailored section and one cannot uncritically apply that doctrine to a section which lacks the controls.

EDELMAN J: The difficulty is in the American cases, the cases have – as I understand your submission – interpreted the provisions in that particular tailored way, but I do not read any of them as suggesting that if the provisions had not been interpreted in that way, they would have been invalid or unconstitutional; that is even assuming that our doctrine is exactly the same as the American doctrine.

MR HARTFORD DAVIS: I accept that. There has been no need in the US cases to go further and to consider that sort of situation that your Honours are dealing with now. Perhaps, at this point, would your Honours take up the current US Code, because I think it assists to make this point. It is at volume 3, tab 32, page 865. Just before I make the points I wish to make about the drafting, I would just point out that – and your Honours do not need to go to this – in volume 13, tab 103, is a decision of a circuit court in the United States in Kairys in 1986, which says, at page 4956 of the bundle:

the purpose of the denaturalization statute is not to punish citizens, but to protect the integrity of the naturalization process. Although sometimes harsh, § 1451(a) merely works to effectuate the intentions of Congress that only those qualified may become and remain citizens. Specifically, the denaturalization statue does not punish naturalised citizens for post‑naturalization acts, and for this reason –

et cetera. That is the verbatim source of the non‑protective purpose identified by our learned friends. Section 1451(a) – your Honours should have in front of you, page 865, in volume 3, in the left‑hand column, at about line 20 – an interesting feature of this is that it is:

the duty of the United States attorneys for the respective districts . . . to institute proceedings in any district court –

so, it is a court proceeding. A few lines down:

for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling –

et cetera:

on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation –

It is a provision which has at least four controls: it is a court that is doing it; it is fraud or an illegal act; it is connected by the requirement that the citizenship be procured by those acts and, as the cases show, there has to be clear and cogent proof of that procurement and of the illegality in the fraud. I can dig up the reference for the clear and cogent proof. We have it in our reply submissions, I think.

So, my point is that the doctrine for which the US cases are authority is tied to a provision – this provision – having controls which are missing from section 34(2)(b)(ii).

STEWARD J: How do we tie this US jurisprudence to naturalisation power in 51(xix)? Bearing in mind, I think, that the US naturalisation laws, as of 1901, were probably broader than they are now.

MR HARTFORD DAVIS: Is your Honour asking me a question about the head of power challenge or about Chapter III?

STEWARD J: I am just trying to work out why this jurisprudence would be relevant to the invalidity of 34(2)(b)(ii).

MR HARTFORD DAVIS: Yes, thank you for the clarification. It is relevant because it is the source of our learned friends’ non‑punitive purpose, and it is relevant as identifying the parameters of that purpose and the source from which it is derived or the provision which it reflects. That must be applied in Australia in accordance with this Court’s doctrines about what is necessary to achieve the non‑protective purpose. I do not know that the US Supreme Court has a doctrine of precisely that kind, i.e., requiring – that, I think, was your Honour’s question. So, one does not go to the US cases to see how the “necessary” test is applied. That must be done under our jurisprudence. But, nonetheless, it does provide a useful illustration of the kind of statute which is shown to be, in our rubric, necessary to the postulated non‑protective purpose – non‑punitive purpose.

EDELMAN J: It does not prove the opposite, though.

MR HARTFORD DAVIS: I am sorry, your Honour?

EDELMAN J: It does not prove the opposite.

MR HARTFORD DAVIS: No, it does not, I accept that. Except for this point: it is at least illustrative. Insofar as section 34(2)(b)(ii) goes further than this provision, that is, we would say, at least an indicator which would inform your Honours’ consideration of whether it is necessary to the legitimate non‑punitive purpose identified in the US cases.

GORDON J: Can I have one more go? I do not understand at the moment – and that is reflecting me and nothing else, I suspect.

MR HARTFORD DAVIS: I hope not.

GORDON J: And that is this: are you biting off more than you need to bite off? You accept that there is a non‑punitive purpose for section 34.

MR HARTFORD DAVIS: Yes.

GORDON J: You accept, I think, at least that there is conduct before the grant of naturalisation which gives rise to a conviction post‑naturalisation, and that it might be possible, consistent with the non‑punitive purpose of 34, to include a provision in the Act which is addressed to that issue.

MR HARTFORD DAVIS: Yes.

GORDON J: Why do we not focus on that, rather than looking to see whether or not we have different subject matters about procurement of fraud for the grant of naturalisation? If you accept, as you do – and properly, I think – that there is a potential to include a provision of that kind, then the question is: what is wrong with that provision consistent with it being either tailored or not tailored to the relevant head of power?

MR HARTFORD DAVIS: Yes.

GORDON J: That is why, I think, a number of us have been asking you what it is about it that, in effect, goes too far – directed at just 34(2)(b)(ii), which is your complaint.

MR HARTFORD DAVIS: Yes.

GORDON J: And that is, I think – I know I have put this to you before – as I understand your case, that it is unlimited in time, and that is why you have taken us to these provisions which identified that there have been in the past in‑built time limits – five years post the grant of naturalisation.

MR HARTFORD DAVIS: Yes.

GORDON J: Compare Roach: three years. In order to identify the limits that might have otherwise been imposed, you say it is any offence. There are a number of things that you rely upon to indicate as a matter of textual analysis, as I understand it, why you say it is not sufficiently tailored.

MR HARTFORD DAVIS: Yes.

GORDON J: Then you say, as I understand it, in its practical operation, we can see that it can be used, consistent with no time limit, in a way which seeks to deprive naturalisation by revoking it, in a sense – 15 years, 30 years, however many years, depending on which way you look at it.

MR HARTFORD DAVIS: Yes.

GORDON J: Is the case any more than that? I do not mean to put it narrowly, but that seems to be the way in which ‑ ‑ ‑

MR HARTFORD DAVIS: That is the case, yes, your Honour.

GORDON J: Narrowed.

MR HARTFORD DAVIS: I am sorry. I have been too indirect, I think. I am trying to build up to that exact – I think that is fair summary of our case. Perhaps, I should just ‑ ‑ ‑

EDELMAN J: But it is the sixth point in paragraph 3 – that is your case if ‑ ‑ ‑

MR HARTFORD DAVIS: That is our case.

EDELMAN J: If those six points – six or some combination of them – establish a lack of connection – or sufficient connection with the power, then you win. If they do not, you lose.

MR HARTFORD DAVIS: Yes, your Honour. Can I then come directly to the six points and perhaps go back for more detail if I need to. The first point your Honour said, paragraph 3(a) of the oral outline is that we say that in the way that the power can be exercised, it is not limited to considering whether citizenship would or would not have been granted. It is too broad to be considered necessary, is our submission.

The discretion in the way that it can be exercised is too broad to be considered necessary, including because it allows, in effect, a punitive decision to be made – that is why I started, perhaps wrongly, with the decision itself, in that it allows punitive matters to be taken into account. That is, the breadth of the discretion cannot be considered necessary to the non‑protective purpose because it means that it validly, if subject to our challenges, can be exercised without regard to the integrity of the naturalisation process and instead with respect to punitive purposes.

EDELMAN J: Is the difficulty with that not that the discretion in (2)(c) is equivalent to a waiver? It operates in favour of an applicant, not against an applicant.

MR HARTFORD DAVIS: Yes. It is capable of – I did not hear.

EDELMAN J: But if you did not have the provision, then you would get no benefit.

MR HARTFORD DAVIS: Yes. And that is the way the US Code works. There is no discretion not to. And I accept the force of your Honour’s point, but that is why I sought to make the point in two parts. It does not require consideration of the protection of the integrity of the process at all and, in addition, it can incorporate elements of punishment because of its breadth. But I accept your Honour’s point; it is a waiver or an alleviation in one sense of what one sees as a strict rule in the US Code. So, it is not the breadth of a discretion in and of itself which is the problem, it is that coupled with the lack of a control directing it to the integrity of the process. Anyway, that is the first point.

GAGELER J: The process being, relevantly, the grant of the certificate of Australian citizenship under section 13 of the Act as it existed in 1985. Is that it?

MR HARTFORD DAVIS: Yes.

GAGELER J: Which was a discretionary grant. One of the factors to be taken into account is the good character of the applicant.

MR HARTFORD DAVIS: Yes. I have a feeling that that point might harm me, but I am not sure why at the moment. Perhaps I will move to the second point, which is at paragraph 3(b) of the oral outline. We say that the absence of any time limit on the use of the power after the date of the conviction breaks the connection of necessity. The expansive time in which this power can be exercised cannot be said to be necessary to the fulfilment of the legitimate non‑punitive purpose.

GAGELER J: Why?

MR HARTFORD DAVIS: So, your Honour knows in this case it was exercised 17 years after the conviction.

GAGELER J: Yes, but how is this point relevant to your argument? I just do not follow it.

MR HARTFORD DAVIS: Your Honour is looking at the operation of the law to see whether it is necessary to the non‑protective purpose, or whether it goes further?

GAGELER J: I am trying to understand your argument.

MR HARTFORD DAVIS: I am sorry, I am endeavouring to explain it. The point we are trying to make is, it cannot be said to be necessary to give this power for an unlimited time period. In a sense, this point implicates the values which underpin the Lim principle because it means that the power comes to be exercised from time to time by different Ministers in different political climates and having regard to varying factors which may play upon the minds of different people with, perhaps, different political persuasions at the time.

We say that implicates the value underpinning the Lim principle, being that judicial independence of decision making is the safeguard of individual liberty and therefore avoids arbitrariness in decision‑making which can be intruded because of subjective factors. So, the ability of a power to be considered, reconsidered by successive Ministers over time and exercised 17 years later, we say, is an aspect of the power which cannot be justified as necessary.

EDELMAN J: By “necessary”, do you mean reasonably appropriate and adapted to the source of the constitutional power, whether that be 51(xix) or the implied nationhood power, or whatever source it is for citizenship?

MR HARTFORD DAVIS: I do not mean that, and I, of course, have regard to the injunction against importing that sort of reasoning into this area of discourse that this Court has articulated in Falzon. So, no, I hope the argument does not have that character.

EDELMAN J: So, where does the necessity requirement come from?

MR HARTFORD DAVIS: From Chu Keng Lim itself – is that what your Honour asks? I am sorry if I misunderstand the question.

EDELMAN J: Well, you have a provision here which is operating, on one view, effectively as a condition subsequent, and you say if that condition subsequent goes further than is necessary, it will be invalid as punitive. But why is that necessity requirement imported here?

MR HARTFORD DAVIS: Your Honour is asking at the level of principle?

GLEESON J: So, in Lim, the reasonable necessity requirement was based on what was required for the purposes of deportation.

MR HARTFORD DAVIS: Yes.

GLEESON J: In this case, it is for what purposes?

MR HARTFORD DAVIS: Well, in Lim, it is detention of aliens as a legitimate non‑punitive purpose, where it is to process an application or deport people whom Parliament is able to and has decided should not be members of the Australian community. So, the power will be categorised as executive if it can be seen to be necessary to that purpose. If it goes further, it is thought to pursue a purpose of its own or, perhaps, pursue a purpose in a way which is incompatible with the doctrine.

EDELMAN J: But what you are asking for here is – you are concerned with citizenship itself. You are concerned with the whole package of welfare rights, rights to serve on juries ‑ ‑ ‑

MR HARTFORD DAVIS: The right to have rights, it has been said.

EDELMAN J: Yes, yes. And you say that there is the same necessity requirement as one would see with detention.

MR HARTFORD DAVIS: Well, we say it seems to be the same test, but the plurality in Alexander, of course, observed that the need for safeguards of individual liberty is stronger, if anything is stronger in relation to citizenship than it is in relation to detention of aliens. I think Chief Justice Gleeson pointed out in Woolley that critical to the decision in Lim is not just the punitive nature of detention but also the status of the person, being an alien, as someone who is inherently, by that status, vulnerable to deportation. That is a very significant, in our submission, point of departure when one is dealing with the deprivation of the right to have rights of an Australian citizen. So, I hope that answers your Honour’s question.

KIEFEL CJ: Can I just take you back to your outline. We are at paragraph 3, have you dealt with (a), (b) and (c)?

MR HARTFORD DAVIS: Your Honour, I dealt with (a) and (b).

KIEFEL CJ: You have touched on (c). That was discussed before.

MR HARTFORD DAVIS: I have touched on (c). If I have time and if the Court will permit me, I would like to go back to the detail of those provisions to unpack them a little, but I think your Honours have my point about (c). We say, in effect the other provisions can be treated as, or are analytically helpful as surrogates of what an appropriately tailored measure looks like, what a measure which is necessary to this non‑punitive purpose looks like.

Paragraph 3(d) of the oral outline makes a point which I think is best illustrated if I go to the section, which I will do in due course, and may I come back to that. Paragraph 3(e) makes the point that there are three different categories of naturalised citizen. There is naturalisation by descent, naturalisation by adoption and naturalisation by conferral under the Act.

In all three categories there is a good character requirement, at least where the person applying is over 18 and does not have another nationality. Yet it is only for the third category into which the plaintiff falls that there is this power – 34(2)(b)(ii). There is no power to strip the citizenship of a person who might be said to fall into this gap that we have been discussing that applies in the other categories. There is no power that applies to naturalised citizens by adoption or descent. We say that is an indicator that this is not about, or not just about the legitimate non‑protective purpose, because if it ‑ ‑ ‑

KIEFEL CJ: No, it recognises that citizenship comes about by different circumstance and the circumstance involves an application for citizenship and facts and offences and other things which can occur between the time application is made and citizenship is granted which, if one reflected upon it, might affect whether or not citizenship had been granted at all. It just deals with different circumstances, Mr Hartford Davis.

MR HARTFORD DAVIS: I am sorry, your Honour, the point I was trying to make is that the good character requirement does apply in all three circumstances. It does apply in all three circumstances, and yet the deprivation power that your Honours are concerned with does not. I am sorry if I misspoke. That was the only point I was seeking to make. I think paragraph 3(f) I have already touched upon. It is to do with the absence of controls and criteria of application which directly connect the provision to the process itself, and that is true only of 34(2)(b)(ii). All of the other deprivation powers have controls which connect the relevant conduct to the process.

GORDON J: I had thought that you had a (g) and that (g) was independent of (a), (b), (c), (d), (e) and (f), as a result of a debate you and I had, if you just focused on the provision itself, it itself lacked control because it did not have a time limit of five years or three years like Roach, or is that covered by b?

MR HARTFORD DAVIS: I think the point your Honour is making is a combination, probably, of (b) and (f). I would like to, if your Honour would permit me, go to the text of section 34 and seek to make the good the point that I have been trying to develop about controls that exist on other powers and which are absent on this power.

Now, your Honours have volume 1, page 95 – section 34(1), just to make good a point I was making a moment ago in dialogue with Chief Justice Kiefel, subsection (1) applies only to citizenship by descent or adoption, and your Honours see that from the note underneath the heading to section 34. And section 34(2) applies to the category with which your Honours are presently concerned, namely, citizenship by conferral. One of the points that we make is that the power in section 34(2)(b)(ii) is not available for those earlier categories – and your Honours have heard what we say about that.

