Kenny v Minister for Immigration, Local Government and Ethnic Affairs

Re: PETER JOSEPH KENNY
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Nos. SG48 of 1992 and SG22 of 1993
FED No. 305
Number of pages - 22
Constitutional Law
(1993) 115 ALR 75
(1993) 42 FCR 330
(1993) 30 ALD 796 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Gummow J(1)

CATCHWORDS

Constitutional Law - powers of the Parliament with respect to "aliens" and "external affairs" - Irish citizen settles in Australia in 1946 - then is British subject - whether he later is an "alien" - whether law with respect to his re-entry into Australia a law with respect to external affairs.

Migration Act 1958 s. 14

Australian Citizenship Act 1948

Pochi v Macphee (1982) 151 CLR 101

Nolan v Minister of State for Immigration and Ethnic Affairs (1988) 165 CLR 178

Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 110 ALR 97

HEARING

ADELAIDE, 23-25 March and 10 May 1993

#DATE 14:5:1993

Counsel and solicitors Robyn Layton QC and
for the applicant: Andrew Collett instructed by

Johnston Withers

Counsel and solicitors Dennis Rose QC and
for the respondent: Sashi Singh instructed by

Australian Government Solicitor

ORDER

Matter Nos. SG48 and SG22 of 1992

The Court orders:

That the application be dismissed.

Note: Settlement and entry of orders is dealt with by Rule 36 of the Federal Court Rules.

JUDGE1

Introduction

GUMMOW J These are 2 applications for an order of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The first (SG48 of 1992) seeks review of a decision made on 30 June 1992. A delegate of the respondent refused to grant to the applicant, Mr P.J. Kenny, an extended eligibility (family) entry permit ("EETEP (family) permit"). The second (SG22 of 1993) seeks review of a decision made 12 January 1993. A delegate then refused a second application for an EETEP (family) permit. This had been made on 29 September 1992, on the basis of a prescribed change in circumstances. On 25 March 1993, I ordered that the further hearing of both matters stand over to 10 May 1993 and gave directions for the giving of notices under s. 78B of the Judiciary Act 1903 ("the Judiciary Act").

Section 33 of the Migration Act 1958 ("the Migration Act") provides that regulations made under s. 181 thereof may make provision for different classes of entry permits and for the criteria for the grant of such permits. Sub-section 34 (4) is as follows:

"