Focusing for the moment on section 34(1)(b)(i), this picks up section 50, which is in slightly different form from the earlier provision. What we emphasise is, really, four things. I do not think I need to go back to section 50, but it retains the requirement that there be a false and misleading statement or non-disclosure – so, there is that first control. It retains the requirement that the information must be material – so there is that second control. Under section 34(1)(b)(i), it applies only where – if your Honours see these words again:

the person has been convicted of an offence . . . in relation to the person’s application to become an Australian citizen –

and again we say, because of the way that section 50 is drafted, read with the provisions in the Criminal Code, it must be, in effect, an offence of dishonesty. So, those are controls which exist in 34(1)(b)(i) which are missing from 34(2)(b)(ii). What I have just said about that power applies, albeit in a slightly different way, to section 34(1)(b)(ii) over on page 96. Your Honours see that is a power to deprive where:

the person obtained the Minister’s approval to become an Australian citizen as a result of third-party fraud within the meaning of subsection (8) –

that definition on page 98 applies if and only if (b), and there is a conviction for the offences listed in subsection (8)(a); and then, in subsection (8)(b):

the act or omission that constituted the offence was connected with the Minister approving the applicant becoming an Australian citizen.

So, that phrase “connected with” provides a slightly different form of control which links the conduct to the application process. That is also true of the migration fraud power, which your Honours see in section 34(2)(b)(iii) on page 96. Migration‑related fraud is – the phrase:

obtained . . . as a result of migration‑related fraud within the meaning of subsection (6) –

which means – your Honours see on page 97:

if and only if –

there is an offence of a kind listed. So, of course, conviction by a court on proof beyond reasonable doubt, of offences there listed, committed at the time before the Minister gave the approval, and (b):

the act or omission that constituted the offence was connected with the person’s entry –

But then, subsection (7) disapplies that:

if the Minister is satisfied that the act or omission that constituted that offence was not in any way . . . material to the person becoming a permanent resident.

So, one sees again, there are these controls connecting the conduct and the offending to the application process itself. What all of those powers have in common – and which distinguishes them from section 34(2)(b)(ii) – is that each of them is enlivened only where there is proof beyond reasonable doubt in a court that there is – sorry – a conviction on proof beyond reasonable doubt by a court of an offence involving fraud and where there is a direct causative connection between the circumstances of the offence and the acquisition of citizenship. That, we say, is analogous to the US Code to which I went earlier and from which the doctrine is derived – upon which our learned friends rely.

Section 34(2)(b)(ii) is different in a way which, we say, is fatal to its validity. It does not require consideration of fraud, much less proof beyond reasonable doubt and conviction by a court of an offence involving fraud. It does not require that the fraud or the criminal conduct be connected causatively with the acquisition of citizenship. Instead – as Justice Edelman raised with me – it, in effect, deems that connection to exist but without requiring that the circumstances be examined – the actual circumstances of the acquisition be examined.

KIEFEL CJ: Mr Hartford Davis, you have spent nearly an hour on paragraph 3. I wondered, given your time estimate, to which you will be held ‑ ‑ ‑

MR HARTFORD DAVIS: Yes.

KIEFEL CJ: ‑ ‑ ‑ it means you really should move on to paragraph 4.

MR HARTFORD DAVIS: Yes, your Honour. Yes, your Honour, I will do that now.

KIEFEL CJ: Is paragraph 4 – it, essentially, means that even though there is a protective purpose, the provision is properly to be understood as punitive.

MR HARTFORD DAVIS: Yes, yes, your Honour.

KIEFEL CJ: And you are deriving that by reference to Alexander. Is that essentially it?

MR HARTFORD DAVIS: Yes, your Honour. Your Honours see those points, I do not need to read them out and, given the time, I can move then to the head of power challenge, unless your Honours have other questions about the Chapter III challenge.

KIEFEL CJ: If you wish to develop a little further ‑ ‑ ‑

MR HARTFORD DAVIS: Thank you, your Honour.

KIEFEL CJ: ‑ ‑ ‑ that is a matter for you but, otherwise, we can move to the other limb – to the other question – if you prefer. It is a matter for you.

MR HARTFORD DAVIS: Thank you, your Honour.

EDELMAN J: You really say paragraph 4 is sort of the flipside of paragraph 3, is it not?

MR HARTFORD DAVIS: Yes, we do.

EDELMAN J: That if there is not the sufficient connection in paragraph 3, then – as in Lim – it is punitive because – particularly in the circumstances of the seriousness of consequences.

MR HARTFORD DAVIS: Yes. Your Honours, I think I will now come to the head of power challenge.

KIEFEL CJ: Head of power challenge, yes, thank you.

MR HARTFORD DAVIS: There are really two alternative bases on which we seek to advance this submission. The first, we say that the law is invalid insofar as it applies to a citizen like the plaintiff who is beyond the outer limits of the naturalisation limit of section 51(xix). That submission has within it at least two logically anterior predicates – upon each of which we need to succeed.

The first is that the law is not otherwise supported by the aliens limb of the power, and the second is that there is a relevant limit on the naturalisation limb of the power – something which the court has not so far, at least by majority, recognised. Those are the matters that we address in paragraphs 5 and 6 of the oral outline, and to which I will come shortly.

Then the second fallback case that we seek to advance is that section 34(2)(b)(ii) is at the periphery of the power and that is an obviously highly contestable submission. But if your Honours accept that submission then we say it should be found to lack a sufficient connection to the power because it is not appropriate and adapted to the postulated purpose.

GAGELER J: The same purpose? We are dealing with the same purpose for this?

MR HARTFORD DAVIS: Yes. And, in effect, the argument about not appropriate and adapted, I do not think I need to repeat. We can just set out the points we make about necessity. But what we think is the really contentious aspect there is whether it is correct to say that section 34(2)(b)(ii) is at the periphery of the power – having regard to authorities like Cunliffe and Fontana Films, where it was held that protection is within the core of the power.

EDELMAN J: How does this head of power challenge add anything to the first ground? If you are right on the first ground, then section 34(2)(b)(ii) is invalid.

MR HARTFORD DAVIS: Yes.

EDELMAN J: If you are wrong about that, why would it not be within a head of power to impose a condition subsequent upon citizenship that is sufficiently tailored as to be non‑punitive?

MR HARTFORD DAVIS: Your Honour, that is, with respect, a good question. My first response to it is what we say spells invalidity under the head of power challenge is – and is only the lack of a time limit upon the exercise of a power. That is, it can be – and we say it is unreasonable and alternatively we say it is invalid because it applies beyond the limit of the power to a naturalised citizen who has been absorbed. But the question your Honour is asking is one I think I need to reflect on further, which is, if it has been held to be necessary to a non‑protective purpose, how could it be unreasonable within the postulated first limit?

EDELMAN J: Whatever phrase one wants to use to describe sufficient connection with power.

MR HARTFORD DAVIS: May I reflect on that further in the course of the dialogue, your Honour? I think the answer that we advance is that we are really here directed to the length of time, or the lack of any time limit on the exercise of the power, and we say that can take it beyond – it can, analogously to Ex parte Henry, be a valid condition when imposed but then cease to apply to a person after they exceed the limit of the power.

GAGELER J: This is a notion that you incorporate into the aliens power; a limit based on absorption into the Australian community, is that right?

MR HARTFORD DAVIS: It involves that idea, yes, your Honour.

GAGELER J: Well, is there more to it than that?

MR HARTFORD DAVIS: Well, there is, because we say that the limit is not incorporated from the immigration power, it arises from the word that has been used – “naturalization”, being a process. That is the way it is described in the cases: a process which has as its terminus membership of the community.

GAGELER J: Is that its terminus? At what point is the power not available to unravel something that was ‑ ‑ ‑

MR HARTFORD DAVIS: That is the point at which we borrow from the Court’s jurisprudence on the immigration power.

GAGELER J: Okay. So, we are back to my first question. What is the limit? How do you crystallise it? How do you explain it? Where is the line drawn? Is it drawn on an individual basis ‑ ‑ ‑

MR HARTFORD DAVIS: It does turn on ‑ ‑ ‑

GAGELER J: ‑ ‑ ‑ by reference to person?

MR HARTFORD DAVIS: Yes. It does turn on facts about individuals.

GAGELER J: All right.

MR HARTFORD DAVIS: Just as Aboriginality does; just as the immigration power limit does. And if what your Honour said in Love about that, about the inapplicability of constitutional facts in section 51(xix), I accept, is inconsistent with what your Honour said there.

GAGELER J: Is that the entirety of the limit that is relevant to your head of power challenge?

MR HARTFORD DAVIS: Yes, your Honour, I think it is.

GAGELER J: All right.

EDELMAN J: Your head of power challenge also is – it applies irrespective of whether Mr Jones is an alien or a non‑alien, because it is concerned with naturalisation. Assume you are right about everything you say about absorption and so on. A non‑alien who has been fully absorbed is still, under the law, entitled to be naturalised with all of the benefits that come from citizenship that the non‑alien would not otherwise have.

MR HARTFORD DAVIS: Yes.

EDELMAN J: So, you are not concerned at all, really, with whether or not Mr Jones is an alien or a non‑alien; you are concerned with the limits of naturalisation.

MR HARTFORD DAVIS: Yes, I think that must be right.

EDELMAN J: Which does come back to the first ground again, then.

MR HARTFORD DAVIS: Yes. Now, I want to try to move through this as quickly as I can whilst doing justice to it. Paragraph 5 of the oral outline I think I can deal with fairly briefly. The plurality in Chetcuti at paragraph 12 described as a “settled understanding” what Chief Justice Gibbs had said in Pochi; namely, that:

the Parliament can in my opinion treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian.

That is really the starting point of our argument, that a person who has been naturalised as an Australian does not come within the ordinary meaning of the word “alien” unless there can be shown in relation to person something else which brings that person within the ordinary meaning of “alien”.

In Alexander that was held to be able to be done by conduct amounting to repudiation of citizenship, and in the British subject cases and also Ex parte Ame, it was held to be changes in sovereign borders or changes in sovereign relationships which are then able to bring people who were citizens or were subjects and therefore non‑aliens back within the remit of the power. Our learned friends, in their oral outline, identify three bases for treating – I am sorry, identify three reasons why:

Section 34(2)(b)(ii) does not treat as aliens persons who could not possibly answer that description in the ordinary sense of the word.

May I start with paragraph 7? They seem to have increasing width. This is the idea that any dual citizen will, by reason of having a foreign allegiance, be within the ordinary meaning of the word “alien”. We submit that proposition does not survive Koroitamana and, as your Honour Justice Gageler pointed out in Love, was implicitly discarded in it as the criterion. We are content to rely on what was said in relation to that argument in the judgments of members of the Court in Love and Alexander and also Chetcuti. I can provide some references if it would assist your Honours, but perhaps that can be done by way of a note at some later stage. Also, we say it is inconsistent with ‑ ‑ ‑

KIEFEL CJ: I think if you want to refer – I do not see any need for notes at a later stage at this point. If you need to refer us to sections of the judgments, take us to them otherwise.

MR HARTFORD DAVIS: I do not need to go to them now, your Honour, because I think your Honours are familiar with the reasoning. I just wanted to be of assistance if it would have been of assistance to give paragraph references: in Love at 66, 263, 316 to 322 and 430; in Chetcuti at paragraph 146; in Alexander, paragraphs 181 to 185.

GORDON J: You also said Koroitamana. Do you propose to refer us to any passages in that case? You do not have to, if you do not want to.

MR HARTFORD DAVIS: No, actually, I was going to, subject to time. The point I was seeking to make is only the point that was made by Justice Gageler and also your Honour Justice Gordon, I think, in Love, which is that once the Court accepted that a stateless person owing no foreign allegiance was nonetheless an alien, then that was an implicit discarding of the criteria of foreign allegiance as something which could turn – relevantly, to our case – a citizen into an alien, or could be a criterion on which Parliament could do that.

Would your Honours bear with me? There is a matter I did wish to point out in Koroitamana 227 CLR 31. It is in volume 5. I do not think your Honours need to go to it now, but I just wish to point out that at paragraph 51 and 24 in the judgment of Justices Gummow, Hayne and Crennan, their Honours were careful to emphasise that there was no need to consider in that case – or express any view in that case on the respondents’ submissions in their broadest form, which was:

that it was sufficient to attract the aliens power that a person was not born in Australia to Australian parents.

Their Honours were careful to emphasise that no issue arose which would require them to consider the position of naturalised Australians or denaturalisation of naturalised citizens. May I then come to the second point which our learned friends rely on in paragraph 6 of their oral outline. This is a point that the law is valid:

because it applies only to persons who were once aliens (it generally being within . . . power to take away rights –

Parliament has given. A passage in Alexander is cited at paragraph 38 which, in turn, cites Kartinyeri v Commonwealth. In our submission that is not a proposition that should be accepted. It is the reasoning which underpinned the decision of Justice Starke in Meyer v Poynton, which we deal in paragraph 7 of our oral outline and about which I propose to say something briefly now.

Meyer v Poynton is at volume 6. It is, of course, an interlocutory decision of a single judge. It is heard and determined on the same day in circumstances of some haste.

KIEFEL CJ: It should be noted, though, that Alexander, at paragraph [38], does not refer to this case as authority for anything.

MR HARTFORD DAVIS: Yes.

KIEFEL CJ: At paragraph [38] in Alexander, it seems to be really reflecting what has been said earlier, particularly at paragraphs [33] to [34].

MR HARTFORD DAVIS: Yes, your Honour. It is also, in our respectful submission – paragraph [38] of Alexander is addressing and rejecting a submission that was advanced in that case, which was characterised as, in effect, once a citizen, never an alien. That was a submission that was put in Alexander and rejected by their Honours.

KIEFEL CJ: Yes.

MR HARTFORD DAVIS: It is in that context that the particular proposition was cited, that what Parliament can give, generally it can take away – which, of course, is correct. But the proposition is subject to any limitations and Kartinyeri, in terms, says that. That really drives one back to the question, which is: are there any limitations? The Court has recognised, of course, the Pochi limitation. The Pochi limitation, in and of itself, might be thought to falsify the broadest application of the principle in relation to section 51(xix). That is because Parliament may give citizenship, but it may not be able to take it away if the person cannot be characterised, in the ordinary understanding of the word, as an alien.

The proposition in its broadest form is also falsified by the immigration power cases; that is, what Parliament can give, it can take away. It is an almost biblical notion. Parliament gives permission to enter the community as immigrants, but the authority of the Court is, it cannot take away that permission after the person is absorbed into the community. At that point, we would emphasise that Ex Parte Walsh and Johnson, the judgment of Justice Isaacs where this proposition – the judgment of Justice Isaacs is often cited as authority for the proposition that what Parliament can give, it can take away, but that was a dissenting judgment on the immigration power where the authority of the Court is now that – or has for a long time now been that what Parliament can give it cannot, necessarily, take away.

We also provided your Honours with some additional material relating to Meyer v Poynton. May I just briefly identify that? Although I accept what your Honour the Chief Justice has just put to me – means that this may not be of more than a passing interest to your Honours, but the first thing we have provided is the Hansard from 8 August 1917. At page 853, in the right‑hand column – I am sorry, I should have said, this is the second reading speech of the bill which amended the Naturalization Act 1903 to introduce the power which was in issue in Meyer v Poynton, being the broad power to revoke naturalised citizenship for any reason that the Governor‑General deems appropriate. At page 853, in the right‑hand column, at about point 4 of the page:

Under the present law we have power to revoke letters of naturalization –

et cetera:

The Bill confers a general power of revocation, and in war time that may be very necessary.

And your Honours notice:

The Imperial Government are considering amendments in the same direction. But I find that they intend to confer power of revocation only for specific causes.

The parties have footnoted various things, perhaps not with as full an elaboration as your Honours might have found helpful – but the 1918 amendments to the British Act introduced the five‑year probation period which was discussed, I think, yesterday. I think your Honour Justice Steward may have raised it yesterday. That is, it might be granted as a condition of citizenship that you had good behaviour for five years and then it can be revoked.

That was a condition introduced in the British Act which was then brought into the Australian Act as part of the Common Code in 1920, and which was repealed in Australia in the 1950s as being an inherently discriminatory measure. Anyway, the only point I draw from this is that the power in Meyer v Poynton was at least explained as a wartime measure.

GAGELER J: The argument put and rejected in Alexander was once a citizen, always a citizen. Your argument is once absorbed into the Australian community, always a citizen, is that right?

MR HARTFORD DAVIS: No, your Honour, with respect. Once absorbed into the Australian community, an otherwise valid condition of naturalisation may cease to be valid. You may pass beyond the limit of Parliament to impose conditions on naturalisation. But it does not follow from that “always a citizen”, because you might repudiate and be alienated for that reason; there might be a change in sovereign borders, and other matters which the Court may yet to recognise brings a person within the aliens power.

So, the limit for which we contend is limited to – in the imposition of conditions on naturalisation which operate to prevent absorption, or empower Parliament to deprive a naturalised citizen of their citizenship after a point at which they are fully absorbed.

STEWARD J: Is it your point that once fully absorbed, you cease to be within the reach of the aliens power save in perhaps three occasions: one, repudiation in some way, in the way it was discussed in Alexander; secondly, a voluntary renunciation, because you moving to another country or what have you; and then thirdly, something which goes to the integrity of the application process, or to the way in which they became absorbed?

MR HARTFORD DAVIS: Yes, and perhaps a fourth category would be a change in sovereign borders of the ‑ ‑ ‑

STEWARD J: Change in sovereign borders might be a fourth, yes.

MR HARTFORD DAVIS: Yes, and we do not suggest – I think we put this too highly in our written submissions, with respect, but we do not suggest that there might never be any other category – there may be circumstances the Court has yet to grapple with – but those are at least the identified situations so far.

STEWARD J: But, in any event, your point is that 34(2)(b)(ii) is not authorised by the aliens power because it does not properly fit in one of those recognised categories.

MR HARTFORD DAVIS: Yes.

STEWARD J: I understand. All right.

MR HARTFORD DAVIS: But we do accept that it is within the naturalisation – within section 51(xix) to denaturalise the breach of a valid condition. Justice Gordon said as much in Alexander.

EDELMAN J: And that includes a condition subsequent as well as a condition precedent.

MR HARTFORD DAVIS: That includes a condition subsequent. So, therefore, the burden is upon us to persuade your Honours that there is a limit on the condition subsequent that can be imposed and that the limit is transgressed here.

We have provided your Honours with a book, or an excerpt from a book, Gerhard Fischer, Enemy Aliens. I am sorry, your Honours do not actually need to go to it. I was just going to say, it discusses Mr Meyer’s case from 99 onwards, in reliance on some archival material, which we examined and we have provided your Honours – this is the last piece of paper with some material from the National Archives of Australia dealing with a file for Mr Meyer as at 1944. Your Honours should find handwritten page numbers on the bottom, I hope, of the document. On page 13, there commences a copy of a report of the Aliens Board.

KIEFEL CJ: Sorry, what is this document intending to prove or show?

MR HARTFORD DAVIS: It proves nothing. I should have explained before I referred to it, or that I seek to draw from it. One of the points that we make about Meyer v Poynton, is that no reasons were given in the decision – in the certificate of denaturalisation.

KIEFEL CJ: Yes.

MR HARTFORD DAVIS: A criticism that we make of the utility of Meyer v Poynton as informing your Honours’ analysis now is that it is typical to grapple with a decision in which the reasons for the denaturalisation were not on the record, as it were. Justice Starke, in accordance with the then‑prevailing doctrine that decisions of the Governor‑General were not judicially reviewable, says that the decision is not invalid for the reason that it does not state any reasons.

Purely as an illustration of that criticism that we make, namely, that it is difficult to grapple with Meyer v Poynton without reasons, we provide your Honours with this material as showing the sorts of things which might plausibly have motivated the decision at the time, and which might therefore be relevant to a consideration of its validity. But, as I endeavour to say, it is a passing interest; perhaps, only historical interest. Page 16, there is an opinion expressed by an officer of the Defence Department, that Mr Meyer:

in my opinion is a German Agent-provocateur and a Spy –

and we provide that to your Honours for the reasons that I have articulated. And that is all I think I need to say about Meyer v Poynton; except save, perhaps, to point out, that, the arguments that we put, of course, were not put to the Court then, and Meyer v Poynton predates the Irish invoice case, at least, and Ex parte Walsh and Johnson, albeit it postdates Potter v Minahan. And therefore, the Court’s doctrines might be said to have evolved since it was decided – Justice Starke, of course, was in the majority in Ex parte Walsh and Johnson.

I think what I have said so far deals with paragraphs 5 and 7 of the oral outline, and in dialogue already there has been some elaboration of what we had proposed to say in relation to paragraph 6 of the oral outline. But can I just come back to it, to complete the discussion. A typical description of the meaning of “naturalisation” which captures, in our submission, the essential characteristics which are implied by the word is that of Chief Justice Gleeson in Ex parte Te. I do not need to take your Honours to it, but it is volume 7, tab 63, page 2522, paragraph 24:

Naturalisation is the act in the law by which a person who was formerly an alien ceases to be one . . . An alien retains the status of alienage until that status is removed by the process of naturalisation.

We submit that the two essential characteristics inherent in the word are, one, that it is a process, and two, that it is one which will conclude with the cessation of alienage. It is those features of the word which we say make it logically necessary that there be an endpoint or an outer limit to Parliament’s ability to impose conditions and, as I have sought to explain in answer to Justice Gageler, it is at that point that we reason by analogy from the immigration power cases, because in those cases it has been held that immigration is an activity which comes to an end with membership of the community signified by absorption. So, what we draw from that is that where a head of power is conferred in a term which describes a process, the inherent meaning of which has an endpoint, then that provides a rationale for implying a limitation on the power.

STEWARD J: You do not contend, do you, that the moment at which an immigrant ceases to be subject to the immigration power because of absorption, that that is the moment when you become a non‑alien?

MR HARTFORD DAVIS: No, we do not make that contention.

STEWARD J: So, more is needed?

MR HARTFORD DAVIS: Yes. Well, we do not need to grapple with the point that has been thrown up by your Honour and Justice Edelman. We do not need to tackle Pochi and the line of cases which follow it which say you cannot shed your alienage by absorption because the plaintiff became a citizen and so our argument is that inherent in the naturalisation power is a limit on the ability to deprive him of that after he exceeds the boundary of the power.

STEWARD J: Is that another way of saying whatever the boundary is, as a factual matter in this case he ceased to be a non‑alien because he became a citizen, because he satisfied the requirements then?

MR HARTFORD DAVIS: Yes, we say he ceased to be a non‑alien when he became a citizen.

STEWARD J: Sorry, he ceased to be an alien.

MR HARTFORD DAVIS: Sorry, yes, he ceased to be an alien when he became a citizen and section 34(2)(b)(ii) may have been valid at the time that he became a citizen under the power – we do not say that it was invalid for all purposes and at all times, but some 30 years after the plaintiff became a citizen and had become fully absorbed into the community in all the ways which are illustrated in the special case, the power of Parliament to impose conditions, by 2018, I think it is, had reached its limit. I was going to take the Court through Ex parte Henry. In the interests of time ‑ ‑ ‑

KIEFEL CJ: We normally have a 15‑minute break. Would that be a convenient time to do so?

MR HARTFORD DAVIS: Yes, thank you, your Honour.

KIEFEL CJ: Thank you. The Court will adjourn for 15 minutes.

AT 11.11 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.26 AM:

KIEFEL CJ: Yes, Mr Hartford Davis.

MR HARTFORD DAVIS: Thank you, your Honours. In Ex parte Henry (1975) 133 CLR 369 – I do not ask your Honours to go to it now, but it can be found in volume 7, page 331 – the Court held that Parliament could attach a condition to the entry of an immigrant child, in effect appointing the Minister as the guardian of the child until age 21. That was the effect of the law. That Parliament could impose such a condition but only for so long as the child remained an immigrant and therefore not after the child:

had become a full member of the Australian community.

In the reasons of Justice Gibbs at 2335 to the top of 2336 of the joint book ‑ ‑ ‑

STEWARD J: Could you give the Commonwealth Law Report pages, please?

MR HARTFORD DAVIS: Yes, your Honour. It is page 373 to 374.

STEWARD J: Thank you.

MR HARTFORD DAVIS: On those pages Justice Gibbs, as his Honour then was, cited the judgment of Justice Starke in Ex parte Walsh and Johnson, who had:

said that “conditions may be attached to persons immigrating into Australia, upon entry, and so long as they remain within the range of the power”. In my respectful opinion, that is a correct statement. I consider that a person who has immigrated into Australia will pass beyond the range of the power when the act of immigration is at an end – that is when that person has become a full member of the Australian community. It follows, in my opinion, that the Parliament can attach to the entry of an immigrant who is a child the condition that the child have a suitable guardian and can ensure that the guardianship subsists until the child has been fully absorbed into the Australian community, but cannot validly make a law providing for the guardianship of a child who has become a member of the Australian community.

At the top of page 373 in the report, Chief Justice Barwick reasons to similar effect. So too does Justice Mason at page 381 to 382 of the report, Justice McTiernan at 373 agrees with the reasons of Justices Mason and Jacobs.

Justices Jacobs and Murphy adopted a different approach upon which we rely in the last plank of our argument, the fallback submission that this is within the periphery of the power. Justices Jacobs and Murphy in effect held that the full range of the law was within the incidental aspect of the power by reference to the fact that it touched, absorbed persons. Your Honours will see that at page 384 in the judgement of Justice Jacobs and page 388 in the judgment of Justice Murphy.

We draw three propositions from Ex parte Henry. First, a power over an activity or a process such as immigration – and we say also naturalisation – does not extend beyond the ultimate conclusion of that process or activity. Second, a power over a process such as immigration – and we say naturalisation – will support conditions, but only for so long as the person remains within the range of the power. And third, alternatively – or relevantly to our alternative case – the fact that a law reaches a person who has concluded the process is an indicator – and we would say a powerful indicator – that one is dealing with the incidental aspect of the power – and that is what Justices Jacobs and Murphy held.

What is true of immigration is also true, in our respectful submission, of naturalisation and I want now to seek to try to develop the analogy – recognising immediately that there is an important difference between immigration and naturalisation, which is that immigration is concerned fundamentally with what has been described as a physical activity. In Potter v Minahan that is how the Chief Justice reasoned. It is a physical activity which describes the crossing of borders and so on.

So, we recognise that is the point of departure because naturalisation is a legal process rather than a physical activity. But, nonetheless, we say that there is an analogy to be drawn for the following reasons. First, immigration and naturalisation are both founded on the same elementary concept. That concept was described in Potter v Minahan (1908) 7 CLR 277 at 289 as:

the division of human beings into communities.

It was that elementary idea his Honour describes as:

an elementary part of the concept of human society –

and his Honour the Chief Justice said it was:

anterior, both in order of thought and in order of time, to the concepts –

and we emphasise this:

of nationality and domicil –

So, the reasoning in Potter v Minahan at least proceeds from a conceptual premise which in terms – according to the Chief Justice – is anterior both to nationality and to domicil. Now, Potter v Minahan is not in the joint bundle but that passage is extracted in Singh at volume 9, page 3170, for those who prefer that medium.

Our second point to try and build up this analogy is, we submit that immigration and naturalisation are both processes or activities which are of their nature transitory in that they both look forward to a conclusion and it is the same conclusion – membership of a community, albeit that that concept has different inflection depending on the rubric that one is applying. That is our third point. Immigration and naturalisation both look forward to full membership to the community.

Our next point is we say that – and this is not by way of analogy – but we do say that a limit on the naturalisation power is necessary to avoid what would otherwise be discrimination between natural‑born and naturalised citizens. If there is no limit at all, then it seems to follow that there can be a second‑tier category of citizenship and there is inherent in naturalised citizenship a vulnerability to transmutation back into an alien which a natural‑born citizen does not have.

The next point we make in support of this analogy is to rely on the judgment of Justice Isaacs in Ex parte Walsh and Johnson. I have mentioned it before – it is a dissenting judgment. It propounds a maxim – “once an immigrant always an immigrant” – famously. In support of that maxim and in support of his Honour’s reasoning process, his Honour explicitly called on an analogy between immigration and naturalisation. He said, if there is a line – and this is volume 5, tab 41 – I am just going to get the Commonwealth Law Report reference, if your Honours bear with me.

EDELMAN J: It is 37 CLR.

MR HARTFORD DAVIS: Yes, it is 37 CLR 36, and at page 88 – page 87 of the Commonwealth Law Report, 1389 of the joint book, one sees the maxim:

“Once an immigrant always an immigrant.”

That seems to be our learned friends’ case in a way – once an alien, always an alien and naturalisation does not take one past that point. Also, on page 87, halfway through the page:

Whatever the Federal Parliament can do or permit, it can undo or recall.

His Honour cites as precedent for that, Meyer v Poynton. On page 88, at joint book, page 1390, at about line 22, his Honour says:

For naturalization – which is the passing from a state of alienage across the dividing frontier to a state of British nationality – substitute immigration – which is passing across the frontier of Australia from another country to this country. Substitute for the distinct and clear‑cut process of attaining the status of subject of the King, the indistinct and indefinite process of settling in Australia as a member of its people –

et cetera, and his Honour goes on. At the bottom of page 88, and over to the top of page 89 of the report:

If there exists any line of demarcation in principle which in this respect differentiates the alien power from the immigration power, it is too fine for my perception, except by means of a legal microscope more powerful than any I am able to command.

So, in effect, his Honour has, in a dissenting judgment, explicitly propounded the logic which we call in aid about the similarities between naturalisation and immigration – albeit that his Honour carries that reasoning to a conclusion in relation to immigration which the Court’s authority is against now.

May I focus the Court’s attention on paragraph 6(a) of our oral outline? I have already said enough about it and, in the interests of time, may I just provide a reference to the reasons of Justice Edelman in Alexander, at paragraph [211], with which Justice Steward agreed at paragraph [291]. Justice Edelman, of course, picked up on the dicta of Justice Williams in a case called Koon Wing Lau (1949) 80 CLR 533. In the interests of time, I will not go through it, but we do place emphasis upon what Justice Dixon said in that case.

GORDON J: What page?

MR HARTFORD DAVIS: It is page 1660 of volume 5.

GORDON J: Which page of the decision in Calwell do you rely on?

MR HARTFORD DAVIS: I am sorry, your Honour, I have the JBA page numbers here. I am just going to find the relevant ‑ ‑ ‑

GORDON J: That is all right, that will do.

MR HARTFORD DAVIS: Page 577.

GORDON J: Thank you.

MR HARTFORD DAVIS: Now, the statutory context of the case is particularly important, and I regret that I have not left enough time to expose it, but there was a question of construction about when a power could be exercised to deport an alien after the expiry of a certificate. The power was expressed using the language of “upon” – upon the expiry, then Parliament may deport, in effect. Justice Dixon construed “upon” to mean within a reasonable time after, but what his Honour says and what we rely upon at page 577 is that if – his Honour says:

If it –

that is, the provision:

left the person named in an expired or cancelled certificate of exemption liable for the rest of his life to expulsion –

that is, assuming against what his Honour holds, that it was limited by a requirement of reasonable time:

it might perhaps conflict with the principle for which reliance is placed upon the decisions mentioned, the principle that the immigration power will not support a law for the deportation of persons who have settled in Australia so as to have become members of the Australian community.

And we say that is, in substance, what section 34(2)(b)(ii) does: it makes a naturalised citizen liable, for the rest of his life, to expulsion. And so, for that reason, we say it exceeds what we contend is the limit.

EDELMAN J: Another way of putting that, though, if one thought about – back to your first ground of challenge, is really to say that this, the time limit factor by itself, if one were to draw an analogy with the immigration power, would be a factor that, because of its unlimited duration, by itself would establish the provision to be punitive in the sense that Lim talks about; and in the same way as in Lim, something detaining someone for a period of time that was not reasonably necessary would be punitive.

MR HARTFORD DAVIS: Yes. Yes, your Honour. Can I, at that point, return to a question that your Honour asked me that I said I wanted to reflect on? I think we have to accept that if your Honours find that the connection of necessity is established under Chapter III, then the head of power challenge will fail except in possibly two circumstances. The first is if the conjunctive/disjunctive point is resolved against us so that Chapter III is not even reached by a law of this kind, because it does not involve adjudication. And your Honours follow – I have not sought to rehash any of the points that were discussed, but if that point is decided against us, then I think this argument does arise.

Second, if it were to be held that – and I think your Honour Justice Steward, some of your Honour’s questions have gestured towards this. If it were to be held that denaturalisation of a citizen who was a British subject, for example, was not punishment, perhaps analogously to the reasoning in Falzon – although, of course, we do not accept the analogy – if it were to be held that denaturalisation of a British subject or a naturalised citizen was not punishment for some reason, then again, this head of power challenge might become relevant.

Subject to those points, if your Honours have found that the provision in its operation is necessary to the non‑punitive purpose, then we do accept it is difficult to conceive that it could, nonetheless, be found to exceed the limits that we propound and, for that matter, the appropriate and adapted test which applies, if we are correct, that the law is on the periphery of the power. Directing attention to paragraph 6(b) of the oral outline, we think we derive some support for a limitation in this form from the reasons of Justice Steward in Alexander at paragraph [291], where your Honour said:

Unconditional absorption in that respect is completion of the process of naturalisation for the purposes of s 51(xix).

When one has regard to Ex parte Henry and Koon Wing Lau, and the law that was being considered in that case, where Justice Williams used his reasonableness criterion, and when one has regard to the principle of absorption which underpins that criterion, it may be the two limitations that we propound in 6(a) and 6(b) are not very different.

EDELMAN J: Well, there may be a difference, but it is not this case. The difference may be someone who is granted an unconditional, permanent right to remain – but that does not arise in this case.

MR HARTFORD DAVIS: Yes, I accept that correction. Thank you, your Honour. Unless your Honours have any questions, I was proposing then to deal briefly with our last fallback, which is paragraph 8 of the oral outline, and I will do so relatively briefly. We submit that section 34(2)(b)(ii) falls within the incidental or ancillary aspect of section 51(xix) for four reasons. First, the criteria of operation of the power are inversely related to the subject‑matter of the power in the sense that section 34(2)(b)(ii) only operates upon persons who, by definition, are not aliens at the time the power is exercised, because they are naturalised citizens. And it only operates upon persons who have, by definition, completed the process of naturalisation, albeit, in saying “completed”, I do not necessarily use the sense of “absorption”.

GAGELER J: I thought that you had really conceded that if you lose your Chapter III challenge, then you have to lose this point as well.

MR HARTFORD DAVIS: Yes, I do concede that. The only reason I am dealing with it, and very briefly, is because of the possibilities that it may, nevertheless, be relevant because of the two circumstances I outlined. One is that your Honours might find that the Lim principle is not engaged unless it is adjudication and punishment. Two is that your Honours – or one or more of your Honours may find that naturalisation for breach of a condition is not “punishment”, and so, therefore, the necessity analysis is not engaged – but we do concede that if we lose on the “necessity” test, we will also lose on this argument.

GAGELER J: And all of the arguments that you have put in favour of this argument you have already put in your Chapter III argument.

MR HARTFORD DAVIS: Yes, I think – does your Honour mean that ‑ ‑ ‑

GAGELER J: The connection of reasonably “appropriate” and “adapted” will certainly exist if it is reasonably capable of being seen to be necessary for the purpose that you identified.

MR HARTFORD DAVIS: Yes, that is the point I concede. Yes. As I said, I will be very brief. The second reason why we say it is within the incidental aspect of the power is because there need be no causative relationship between the past offending and the naturalisation process itself.

Third, we say that the fact that our learned friends defend the power by reference to “purpose” is, itself, an indicator that it is at the periphery. In Cunliffe v Commonwealth 182 CLR 272 at 321, Justice Brennan described as:

a fact of constitutional reasoning that connexion between a law and a head of power is more frequently revealed by purpose than by effect and operation when the law is on the periphery –

and, last, we say for the reasons I have already developed, it is incidental because – or to the extent that it operates on absorbed persons. I do not propose to say anything more about it because, as your Honours pointed out, it may not arise.

Unless there is anything further, those are our submissions.

KIEFEL CJ: Yes, thank you. Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, the defendants propose to divide their oral arguments as follows. I will address your Honours on the scope of the power conferred by 51(xix) in the particular context of the revocation of citizenship and why 34(2)(b)(ii) is within that head of power. Ms Gordon will then address your Honours on the place of that provision within the statutory scheme and its legislative history and then, having regard to those matters, why that provision is a reasonable condition if your Honours think that the relevant inquiry and – or substantively, why the provision is compatible with Chapter III.

Before I come to any of that, though, can I start with a more fundamental issue that has emerged in respect of the way that our friends have developed their case orally. Your Honours have heard many submissions using phrases like “tailored” to the purpose, “necessary” to the non‑punitive purpose, “goes too far”. Those submissions are all, as was expressly conceded, directed to establishing that even though our friends admit that the purpose of 34(2)(b) is the purpose we assert – protective of the integrity of the naturalisation process – it goes too far. It goes further than it needs to go in pursuit of that admitted non‑punitive purpose.

I emphasise that because, in our submission, it goes nowhere for our friends to show that in the context of the two legal questions that are before your Honours, which is a Chapter III challenge and a head of power challenge. It goes nowhere because purpose is relevant in those contexts only in particular ways. It is relevant in a Chapter III context to test what is the true purpose of the law – and I will take your Honours to Falzon in a moment to make that good – and in a head of power context when one is dealing with a non‑purposive power like the aliens power. You need it only if you are in the incidental area of the power, and we are not.

So, in my submission, really, this case is resolved to something pretty simple, because once it be accepted that – as our friends concede – this provision is pursuing a non‑punitive purpose, their arguments about it going too far just do not – assume an overarching legal framework or a legal limit that they have not made good.

EDELMAN J: I think that mischaracterises their argument, because the analogy is with a case like Lim, where there might be an obvious and clear purpose of detaining someone for the purposes of deportation, but if they are detained for a period that is unreasonable or a period that goes beyond what is necessary for the purposes of detention, then the purpose becomes punitive. As I understand their submission, it is that you start with an undoubted protective purpose, but because it goes too far it has become a punitive purpose.

MR DONAGHUE: But, your Honour – I accept that that is how our friends put it against us in the particular context of – and they do seek to draw on Lim, just as was attempted in Falzon, which I will show your Honours in a minute. But they – in the context of detention, one has in the language now used in the Court, a default characterisation that the detention is punitive, and it is then necessary to displace that starting point. And if you cannot displace it by showing a law that is tailored – to use our friend’s language there – then the Court will say, well, you have not persuaded me that this law that you are seeking to justify as non‑punitive really is, and so the default characterisation remains. We do not have that starting point here, we have a – and also, we do not have ‑ ‑ ‑

EDELMAN J: Well, if stripping someone of citizenship – I realise there is a bit bound up in the “if” here – leads to a consequence of deportation, then that is a consequence that, in many, many jurisdictions, is regarded as far more severe than detention, at least detention for short periods of time.

MR DONAGHUE: But, your Honour, the time limit issue here has sort of crept into the case because of the facts particular to this particular plaintiff, but, of course, this is not a judicial review challenge of the reasonableness. If the provision is invalid, it was invalid – this provision was valid the day after the grant of – or the conviction that followed, or 10 years after, in my submission. Its purpose did not change because of the delay. In our submission, one has to characterise the law, and here, characterising the law, our friends have actually accepted it pursues a non‑punitive purpose, they have just overlaid a narrow tailoring requirement that the authorities deny.

Can I try to make that good by asking your Honours to go to Falzon (2018) 262 CLR 333, which is in volume 5, tab 42. The relevant part of the discussion is from paragraph 27 and following in a joint judgment of four members of the Court. You see at paragraph 27 a reference to Kruger where Justice Gummow was discussing Lim, and, in particular, the Lim requirement to which your Honour Justice Edelman just referred about whether:

detention and custody “are reasonably capable of being seen as necessary for a legitimate non‑punitive objective”.

In 28, the plaintiff tried to deploy that to bring in a proportionality‑type test, and in the last sentence, it said:

the question posed by Lim is quite different from that which arises in proportionality testing.

In 29 – I will not read you the whole paragraph – but the last three lines on page 343:

The enquiry is as to whether it is “necessary” to that purpose. If it is, it may be considered to be an incident of the executive power and will not ‑ ‑ ‑

GORDON J: Sorry, where are you reading, Mr Solicitor?

MR DONAGHUE: Sorry, your Honour, I am going too fast. The last three lines on page 343, paragraph 29, from the end of the third‑last line:

The enquiry is as to whether it is “necessary” to that purpose. If it is, it may be considered to be an incident of the executive power and will not be an exercise of judicial power. If the power goes further than to achieve that limited purpose it may be otherwise. In such circumstance, it may be inferred that the law has a purpose of its own, a purpose to effect punishment.

That is what we now call default characterisation, so, if the law goes too far, it will not displace the default characterisation. But proportionality‑type testing – reasonable necessity – is discussed in 30 as being different. Why? Because, for the reason given at 31, in proportionality analysis of constitutional guarantees, the freedoms:

are not absolute.

You can limit them, obviously, but only by proportionate laws. Then, looking about halfway down 31:

The test of reasonable necessity in proportionality analysis asks whether the legislative measure is necessary at all. Whether a legislative power of detention is necessary in the Ch III sense is an enquiry as to the true purpose of the law authorising detention, it is not an enquiry as to whether that law is necessary to the achievement of a relevant legislative purpose.

So, what our friends have done is they have made that error. They have taken what is an enquiry into the true purpose of the law and treated as an enquiry into whether the law goes further than is necessary for the purpose. As your Honours see in paragraph 32, the Court says that is wrong. Questions of that kind “cannot arise” in the Chapter III context.

The framework just has not been – the foundation for the argument has not been made good in the Chapter III context and it equally cannot be made good in the head of power context, unless our friends were to be right that this law is only incidentally connected to paragraph 51(xix). As to that, your Honours, we say this is a law in its terms about revoking a certificate of Australian citizenship. It could not be more directly connected to the naturalisation process – that is, right at the centre of the naturalisation process is the process of granting certificates of naturalisation and doing so on conditions.

EDELMAN J: If that is right, any revocation, really, for any reason, will be sufficiently connected to the power.

MR DONAGHUE: Any revocation of a certificate of naturalisation, yes.

EDELMAN J: Yes.

MR DONAGHUE: In my submission, it will be. If one could make good a Chapter III argument – if there was a punitive‑type law, as we have discussed in the other case – but there will not be a head of power problem. That is correct. Now, as I am ‑ ‑ ‑

EDELMAN J: Apart from Germany in 1935, are there any examples where such a broad approach has ever been taken to stripping of naturalisation?

MR DONAGHUE: Your Honour, I cannot answer that question as a matter of history. What I can say is that the answer that I just gave your Honour is part of our case, but part of our case that, in our submission, your Honours will not get to in this argument because, if your Honours could note our oral outline ‑ ‑ ‑

EDELMAN J: It would be a fairly remarkable construction of a provision that enabled, in a Constitution that did not expressly provide for citizenship but is concerned with a people of the Commonwealth that empowered the Executive Government to strip people of the Commonwealth of their rights of citizenship for any reason at all, simply because it had the power to grant them citizenship. We really are in the realm of Nazi laws.

GLEESON J: And blue‑eyed babies.

MR DONAGHUE: Your Honour, in my respectful submission, we are in the realm of blue‑eyed babies. We are in the realms of extreme examples which should not be used to ‑ ‑ ‑

EDELMAN J: It is very naive to think that democratic backsliding cannot occur even in very robust democracies.

MR DONAGHUE: Your Honour, that may be so but that does not undermine the force of the proposition that one does not construe the Constitution to prevent the democratic backsliding. One does not take the possible extreme use of the law and construe the head of power narrowly in light of the possible extreme use of the law. That is the point the Court is making when it says, do not construe by reference to the extreme examples.

GORDON J: That is not construing by reference to extreme. You are being asked whether that is the Commonwealth’s submission. The submission I have is that any revocation of certificate of naturalisation is sufficient – any power of revocation.

MR DONAGHUE: Your Honour, in our oral outline ‑ ‑ ‑

GORDON J: Sorry, Mr Solicitor, I asked a question. Is that the Commonwealth’s submission?

MR DONAGHUE: It is one of – that is an alternative submission.

GORDON J: Is it your primary submission?

MR DONAGHUE: No, it is not my primary submission. The reason that I said to Justice Edelman that you will not get there is your Honours see in our oral outline, three tiered submissions at paragraphs 5, 6 and 7, as to why, we say that this law is sufficiently connected. We submit that the first argument, at paragraph 5, wins the case. If we are right about that, then you do not need to get to paragraph 6 or 7.

GORDON J: Let us just take it in steps, can we? So, the first tier is on the basis that you have – the Commonwealth has power to grant naturalisation on condition.

MR DONAGHUE: Yes.

GORDON J: And where those conditions are breached, you have power to revoke?

MR DONAGHUE: Yes – and that is all you need. So, that is all we would expect your Honours would need to decide, is that if you can grant on conditions and the conditions are breached, then, obviously, the person does not get to keep the citizenship that was granted because that would defeat the whole purpose of imposing the conditions. So, that would be enough. We do make the alternative submissions in paragraph 6 and 7 – which you do not reach if you accept the primary submission.

Our friends, orally, this morning addressed the two alternatives in 6 and 7 and said nothing about the first – not a word – except, perhaps, to the extent that it was caught up in various exchanges with your Honours, but the first will be enough. The second and third, your Honours, I accept are considerably wider and for that reason your Honours would not get there unless you needed to, because you would be just ‑ ‑ ‑

STEWARD J: I know it is not your primary case, but just on that submission about the breadth of the power, assume for the moment that obviously the naturalisation power will include a power to impose conditions. Just assume that, put that aside. In Alexander, the Court talked about the power to strip citizenship where you repudiate. Is that the naturalisation power or the aliens power or something else? It would be odd if it was the naturalisation power.

MR DONAGHUE: It is the aliens power, in my submission. It is the first aspect of the aliens power. And I will put some structure to that answer.

STEWARD J: Or is aliens as well as the nationhood power that Justice McHugh referred to?

MR DONAGHUE: Your Honour, my submission is that the settled understanding of the aliens power includes, subject to Pochi, so subject to not treating as an alien someone who cannot possibly answer that description ‑ ‑ ‑

STEWARD J: Subject to Pochi – the famous qualification, yes.

MR DONAGHUE: Subject to that, it includes the power to decide who shall have and who shall not have the statutory status of Australian citizen. And that includes people who repudiate within that class. Repudiation obviously is not in play in this case, and so one looks at why we say the Pochi limit is not transgressed by section 34(2)(b) and the three answers that we give are the three answers given in paragraphs 5, 6 and 7 of our oral outline.

GORDON J: Can we just go through – we have done 2. Can we go to the third?

MR DONAGHUE: I am not sure I would agree, your Honour, that we have done 2. Because I have not - - -

GORDON J: No, no. I am just working out what the framework is at the moment. I am not dealing with them in substance. I am asking what the framework is. The third thing is that any dual citizen is subject to the risk of revocation. Is that the way it is put?

MR DONAGHUE: What we put, your Honour is – and your Honours have heard me put it before ‑ ‑ ‑

GORDON J: And it was rejected.

MR DONAGHUE: In my submission, it has never been rejected.

GORDON J: I see.

MR DONAGHUE: The Court has never needed to decide it, because it has always been able to decide on a narrower footing. But effectively, what this submission comes down to is asking your Honours to put two passages in the authorities which no one doubts, side by side. Perhaps the most convenient way to do that, because I will not need to come back to this third argument, is if your Honours have Alexander and could turn to paragraph [36] in Alexander, you will see there that on page 573 of the report, the Court sets out in a long block quote a very famous passage from Nolan in the joint judgment of six members of the Court. It says – I will not read the whole passage but from five lines down, the word:

the word –

“alien”:

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

So, that is what six judges say in Nolan. Then one looks at the Pochi passage.

EDELMAN J: Sorry, which paragraph is that?

MR DONAGHUE: Sorry, it is paragraph [36] in the right-hand column:

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

Then one sits the Pochi passage next to that, which says Parliament can “treat as an alien” anyone except if the person could not possibly answer the description on the ordinary understanding of the meaning. Now, we say, when you put those passages next to each other, it cannot be said that a foreign citizen cannot possibly answer the description of an alien on the ordinary understanding of the word, because six judges of the Court have said, on the ordinary understanding of the word, that is what an alien is. So, except as your Honours have put to me in many previous cases that that is a very wide power, and it would potentially expose many people to the loss of citizenship – I accept that that is true ‑ ‑ ‑

EDELMAN J: It is half the population, is it not?

MR DONAGHUE: But, your Honour, again that – the proposition that Parliament would ever exercise the power in that way is an extreme example.

EDELMAN J: Well, put aside “exercise”. The proposition becomes that potentially half the population are aliens.

MR DONAGHUE: No, it does not, your Honour, because no one is an alien while they are a citizen. But they become people who it would be open to Parliament to exercise the first aspect of the aliens power to ‑ ‑ ‑

EDELMAN J: But that can only be because they are within the reach of the aliens power under the Constitution. If they are within the reach of the aliens power – if they are not within the reach of that power, there is no power to legislate over them. If they are within the reach of that power we are talking about, on this approach, up to half the Australian population.

MR DONAGHUE: Your Honour, I have to answer that question by accepting that your Honour has expressed the view in various judgments that the jurisprudence of the Court has taken a wrong turn in this regard. But, in my submission, the settle understanding – and if your Honours still have Alexander, you see it at paragraph [33] – is that power – and this is Chetcuti as well – the power has two aspects. So, it has a power, the first aspect being to define “alien”, and then the second to legislate with respect to aliens. My submission is about the first aspect of the aliens power, not about the second. So, you cannot exercise the aliens power over most people in Australia to make laws about them other than to make laws defining their status.

Again, your Honours, in my submission, unless the limit is not the Pochi limit, we respectfully submit that the Court not just in Nolan but in Singh and in Ame, has attributed very great significance in identifying people who can be aliens to their foreign citizenship, and all we are doing is saying not that Parliament will exercise its power in this way, but that it could. So that it could, for example, pass a law that said to dual citizens, if you do not choose to revoke your foreign citizenship then 12 months from now your Australian citizenship will be revoked. It would be a democratically insane thing to do, but it would be within the power of the Parliament to do that because foreign citizenship is one of the available legal criteria.

Your Honours have taken me to the two wider submissions, but my submission is you never get there because this law is quite clearly a law that is not approaching those boundaries – any boundary of the power because it is just concerned with a naturalisation process and it is just concerned with people who at some point before they are granted a certificate – not just after they have applied, but any point before they are granted a certificate – have committed a serious criminal offence but they are not convicted of it until afterwards. All it is saying, in those circumstances, the condition subsequent analysis your Honour Justice Edelman has discussed with my friends, is that if – and as Ms Gordon will develop, this provision or its predecessor existed at the time he was granted citizenship.

So, from the moment that Mr Jones was granted citizenship it has been the law of Australia that that citizenship could be lost if he committed an offence at an earlier point in time from which he was subsequently convicted. All that happened is that the conviction came to pass, the condition subsequent was enlivened and his citizenship was removed. We are nowhere near the boundaries of the aliens power to give effect to a law of that kind.

Your Honours, I have traversed out of order a lot of ground there. I do not want to take your Honours back through territory with which you are extremely familiar, so can I just note that in paragraphs [33] and [34] of Alexander in particular, the plurality – with your Honour Justice Gageler agreeing – assemble quite a bit of the recent law about what I call and your Honours have called the “settled understanding”, which attributes constitutional significance to the statutory status of the citizen.

That, in my submission, is the prevailing authority of the Court and it means that status as an alien depends upon whether or not you hold the statutory status of a citizen, which can be granted or refused subject only, in our submission, to the Pochi limit. I will not take your Honours through the paragraphs, but ‑ ‑ ‑

EDELMAN J: What do you mean by “a citizen”? You do not mean just a piece of paper that refers to someone as being a citizen, like Mr Canavan had, being a British overseas citizen in Re Canavan. What precisely do you mean by this criterion of citizenship?

MR DONAGHUE: I mean the statutory status that Parliament calls citizenship, because the way that Parliament exercised its power to choose who is and who is not a member of the Australian political community is by granting that statutory status.

EDELMAN J: But that statutory status is more than the label; it is the content, surely. I mean, in Re Canavan, the label of “citizen” for the purpose of 44(i) was not enough to characterise a British overseas citizen as a citizen. It must be the content of citizenship that you are concerned with.

MR DONAGHUE: In my respectful submission, no, your Honour. Canavan was about the significance of the foreign citizenship for an Australian constitutional provision. Here, we are concerned with how one identifies Parliament’s choice as to membership or non‑membership. Your Honours have seen the Act has various different ways in which you can acquire that statutory status.

EDELMAN J: Let me put it – we might be at cross‑purposes, but let me put it differently. If the Act simply said a group of people can be recognised as citizens, but they will have no right to vote, no right to remain, no right to serve on juries, no welfare rights, that is not what you would mean by “a citizen”, would it? Just because Parliament decides to attach the label “citizen” to people with no rights.

MR DONAGHUE: Your Honour, we are going a very long way away from the law I am defending, but in my submission, what we actually care about, for the purposes of 51(xix), is not so much the content of citizenship but whether you are or are not an alien. It is the reciprocal ‑ ‑ ‑

EDELMAN J: Yes. But the reason I am asking you this is because you say that that meaning of “alien” has as its flipside the notion of “citizenship”, and I am just asking you what you mean by “citizenship” in order to become a non‑alien. What is the content of that term, if it is not just a label?

MR DONAGHUE: But the way the Court put it in Chetcuti was that the aliens power encompasses the power to determine who is and who is not to have the status of an alien and it does that by treating as aliens everyone who does not have the statutory label. Now, that, there might be – I can conceive of the possibility that, in a different case, you might have a debate about whether Parliament has properly exercised that power to characterise who is in or who is out.

But what matters, in my submission, is that as long as Parliament’s criteria for determining who is not within the class comply with Pochi, so, as long as Parliament’s criteria in selecting those who are excluded focuses on matters such as foreign citizenship, birth outside of Australia, foreign parents – matters of the kind that history would point to – then the exclusion of the statutory class is effective to identify aliens – and I do not need to get into the question of what rights you have to have if you were within the “citizen” basket.

EDELMAN J: The reason I am asking, it may not be adverse to your case here, but, I think, at least prior to 2021, Mr Jones still had rights to vote, rights to remain – perhaps various other rights. So, on one view, if one is looking at the substantive core content of citizenship, he may still have had the core of that content. What he did not have was welfare rights, or rights to serve on a jury, and so on.

MR DONAGHUE: I accept that that is so, and certainly – but he had a number of those rights as an alien visa‑holder – the right to vote, for example, as an alien visa‑holder rather than as a citizen. And what I am resisting, as I see it, is the difference between the view that your Honour favours and the view currently favoured by majority of the Court, is whether or not one is conducting an analysis that looks to the essential characteristics of an alien as a matter of substance and sets aside the statutory judgment. So, in my submission, what I am putting to your Honour is you cannot put aside the statutory judgment – that statutory judgment is what governs as long as it is consistent with Pochi – that is my submission.

My submission is certainly not that Mr Jones was an alien during the period that he was a citizen. Plainly, that is not the case. So, he went through a naturalisation process; he was granted Australian citizenship in 1988, and we accept that he remained a citizen and therefore a non-alien until July 2018, when his citizenship was cancelled. To say that – the plaintiff seems to attach quite some significance to that fact. He says, I had become an alien, and therefore, I was beyond the reach of the naturalisation power.

The problem with that submission, as we see it, is that to say that he was beyond the reach of the naturalisation power when the naturalisation was complete – and can I come back to whether it was complete because the condition subsequent may well have prevented it from being complete – but parking that issue for the moment, even if the naturalisation was process was complete, he cannot have been in a better position than any other Australian citizen.

I do not need to say he was in a worse position – I am not advocating for a second tier of Australian citizenship – but he cannot have been in a better position and, therefore, he remained a person subject to the first loss of citizenship pursuant to the first aspect of the aliens power on any grounds that anyone else could have lost citizenship – at least on those grounds. That is the explanation for our wider submissions; the second and third alternative submissions.

STEWARD J: Can I ask you a question which I do not think you will want to answer. Leave aside the condition point and whether the process was complete – park that aside again – in simple terms, why does Mr Jones not fall within the Pochi qualification? What is meant by the Pochi qualification?

MR DONAGHUE: The answer to your Honour is the three answers in 5, 6 and 7 – the first of which, and the one I urge your Honours to decide, means that I cannot entirely leave aside what your Honour asked me to leave aside because, here, our friends really need your Honours to treat Mr Jones as having been – to adopt some language here used by your Honours Justice Edelman and Steward in Alexander – “unconditionally absorbed” – or members of the community.

One really needs to ask, why was he unconditionally absorbed if, at the time that his naturalisation was granted, the Act already provided that if he had committed an offence before then and he was convicted afterwards, he would lose it. That condition, in our submission, was – there is no explanation given as to why that condition did not prevent the unconditional entry into the community that would be necessary to engage the analysis that your Honours adopted in Alexander.

STEWARD J: Your answer, then, is only for this case because he failed the conditions – he is not in the Pochi qualification.

MR DONAGHUE: Exactly.

STEWARD J: And you do not want to give any greater answer than that today?

MR DONAGHUE: So, I have given some wider answers, but I do not want your Honours to decide them because you do not need to, because, in my submission, if you cannot cancel the citizenship of someone who fails the conditions that were imposed upon that citizenship, then the whole notion of conditional grant of citizenship is meaningless.

GAGELER J: Mr Solicitor, I wonder if there is an even narrower way of putting your first argument and that is, rather than to edge it at the level of a condition subsequent and any condition subsequent to the grant of citizenship, you could be just looking – picking this language up from paragraph 13 – this is a condition, you might say, that has as its purpose the protection of the integrity of the process of naturalisation itself. So, perhaps, we do not need to go beyond a condition of that nature in this case.

MR DONAGHUE: Your Honour, I think that that is probably right. That submission to which your Honour has referred is a submission that we put to make the Chapter III argument.

GAGELER J: Of course.

MR DONAGHUE: But it is a subset of the wider proposition that I put as to power. And logically your Honour must be right that if my wider submission is right, the narrower submission would also be true, and your Honours probably do not need to go further.

EDELMAN J: But it would still be a condition subsequent. It would be ‑ ‑ ‑

MR DONAGHUE: It would be a particular kind ‑ ‑ ‑

EDELMAN J: ‑ ‑ ‑ a condition subsequent for that purpose of protection.

MR DONAGHUE: Yes. So, while I would say, yes, that is within power and, yes, that would be sufficient to uphold the validity of 34, the logic of my argument would support other conditions subsequent, but your Honours might say that is very nice, but I do not need to decide the logic of your argument.

GAGELER J: We might say it is not very nice, but we might still find some attraction in the narrow way of putting it.

MR DONAGHUE: In the narrow – that is true, and perhaps your Honours do not need to decide if it is nice or not.

GORDON J: In a sense, I think, the answer that is put against you, even on that narrow ground – either you take it on the narrow ground or the broader condition subsequent by what the plaintiff put in their reply about the purpose of section 34(2)(b)(ii). In other words, they saw it as a matter of construction.

I am putting this against you in a sense so you can answer it because I think it is the way it is put. If you look the last line of paragraph 10 of their reply, that when one is looking at the purpose, whether it is a Chapter III or a head of power question, the same question arises, and that is: is its purpose protection of a process of naturalisation itself, or is it because it, in its terms, is something which cannot be identified as having that purpose, because it goes further? “Goes further” is the wrong language, but it is directed at identifying it has a different purpose.

MR DONAGHUE: But that, your Honour, takes me back to where I started ‑ ‑ ‑

GORDON J: No, I know it does.

MR DONAGHUE: That is a different argument to say one goes too far.

GORDON J: Maybe not. It is a question about characterisation. One is looking at the legal operation and practical effect of this provision, and one is trying to work out what its purpose is within the scope of section 34.

MR DONAGHUE: Exactly but as I understood our friends’ oral submissions, they conceded that it was protective of the integrity ‑ ‑ ‑

GORDON J: I think they conceded section 34 was protective. I do not know they went so far as to 34(2)(b)(iii). I could be wrong. That is not the last ‑ ‑ ‑

MR DONAGHUE: In my submission, no. Their submission was that it pursued that purpose by means that were not necessary to the pursuit of that purpose.

GORDON J: That was one aspect of it, but the way I read their written submissions, at least, it is at least an argument that is put.

MR DONAGHUE: Your Honour, I suppose whether the point has been conceded or not is a matter for your Honours to decide. But even if I have to meet it, in my submission, one would not – and this is really something that Ms Gordon will develop in the Chapter III part of the case – but one would not characterise it as punitive. It has the purpose that we identified in the paragraph that Justice Gageler directed attention to in paragraph 13 – is our answer to that.

Your Honours, again, I do not think that I need to read to your Honours at length from what was recently written in Alexander, but can I remind your Honours that there is quite a detailed discussion from paragraph [35] and following, not just of the reach of 51(xix) generally, but its reach with respect to citizenship loss. It is there confirmed in a number of paragraphs immediately from [35] through to about [38].

There is a discussion of the power to remove the citizenship of somebody who has acquired Australian citizenship and the limit is identified in terms referrable to Pochi. So, you see that in [35], it is said in the last part of the paragraph – the Pochi limit is quoted in terms in the first part of the paragraph, and it said in the last part:

The Parliament has the power under s 51(xix) to attribute the constitutional status of alien to a person who has lost the statutory status of citizenship. By the same power, Parliament can define the circumstances in which that occurs.

That is, it can define the circumstances in which citizenship is lost. The footnotes there quote – sorry, it is in the next paragraph. Paragraph [36] repeats the point:

conditions on which such citizenship can be acquired and lost”.

Footnote 40 takes the Court to Te where – and I will not ask your Honours to go to Te now, but the passage cited, you can see, is paragraph 31. That is in the judgment of Chief Justice Gleeson in Te. His Honour says there that power:

to prescribe the conditions on which such citizenship may be acquired and lost –

is subject to one qualification. The one qualification is Pochi that his Honour identifies in that passage. In Nolan, in the quote that I have already directed your Honours to, if you look about two‑thirds of the way down the quote in Nolan, the Court expand the US definition:

to include a person who has ceased to be a citizen by . . . denaturalization.

So, their Honours are emphasising that that can happen. Paragraph [37] is again repeating that people who were previously citizens can cease to be citizens. At [38], there is the paragraph that has already been noted, where the Court emphasised that it had raised in argument, well, what was the source of your statutory citizenship, it was a statutory provision. The Court says:

As a general principle, where the Parliament may confer rights by the exercise of legislative power, it may also take them away.

Footnoting Kartinyeri, and in those page ranges of Kartinyeri, the Court cites many other cases to the same effect. So, it may have its origin in a dissenting – that phrase may have its origin in the dissenting judgment of Justice Isaacs and in Justice Starke’s judgment in Meyer v Poynton, but there are many, many times since then that the Court has endorsed that idea. The Court expresses it in paragraph [38] in the context of emphasising that the statute that grants citizenship is subject to that principle; the general principle that what Parliament may confer, it may take, which is our first alternative submission.

The other point just to note in Alexander is that there was an argument advanced at Alexander, recorded at paragraph [45], that one could denaturalise a citizen only if “substantial reasons” could be shown. That was an attempt to import some of the analysis from the Court in Roach, in the voting context, as a limit on the denaturalisation power. In paragraph [46], the plurality reject that and say there is no reason to add to Pochi.

I take your Honours to all of that because, here, the plaintiff does not really frame their case as engaging the Pochi limit. They say there are these other limits. You have only the four identifiable circumstances that they put in their written submissions, or they say there is an absorption principle, but one just does not see that at all expressed in the authorities summarised in Alexander or in Alexander itself as a new and unstated limit on the circumstances in which citizenship can be lost.

Instead of that, one sees in the case law a rejection of the idea that absorption is a relevant limit on 51(xix) as opposed to the immigration power. That was very famously rejected in Pochi, and I will not take your Honours – I had proposed to take your Honours to Pochi at some length, but I do not think that I need to do so. But could I perhaps, without taking your Honours there, just make this point: Pochi was a demurrer. The allegation in Pochi was that Mr Pochi had been “totally absorbed”, so the factual premise for Pochi was an acceptance that he had been “totally absorbed”. It was in that context that the Court rejected the argument, using the phrase “totally absorbed” in the critical passage on page 111, but reflective of the demurrer.

So, it is true that the argument there was a little different from the argument here, in the sense that Mr Jones, unlike Mr Pochi, had been naturalised, so he crossed into the category of Australian citizens through the statutory process. But, nevertheless, the plaintiff here is seeking to deploy absorption as a limit on the first aspect of the aliens power so that Parliament cannot decide – exercise that power with respect to a category of persons identified as those who are absorbed, although quite what criteria are being deployed for absorption is not clear, because your Honour Justice Steward said, you are not saying that if you have been absorbed for immigration purposes that that is the limit, and my friend said yes, but we never found out what it is additionally that one needs to take you into this category.

Can I ask your Honours to turn to Te, which is a more recent discussion by the court of absorption in the aliens power context. Te (2002) 212 CLR 162 is in volume 7, tab 63. There is quite a detailed analysis of absorption in Chief Justice Gleeson’s judgment, including at paragraph 26 where his Honour says the concept is “vague”, it has been deployed in the immigration context, but absorption, his Honour says four lines down in paragraph 26:

does not mean that the person has lost the status of an alien.

His Honour goes on to describe how many long‑term resident immigrants nevertheless remain aliens. In the second half of paragraph 26, his Honour sets out what is now described as the “settled understanding” of the aliens power, concluding with the observation that Parliament decides who gets formal membership”

“a common bond, involving reciprocal rights and obligations”, and the terms and conditions upon which such admission will take place.

At paragraph 31, his Honour refers to the “one qualification” on that, being Pochi, and says in the middle of that paragraph – so, subject to Pochi, Parliament can:

create and define the concept of Australian citizenship, to prescribe the conditions on which such citizenship may be acquired and lost –

and that “and lost” passage is picked up in the authorities in various places, including in Koroitamana. Then his Honour, at paragraph 42, says – about halfway down paragraph 42:

Treating absorption into the community as relevant to the status of alienage is inconsistent with earlier judicial views as to the width of par (xix) compared to par (xxvii), to which I have referred above. In my opinion, it is wrong in principle.

One sees something similar in Justice Kirby’s reasons at 204, which your Honours will see, again, at the end of his Honour’s reasons on page 219. His Honour says:

Nor would any conclusion that the applicants . . . had been absorbed into the Australian community so as to take them beyond the reach of the immigration power be sufficient to change in any way the legislative authority conferred on the Parliament in the applicants’ cases pursuant to the aliens power.

Justice Hayne’s judgment starts on the same page – and over the page, at 210, his Honour says:

Alienage is a status fixed by reference to descent and place –

I do not need to read that. Paragraph 211:

I do not accept that concepts of “absorption”, developed –

in the context of:

the immigration and emigration power – have a place in considering who is an alien.

There is rejection of alienage as relevant to 51(xix) in Justice McHugh’s reasons at 90, and Justice Gummow’s at 116 to 117, and Justice Gaudron at 55 to 59. So, no one in Te accepted that “absorption” was relevant.

So, in our submission, your Honours would very much be breaking new ground to accept that someone moves beyond the reach of the aliens power simply by virtue of some unspecified criteria, but seemingly involving long residence in Australia. But, again, if your Honours do not wish to go there, in my submission, you do not need to, because it would be sufficient to decide the case to say that where somebody’s citizenship is subject to conditions, that those conditions prevent their “absorption” in a way that would take them beyond the reach of the power. And, if your Honours were to form that view, then whether or not “absorption” has a role in this context, it would not apply to the benefit of Mr Jones.

Could your Honours pardon me for a moment while I think about whether there is anything else I need to get to. Can I conclude by covering off on one aspect of the plaintiff’s argument that I had passed over, which arises on a couple of contingencies. Your Honours will recall that that one aspect of our friends’ case is that they say there are only four circumstances in which citizenship can be lost and the fourth of those circumstances they identify as breach of a condition validly imposed on naturalisation, and they then take the third step that says that that condition must pass muster against a test of reasonableness, so that even though they accept, as I understand their case, that here there was a condition subsequent, they say it was an unreasonable condition subsequent. If there is a limit of that type, Ms Gordon’s submissions will address why this condition was reasonable.

My point is that it would be a startling proposition for the Court to be required to assess, against a completely unstated yardstick, the reasonableness or otherwise of such conditions as Parliament might see fit to impose upon a person who at this time, by hypothesis, is an alien. They have no right to enter the Australian community, and Parliament, in our submission, can identify such conditions as it sees fit and the alien can then decide will I or will I not accept those conditions as the price of membership of the Australian political community.

In our submission, while it might well be possible for a court to decide that particular conditions are not unreasonable, because it might just be that the conditions are obviously connected to things ‑ ‑ ‑

EDELMAN J: Is that really your submission that there is no limit to the conditions that can be put upon a grant of citizenship?

MR DONAGHUE: The submission is that there is no justiciable reasonableness limit on the conditions that can be put on a grant of ‑ ‑ ‑

EDELMAN J: So, a grant of citizenship subject to any condition at all is not justiciable?

MR DONAGHUE: Your Honour, what Chief Justice Griffith in Robtelmes v Brenan prescribed such conditions as it sees fit to prescribe on the conditions of membership. That was how his Honour framed it then and, in my submission, that was the correct framing of the situation. It is for Parliament to determine, subject to democratic accountability, what the criteria are for admission. And it is not at all apparent what criteria the Court would use in saying that a particular condition – again one, could perhaps go to extreme examples – but, in my submission, that does not really help in the analysis. There is no ‑ ‑ ‑

EDELMAN J: It is really just another way of putting your submission that once citizenship has been granted, it can always be stripped – because one could put a condition that is so broad on every grant of citizenship that would enable the Minister to strip citizenship in any particular circumstance.

MR DONAGHUE: Your Honour, I can see the force of the extreme example.

EDELMAN J: It need not be an extreme example. It could just be citizenship will always be granted provided the Minister continues to remain satisfied that the person is of good character – with good character expressed to be a matter, purely, for the determination of the Minister.

MR DONAGHUE: This is, in my respectful submission, the difficulty with the crafting of the extreme examples, because in your Honour’s analysis there, the Parliament obviously could not make the Minister’s judgment conclusive of the question. So, the Court would be able to come in as a section 75 limit and police, and because the Court would be able to do that, that condition may well, in my submission, be reasonable because you would have to have a proper understanding of good character and apply the meaning correctly and do so subject to Wednesbury unreasonableness, and otherwise.

So, if one had an example so extreme that said the Minister may, at any time and for any reason, withdraw your citizenship, then I would not be minded to try to defend that law. But I am not sure that, as I stand here, that that would be because of a reasonableness limit or a justiciable reasonableness limit. It may be that the law actually would not properly have the character as a conferral of citizenship.

EDELMAN J: It starts to come very close to it, though, because the reason that you would not seek to defend that broad law is because you could not imply the unreasonableness into it. If you had a provision that said that the Minister can remove citizenship for any reasonable reason, that might be very easily defensible. If you had a provision which said the Minister may remove citizenship for any reason, however unreasonable, that comes very close to the point that you are saying would be difficult to defend.

MR DONAGHUE: But that, your Honour, may well attract an analysis from the Court that said that that law does not actually grant you citizenship, what it grants you is so fragile or so infirm that it does not have the character of a law with respect to the grant of citizenship. So, it may be that that law would be infirm, but not for the reason, that, no matter what the condition – and, obviously, your Honour is testing my argument by the extreme – but, here, we are nowhere near the extreme – and it does not follow that where one has the range of plausible type conditions that a Parliament might impose, that a plaintiff can come to Court and say, well, even though I accepted the grant of citizenship on this condition, I want you now to say that the condition was unreasonable, according to some standard that I proffer. And, in my ‑ ‑ ‑

GORDON J: Is that to say anything more, though, that – was your answer, then, that, on the more extreme example given by Justice Edelman, that the law is not a law within a head of power, because it is not dealing with the central core meaning of what is “naturalisation”?

MR DONAGHUE: Well, I was floating – I was expressing the possibility that a law would fail for that reason ‑ ‑ ‑

GORDON J: Thank you.

MR DONAGHUE: ‑ ‑ ‑ that it would not have a connection to a head of power. That is right.

GAGELER J: The problem, if you leave the extreme examples aside – and you say you can attach any condition at all to the grant of Australian citizenship by a process of naturalisation – you can end up with two classes of citizens – absolute citizens and conditional citizens. It may be a little difficult to reconcile with the constitutional notion of “naturalization”, because you do not quite get there if it is conditional.

MR DONAGHUE: Your Honour, I would not accept that it results in two classes of citizen to say that there are different gateway requirements imposed on different classes of person to get within the one class of citizen – because that is already the case. So, there are criteria for people who need citizenship by grant or naturalisation that do not apply to people by birth. But, once you are in, the rights that are attached are equal. So, in my submission ‑ ‑ ‑

EDELMAN J: But we are talking here of conditions subsequent. So, the condition that is imposed is a condition that is imposed, by definition, once you are in, and the more rigid the condition subsequent, the more vulnerable the person will be to losing citizenship. The point Justice Gageler makes is reinforced, I think, by statements in Re Canavan that the Constitution does not contemplate a different treatment for naturalised citizens as opposed to natural‑born citizens.

MR DONAGHUE: I am not disputing that proposition, your Honour, but my submission is that that proposition is not inconsistent with what I understood to – and what, in my submission, should not to be the controversial proposition articulated in Robtelmes, that all sovereign States can admit such person to membership of their community as they choose and on such conditions as they may see fit to prescribe. That has not hitherto been regarded as a controversial claim.

GORDON J: But even if that is so, we are trying to work out what the limits are, and if there are limits. That is just to state the premise from which we started half an hour ago or 45 minutes ago.

MR DONAGHUE: If it be the starting point that an aspect of sovereignty usually is the power to control when people are not members, the conditions upon which they are able to become members, then your Honours are putting to me situations in which a court might want to identify boundaries. Part of the difficulty with answering hypotheticals of this kind is that we do not actually have any concrete boundaries to fix upon that would crystallise the argument and the articulation of the relevant principles, because the only concrete example we have is, in my submission, well within the limits.

So, I am trying as best I can to engage with your Honour’s questions about the power, but it is difficult to do so entirely in the abstract and, in my submission, there are evident difficulties that your Honours would confront with many potential kinds of conditions that Parliament might impose in assessing reasonableness.

Take, for example, if Parliament were to make the grant of citizenship conditional upon a person residing in regional Australia for three years before they move to any other part of the country. Is that condition reasonable or not, and how would your Honours assess the reasonableness of that condition? It would impose a restriction upon people seeking naturalisation that most Australian citizens are not subject to, but there might be very good reasons why Parliament would seek to do that, and the judgment is really a political one, not a judicial one.

GORDON J: There may be a better way, but one of the ways to answer that is to say, well, to meet the complaint or the criticism you end up with two categories. You have a second category for a limited period of time. In other words, there is a time limit attached to it which, in effect, deals with that very issue which you are addressing.

MR DONAGHUE: I would prefer your Honour not to call it a second class, but it is certainly a class – there would be restrictions upon people within the class that are not common to the group. But that, in my submission, is not inherently objectionable. When one talks of a single class of citizenship, differentiation based on rights to participate in the political community would, one imagines, be very hard to justify, but differences of the kind that I just identified may or may not be. Really, the point that I have been seeking to articulate is that, consistently with longstanding authority, one would not previously have thought that that was a – or prior to the plaintiff’s argument here, that the Court would need to be evaluating the reasonableness or otherwise.

Perhaps, to bring it back more to the concrete circumstance, in my submission, there is no criteria against which – our friends say, well, the problem with this provision is that it is not time‑limited. Were it to be time‑limited, should the time limit be one year, three years, five years, 10 years, 20 years? Against what possible legal yard stick could your Honours make that judgment? In my submission, that there is none, and it would just be to select a policy outcome to choose between those options. If the plaintiff is aware of the limit – sorry, if the limit exists at the time that the citizenship is granted, in my submission, it can be validly imposed.

I see the time, your Honours, and subject to any further questions, those are the submissions that I seek to make, before handing to Ms Gordon.

KIEFEL CJ: Yes, thank you, Mr Solicitor. The Court will adjourn until 2.15 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

KIEFEL CJ: Yes, Ms Gordon.

MS GORDON: May it please the Court. I pick up the defendants’ submissions at paragraph 10 of the oral outline, just to situate your Honours. My first task as advertised is to spend some time on statutory context and some historical matters. By reason of the submissions and dialogue that has already taken place this morning, I am going to keep that as focused as possible because I think quite a lot of the ground has been covered.

In particular, your Honours have already been taken to the provisions in the current Act and the Act at the time at which Mr Jones was conferred with citizenship, but I would just like to emphasise a number of points which we do wish to make about the statutory scheme. One of the really important matters is the connection between the subject matter of section 34(2)(b)(ii) and the general eligibility requirement of good character. That is an eligibility requirement that applied in the 1948 Act as it stood at the time of Mr Jones’ grant of citizenship. That was in section 13(1). I should clarify that it was more than a relevant consideration; it was a mandatory eligibility requirement. And your Honours will also see that in the current Citizenship Act of section 24(1)(a).

The reason we emphasise the connection is because it is irrelevant to submissions we make later about purpose. But we say that when one looks at the connection between section 34(2)(b)(ii) and the character requirements, one sees the provision issue in this case referencing picking up a criterion that was critical that was necessary in order to obtain a grant of citizenship.

Good character is not defined in the Act, but case law provides significant guidance on that concept. We have given your Honours a reference to a case which, itself, discusses some of the key case law. That is BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39, at 46 to 53, and that is volume 11 of the joint book, at tab 78. I will not take your Honours to that case, but the critical point we make about that – and not unsurprisingly – a person’s criminal record is highly relevant to an assessment of good character.

Then, if I could just come and emphasise aspects of the current provision – just the architecture of that provision, so that your Honours have actually been taken to that. If your Honours go to section 34(2) of the current Act ‑ ‑ ‑

EDELMAN J: Just so I understand, although we are going to 34(2), the actual provision under which he was granted citizenship was in the 1985 reprint that we have.

MS GORDON: It was in the 1948 Act as amended, and there are some transitional provisions set out in possibly footnote 8 of our written submissions that mean that when section 34(2)(b)(ii) refers to “offences”, those offences are understood as picking up the offences to which the equivalent provision referred in the earlier Act. Footnote 8 was correct. And really, the only point of taking your Honours here was to make the points that one looks at 34(2), and your Honours will already be aware that that is applying to a particular type of naturalisation referred to in the heading as Citizenship by conferral. Then we see a number of matters that may enliven a power of revocation in (b). Here, we are concerned with (ii).

GAGELER J: I am sorry, were you saying – does footnote 8 mean that we read subsection (5) differently in relation to the plaintiff?

MS GORDON: Yes. Let me be more specific. Section 6(3) at Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007, which your Honours will find at volume 2, tab 9 specifies that section 34(2)(b)(ii) of the Citizenship Act applies as if it referred to the person’s conviction at any time after the person made the application for citizenship under the old Act of an offence referred to in section 21(1)(a)(ii) of the old Act. Does that answer your Honour’s question?

KIEFEL CJ: So, it is the offences in the old Act which are picked up?

MS GORDON: Precisely, but it is very similar formulation.

KIEFEL CJ: Yes.

GAGELER J: So, it is not a “serious offence” within the meaning of subsection (5)? I will work it out; it is okay.

MS GORDON: Yes, I will stand to be corrected, but I understand that your Honour is broadly correct, that then it takes one to the old Act.

GORDON J: Is that in terms of structure, because we are talking about the architecture, to ensure that the condition that was imposed at the time of grant continues?

MS GORDON: Yes, your Honour. Mr Moretti might be – another way of expressing that would be to say that there continues to be a mechanism to enforce the condition that applied at the time of grant, but I am not sure there is any real conceptual difference.

Now, turning then to matters of history, again I wish to be as short as I can on this, but what we wish to emphasise about the history of naturalisation legislation is that – in Australia, that is – that there has been a good character criterion for persons becoming Australian nationals for at least a century and there has, for the same period, always been a revocation power, though the contents and breadth of that power has varied over time and for most of that period Parliament has conferred a power to revoke the status of persons subsequently convicted of criminal offences but which were committed before conferral.

EDELMAN J: Is the breadth of the power now as broad as it has ever been, or were there periods in history where the power was broader than it currently is, to revoke?

MS GORDON: No, there were certainly periods where it was broader and in fact the provision considered in Meyer v Poynton would be an example of a broader power.

EDELMAN J: Yes.

MS GORDON: That power was located in the Naturalization Act as amended in 1917 and I was not proposing to take your Honours back to that. But I was just going to draw your Honours’ attention to the Nationality Act 1920, which is volume 3, tab 14. I think your Honours were taken to this yesterday for a different purpose. I just wanted to draw your Honours’ attention to section 7(1) of the 1920 Act and in particular subsection (b) – and you will see that section 7 provides that:

The Governor‑General may grant a certificate of naturalization to an alien who makes an application for the purpose, and satisfies the Governor‑General –

relevantly:

that he is of good character –

And it goes on to say:

and has an adequate knowledge of the English language –

which is something that is picked up in later statutes as well. Then, the other provision that I wish to refer your Honours to was section 12 – and this is the revocation power. In particular, if your Honours have a look at 12(2):

Without prejudice to the foregoing provisions the Governor‑General shall by order revoke a certificate of naturalization granted by him in any case in which he is satisfied the person to whom the certificate was granted either –

and then the provision we rely on was (c):

was not of good character at the date of the grant of the certificate –

GORDON J: What do we do about (b)?

MS GORDON: Subsection (b) is a different kind of condition to the one that we are dealing with here and it is not something that really speaks ‑ ‑ ‑

GORDON J: So, this is a condition post – for conduct post‑grant of naturalisation.

MS GORDON: Precisely.

GORDON J: For a limited period.

MS GORDON: Yes, exactly, your Honour. Justice Edelman, your Honour will see there, a power of revocation which is expressed in broader terms but which, evidently, is a precursor to the narrower provision one sees in the current legislation.

EDELMAN J: Presumably it is protective in the same way, though, because the five‑year post‑grant provision would almost always be referring to conduct that had occurred prior to grant – in (2)(b).

MS GORDON: Quite so, your Honour. The only point I was seeking to make in response to Justice Gordon’s question was that, whether or not that is so – and it is not expressly so limited – but that the provision we were really placing emphasis on here was subsection (c):

was not of good character at the date of the grant –

because that places us squarely in the territory with which this case is concerned. Then, if your Honours see the very last sentence in section 12, one sees an additional hurdle:

and that (in any case) the continuance of the certificate is not conducive to the public good.

There one finds a precursor to the kind of provision one sees in 34(2)(c), where not only must a person be within 34(2)(b)(ii), but there is an additional hurdle that the decision‑maker must also be satisfied that the public good requires revocation.

EDELMAN J: Is section 12(2)(c) the provision that was – or was it identical to the provision that was considered in Meyer, or is it different?

MS GORDON: No, it is a narrower, your Honour, I think, because in Meyer v Poynton it was – if we go back to it – but, yes, it was just revocation if revocation was perceived to be in the public good. I am just checking the precise words for your Honour. Yes, the words considered in Meyer v Poynton were:

the Governor‑General was satisfied that it was desirable –

for any reason that a certificate of naturalisation should be revoked.

EDELMAN J: But that was a wartime regulation, then?

MS GORDON: It was a law made in 1917, so during the war. Then, just to continue with a brief survey of the history, I will not take your Honours to it, but when first enacted, the Nationality and Citizenship Act 1948 was almost identical to the 1920 Act on the points to which I have just taken your Honour, and for later reference, it is at volume 3, tab 15 of the joint bundle. Then, in 1958, the 1948 Act was amended by the Nationality and Citizenship Act 1958. Again, I do not need to take your Honours to this, but it is at volume 3, tab 16, and that made the following relevant changes.

It introduced section 50 in the 1948 Act, which made it an offence for a person for a purpose in relation to the Act to make a knowingly false representation or conceal a material circumstance – and that is, indeed, still very much the content of section 50. It significantly narrowed the basis upon which revocation could be achieved. And then one has a period of about 25 years, after the 1958 amendments, where one has a much narrower provision for revocation. But the, in 1984 one sees the introduction of the almost identical provisions to the ones at issue here. You have already been taken to those this morning, because those were the provisions in play, at the time Mr Jones’ citizenship was conferred.

Now, I did want to take your Honours to the second reading speech for the Bill that became the Australian Citizenship Amendment Act 1984, which explains the introduction of the relevant provisions. And you will find that second reading speech at tab 113 of volume 14. The passage which I wish to highlight – I think your Honours only have one page, in any event, of the Hansard, but if you look at the left-hand column, about the middle of the page, that says:

In the case of a person obtaining Australian citizenship by fraud, deceit, the concealment of information or any other dishonest means, the Minister will have discretion to deprive that person of citizenship.

KIEFEL CJ: Who is speaking, Ms Gordon?

MS GORDON: It is the Minister introducing it and I – I will find the precise details, but it is – apologies, it is not on the document. I can tell your Honours it was the Minister for Immigration and Ethnic Affairs, but I just do not have the name. Importantly, the Minister goes on to say:

This discretion also extends to a person convicted of a major offence committed, but not known about, before that grant of citizenship. I stress that deprivation of Australian citizenship could only occur for offences committed before the grant of citizenship. Moreover, it will occur only if the responsible Minister, after careful consideration of all the facts, is satisfied that it is in the public interest for a person not to remain an Australian citizen. The law will not allow a person to be deprived of citizenship if it has been obtained properly and honestly.

And the name of the Minister, Chief Justice, was Stewart West.

KIEFEL CJ: Thank you.

STEWARD J: I am sorry, I misheard that. Could you repeat the name?

MS GORDON: Yes, it was Stewart West.

STEWARD J: Stewart West. Thank you.

MS GORDON: In my submission, your Honour, that statement in the second reading speech confirms what one would infer from the text of the provision and the context of the provision that the provision is one of a number of provisions designed to protect the integrity of the naturalisation process.

I will turn, now, your Honours, to address why, in our submission, section 34(2)(b)(ii) is a reasonable condition on naturalisation, and one that is not punitive. What I propose to do is really focus on the arguments summarised in paragraph 3 of the plaintiff’s outline of oral argument, which we understood from this morning’s submissions were really arguments that went both to reasonableness of condition and whether it ought to be characterised as punitive. Before I go to addressing those arguments, I would just like to make some overarching submissions.

In our submission, the mischief to which the provision in question is directed is the gap created by the possibility of criminal conduct occurring before the grant but not known about at the time of grant; conduct clearly relevant to the good character criterion of eligibility. In our submission, the provision ensures that accidents of timing do not allow decisions about the conferral of citizenship to be made irrevocably on incorrect, incomplete information, and also ensures that there is not a perverse incentive for persons to conceal their criminal conduct or rush to secure citizenship before it is revealed, safe in the knowledge that once obtained, Australian citizenship cannot be taken away.

I have already addressed – partly by reference to text, partly by reference to history – why we say the non‑punitive and protective purpose is evident. I will also submit that – or draw the Court’s attention that there is nothing in this scheme like the policy statement in section 34A of the Citizenship Act, which was so significant to the Court’s reasoning in Alexander. And to the extent one has an explicit statement of purpose, it is the purpose to which I just took your Honours in the second reading speech. Nothing in that was suggestive of a punitive purpose.

If I could make our general submission another way, to illustrate the point, it would clearly not be punitive to refuse to grant citizenship to a person who did not pass the character test at the time of application because they had been convicted of a sexual offence, committed on date X. If the same offence were committed on the same date but Australian authorities were not aware of that, the conviction does not occur until after the grant of citizenship, it is no more punitive to reverse the grant than it was to refuse it on the very same basis. The timing at which the Executive becomes aware of the conduct cannot transform the purpose into a punitive one.

EDELMAN J: Is there a tension between the breadth of section 34(2)(b)(ii) and the decision that Justice Gordon referred to this morning in Roach, in that the majority in Roach took the view that to deprive persons who were serving sentences of imprisonment of fewer than three years of the right to vote was something that would be contrary to implications, and the franchise supporting the Constitution, yet the effect of 34(2)(b)(ii) is to permit over an indefinite period someone not to be merely deprived of – the possibility they will not merely be deprived of the right to vote, but deprived of all civic rights.

MS GORDON: If I have remembered Roach correctly, your Honour, the difficulty there was that there had been no sentence period selected – and I will stand to be corrected – but the criterion was simply that a person be in prison. That was, in a sense, the flaw in Roach because there was no selection of a criterion that could be the basis of a judgment of seriousness.

EDELMAN J: I think the prior criterion was three years, and that was removed.

MS GORDON: It was, your Honour. I think their Honours quite expressly refrained from committing themselves to a proposition that three years was a minimum in that concept. I think, in particular, if your Honours look at the judgment of Chief Justice Gleeson, there is a very careful analysis of why the failure to select any minimum period was the problem, because it meant that such a wide category of person could be caught by it without any relevant justification, if I can put it that way, whereas here we have the selection of a serious offence defined by reference to a term of imprisonment. Granted, it is less than three years but, as I say, your Honours, I am confident that three years was not a touchstone embraced in Roach.

EDELMAN J: Yes.

MS GORDON: The next overarching point before coming to the particular arguments I wish to make was that laws of a similar nature are a feature of the citizenship legislation of many countries, and we have given your Honours examples in our submissions at paragraph 51. I will not take your Honours to them, but what I did want to mention is the point that arose earlier this morning that courts in the United States have grappled with the question of whether denaturalisation laws should be characterised as punitive and have concluded that they should not – and I did want to take your Honours briefly to the case of Trop v Dulles with which you are familiar for other reasons. That is at volume 13, tab 102.

That, as your Honours are aware, was a case concerned with the loss of citizenship. The point I wish to make is just a small one which relates to a comparison Chief Justice Warren made between the deprivation that was held to be invalid in that case, and denationalisation. If your Honours turn to page 98 of the decision, your Honours will see, about two-thirds down the page, a sentence beginning:

Denaturalization is not imposed to penalize the alien for having falsified his application for citizenship; if it were, it would be a punishment. Rather, it is imposed in the exercise of the power to make rules for the naturalization of aliens.

That was a paragraph picked up by your Honour Justice Gordon in Alexander. The relevant reference is [173] to [174] of your Honour’s judgement in Alexander, where your Honour said:

a law conferring power on the Minister to cancel a person’s citizenship if they obtained citizenship by making false statements or engaging in fraudulent conduct, denaturalisation might be properly characterised as the consequence of breaching a condition imposed on the person’s entry into the community, rather than punishment.

At footnotes 93 to 96 of our written submissions, we have given your Honours reference to a number of appellate judgments applying that reasoning. There was a particular example I was proposing to take the Court to, which is the case of Kairys, volume 13, tab 103. I may not need to, because Mr Hartford Davis already mentioned this case this morning and, in fact, mentioned the key passage on which we rely. In particular, at page 1382 of the judgment, Chief Justice Cummings says:

the purpose of the denaturalization statute is not to punish citizens, but to protect the integrity of the naturalization process.

Mr Hartford Davis said two things about our reliance on that case which I did need to make some submissions on. The first thing, if I noted it correctly, was that in a sense, this was a critical authority for our purposes.
We did want to emphasise that this case is not the linchpin. We rely on the textual, contextual and historical matters to which I have referred. Secondly, he submitted that one needed to be very careful about Kairys because the particular terms of the denaturalisation statute considered there were much narrower, and that is what I wanted to address.

Now, at issue in that case, your Honours, was a ground of denaturalisation found in section 1451(a) of the relevant statute – the “illegally procured” ground of denaturalisation. I just really wanted to draw your Honours’ attention to the fact that that is not as narrow as it might appear on the face of the statute. Critically, authorities in the United States established that citizenship will have been “illegally procured” if the person questioned did not satisfy the eligibility criteria at the time of grant.

So, it is not analogous or limited to fraud on the process, or anything in that nature; it squarely picks up citizenship that has been procured where the person did not satisfy the eligibility criteria. Those criteria include that a person be of good moral character.

EDELMAN J: They have to have effected the decision – that is my understanding of the decision in the Supreme Court in Mazlenjak (2017) 137 S. Ct. 1918.

MS GORDON: They have to have effected the decision, your Honour?

EDELMAN J: The decision as to whether or not to grant citizenship.

MS GORDON: There has to be a causal link?

EDELMAN J: Yes.

MS GORDON: Yes. I will just have that case checked. Putting that to one side at the moment, the key matter that I wish to draw out was that concept of illegal procurement picks up non‑satisfaction of eligibility. Could I give your Honours a reference to the Fedorenko case, which is in the joint bundle, volume 13, tab 97.

KIEFEL CJ: I am sorry, what tab?

MS GORDON: Tab 97. If your Honours go to page 506, you will find yourselves in the opinion of Justice Marshall, giving the opinion of the court. Your Honours will see there, a quarter way down the page:

At the same time, our cases have also recognized that there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply with any of these conditions renders the certificate of citizenship “illegally procured,” and naturalization that is unlawfully procured can be set aside.

I would like also just to note two references, your Honour, which are not in the joint bundle, but which established the point that non‑eligibility extends to circumstances where one has not satisfied the moral character prerequisite by reference to past criminal conduct. I will give your Honours the references, but not take you to them. There is – I am just going to read you the abbreviation, because I realised I am not entirely sure what the precise citation is – but it is United States v Bogacki (2012) F. Supp. 2d 1288, at 1292; and then United States v Vilchis Rojas 2021 WL 1784803. That, really, your Honour, was to answer the point made against us that there was limited use one could make of the characterisation of denaturalisation in Kairys because it was a different context. All I was seeking to elaborate there was it was relevantly similar.

Your Honours, I propose now to turn to the particular arguments put against us as to why, despite the matters to which I have taken your Honours, section 34(2)(b)(ii) is unreasonable or ought to be characterised as punitive, and do so by reference to the subparagraphs at paragraph 3 of the outline of oral argument. The first argument put against us is that the discretion in 34(2)(c) and the matters to be considered in its exercise are overbroad and would permit the discretion to be exercised for punitive purposes. You recall that – and it is important to bear in mind that the requirement in 34(2)(c) is an additional hurdle and, we say, beneficial – requires that:

the Minister is satisfied that it would be contrary to the public interest for the person to remain –

in Australia. In our submission, the imposition of this additional hurdle, which is to the benefit of the affected person, simply cannot logically detract – or render, rather – render section 34(2)(b)(ii) punitive. As your Honour Justice Gordon pointed out, it is 34(2)(b)(ii) that it is an issue. Really, what the additional hurdle in subsection (c) reflects is a legislative judgment that the objective of protecting naturalisation may be a nuanced exercise, and ought not to be pursued at any cost, given the harshness of the consequences.

STEWARD J: Ms Gordon, do you say the word “may” in (2) does confer a discretion or is merely an empowering word? In other words, would the Minister have a discretion not to cancel citizenship if (b)(ii) is satisfied and he or she was also satisfied that would be contrary to public interest?

MS GORDON: Could I come back to that question, your Honour?

STEWARD J: Yes, of course.

MS GORDON: Just to finish the point about subsection (c) – in fact, I think I had finished it, but of course – and I will come to this in a moment – in fact, I will come to it now, because the next argument is in (b) of the oral outline, is the absence of any time limit on the use of the power, which is said to break:

the connection of necessity between the measure and the identified purpose –

The Solicitor-General has already made submissions on proportionality and necessity, sort of, testing at this level, and I will not go back to that, but really address the substance. One needs to bear in mind that there are a number of possible time limits at issue here. The oral submissions of the plaintiff focus on time between the conviction and executive action. Initially, as we understood it, the plaintiff focused on the time until conviction. And, of course, there is a very good reason why section 34(2)(b)(ii) would not, and cannot, put a time limit, and that is because it may take many years and it will be unpredictable as to when criminal offences are detected and convicted.

KIEFEL CJ: The limit it does apply is that the offence must be committed before the grant of citizenship.

MS GORDON: Precisely, your Honour. Of course, the plaintiff complains about another time period, which is the time period between conviction and executive action under the provision. Of course, because of the point I have just made about the time to conviction, that would not, in any event, impose an outer limit.

Our second response, of course, is that the passage of time and any significance that ought be attributed to that, is the very thing – not the very thing, one of the things that can be taken into account when one is under the rubric of assessing what the public interest requires as at the date of the decision. Additionally, I would note there that the decision is amendable to merits review and judicial review.

Now, the next argument put against us is that the protective purpose attributed by the defendants is amply pursued by other provisions, each of which is confined in terms to cases of fraud, concealment and dishonesty. Our response to that, your Honours, is that really the premise of this argument is that only fraud, dishonesty and concealment are legitimate bases, which is not a submission that finds any principled bases. What section 34(2)(b)(ii) is addressing is the gap to which I have already referred, it was discussed this morning and as your Honour the Chief Justice said, they are really concerned with different matters.

That fact, that they are concerned with different matters, does not assist the plaintiff to characterise the provision as punitive or unreasonable. The next argument put against us is that section 34(2)(b)(ii) is qualitatively different to section 34(2)(b)(i), (iii) to (iv) is reinforced by the fact that section 34(3) only applies in section 34(2)(b)(ii) cases. Just a reminder, your Honours, section 34(3) is the provision that provides that:

the Minister must not decide under subsection (2) to revoke a person’s Australian citizenship if:

(a)the Minister may revoke the person’s Australian citizenship under that subsection only because of the application of subparagraph (2)(b)(ii); and –

and this is the critical bit:

(b)the Minister is satisfied that the person would, if the Minister were to revoke the person’s Australian citizenship, become a person who is not a national or citizen of any country.

Now, in our submission, the explanation – and it is an explanation that is posited by the plaintiff for this limitation that applies specifically to this provision, and that is the Convention on the Reduction of Statelessness, which restricts the circumstances in which a person can be rendered stateless, which circumstances do not include the kinds of circumstances addressed by section 34(2)(b)(ii). Far from suggesting a punitive purpose, there is an obvious and reasonable explanation.

The next argument put against us is that the power in section 34(2)(b)(ii) exists only for one category, of naturalised citizens by conferral and not for others. Your Honours, this is a reference to the fact that section 34 has a subsection (1) and subsection (1) deals with power of revocation in the context of people who have obtained citizenship by descent or have been adopted and, in our submission, this really goes nowhere. The fact that the Parliament has adopted a policy of having different criteria for different categories ‑ ‑ ‑

KIEFEL CJ: For different circumstances.

MS GORDON: Yes, your Honour. To take the point one step further, tell us nothing about punitive and nothing about unreasonableness or reasonableness. Now, the last argument put against us is that section 34(2)(b)(ii) is shown to go further than is necessary for the protective purpose by the fact that, alone amongst all the powers conferred by section 34, it lacks criteria directly to connect the citizen’s offending to some irregularity in the process of naturalisation.

Our response to that is that is just not right. That was the reason for emphasising the connection, which has been a connection that has existed over many years, between this revocation power and the good character requirement – they are evidently connected.

If you will excuse me a moment, your Honours. Apologies, your Honours, I was just making sure I had an answer to your Honour Justice Steward’s question about whether the “may” in the chapeau – so 34(2) – is really a “may”. Technically, yes, a discretion, but we cannot as we stand here think of a circumstance in which it would arise. It is a little difficult to assess in the abstract for your Honours, so that explains my hesitation.

If there are not further questions, your Honours, those are my submissions.

KIEFEL CJ: Thank you, Ms Gordon. Do you have anything in reply, Mr Hartford Davis?

MR HARTFORD DAVIS: Yes, very briefly, your Honour. I just wish to correct. I did not intend to concede – if I did – I did not intend to concede that the true purpose of the law was non‑punitive or protective. Perhaps I misspoke, but in my dialogue with your Honour Justice Gordon I thought I conceded that the protection of the integrity of the naturalisation process was a legitimate non‑punitive purpose and that other provisions in section 34 might be set to pursue that purpose. But very much our submission is that section 34(2)(b)(ii) – that it is not its purpose, once the proper characterisation exercise is done.

KIEFEL CJ: What do you say to the submission that much of what is contained in your paragraph 3 under the broad description of it goes further than reasonably necessary involves a proportionality-type analysis? That would seem to be so in relation to (b), (c), (d) and (f), I would think.

MR HARTFORD DAVIS: It is obviously not intended by us to be that, and we say that it is, in this area of the law, a routine attempt to characterise the operation of the power in order to discern its true purpose.

KIEFEL CJ: You would agree that anything in the nature of proportionality testing would not be appropriate.

MR HARTFORD DAVIS: Yes. That is established in Falzon. It was put against us that we had not said a word about the first defence of this measure under the aliens power in paragraph 5 of our learned friends’ oral outline. I just thought I should clarify that. We accept that breach of a valid condition subsequent, it is a sufficient basis to treat a naturalised citizen as an alien. And so, the whole burden of our argument is to try to establish limits on the power to impose conditions. So, in a sense, everything I was saying about the implied limits was directed to that paragraph 5.

We resist the submission that there is something wrong with reasonableness as a justiciable criterion. It is a criterion applied regularly in justiciable controversies, specifically where limiting, or implying a limit on the exercise of a statutory or contractual power, and that is exactly what the ratio of Koon Wing Lau (1949) 80 CLR 533 at 573 to 574, where Justice Dixon construed “upon” as meaning “after” and “within a reasonable time” of. It is perhaps no coincidence that Justice Williams’ articulation of reasonableness as an outer limit on the power was also proffered in that case in connected with that construction exercise about what the word “upon” meant.

May I then come to the more detailed arguments. Issue is joined relatively clearly, and I do not need to rehash anything, but I did just want to make one point about the legislative materials which pertain to the power in question; it is something I intended to deal with in‑chief but did not get to. We have provided your Honours with the Hansard of 6 May 1982. It is one of the additional materials that we handed up. This goes to a matter which is at the core of our characterisation of this provision, which is the lack of a connection between the conduct of the citizen and any problem with the naturalisation process itself.

In the Hansard, if your Honours have it, at page 2361 – this is 6 May 1982 – and the context of this is that there was a model Bill for the amendments, which were enacted subsequently. The model Bill was read into the Hansard, and your Honours can see that at page 2363. Relevantly, on 2363, right‑hand column, there is clause 10, dealing with deprivation. That clause was discussed by the Minister, Mr MacPhee ‑ ‑ ‑

KIEFEL CJ: This is not properly a reply submission, is it?

MR HARTFORD DAVIS: It is. Well – I hope it is not unfair in the sense ‑ ‑ ‑

KIEFEL CJ: You did not deal with it in‑chief and it has not been responded to.

MR HARTFORD DAVIS: Your Honour, it goes to the extrinsic material bearing upon the purpose of the Act.

KIEFEL CJ: That does not qualify it as a reply submission.

MR HARTFORD DAVIS: In my respectful submission, it is, but if that is your Honour’s view, I will not press it.

KIEFEL CJ: If it is critical to your argument, you would have to allow the defendant to respond.

MR HARTFORD DAVIS: I, of course, would consent to that, if ‑ ‑ ‑

KIEFEL CJ: And how long would it take?

MR HARTFORD DAVIS: Two minutes, no longer.

KIEFEL CJ: Very well.

MR HARTFORD DAVIS: Page 2361, in the left‑hand column, there is a justification offered for the deprivation power. At the bottom of the last paragraph:

Deprivation of Australian citizenship under such a proposed amendment –

this is referring to the power which became and is now 34(2)(b)(ii):

would not constitute an additional penalty to that imposed by a court on the conviction of the person concerned. The deprivation powers should be invoked only if an applicant has obtained citizenship by false pretences –

We say the law does not bear that – that is not the law’s true purpose, because it does not actually have any criterion which requires consideration of whether citizenship was obtained by, as it is put, “false pretences”.

That is all we wish to say in reply.

GORDON J: Can I ask one question about that? What about the preceding paragraph? Does that alter the analysis?

MR HARTFORD DAVIS: The preceding paragraph is dealing with the – your Honours see in the first few lines of it:

there has been some debate about the notion that Australian citizenship might be lost if persons are convicted of various offences committed after a grant of citizenship.

It is for that reason we think that what has been called a five‑year good behaviour bond was removed. That was taken up with Ms Gordon, and she said, and we accept, it is in a different class. It is, in effect, the good behaviour bond for five years, a limited period, breach of which results in withdrawal. So, this is, in effect, the justification for removing that type of condition subsequent, but in the last four lines of that paragraph, it picks up:

There is a case, however, for depriving . . . if he or she has committed a serious offence before the grant –

And that is what leads to the passage that I wish to draw your Honours’ attention. Unless there is anything further, those are our reply submissions.

KIEFEL CJ: Thank you. Mr Solicitor, is there anything you wish to add?

MR DONAGHUE: No, your Honour.

KIEFEL CJ: Yes. Thank you, Mr Hartford Davis.

GAGELER J: Before the Court adjourns, there is something that cannot go unsaid. It has been publicly known for some time that the Chief Justice will retire from office on 5 November. What has not been publicly known until now is that this is the last occasion on which her Honour is scheduled to preside in a substantive hearing of the Full Court before that date.

The momentousness of the occasion is to be appreciated in the context of her Honour having served as Chief Justice for six years, as a member of this Court for 16 years, and as a member of the Australian judiciary for a total of 30 years. I am authorised by other members of the Court to say that we are honoured to share this occasion with her. We will miss her firm and gracious presence.

KIEFEL CJ: I thank Justice Gageler and my colleagues for those kind words. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.

AT 3.12 PM THE MATTER WAS ADJOURNED

[2023] HCATrans 85

Key Legal Topics

Areas of Law

Constitutional Law

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Standing

Procedural Fairness

Natural Justice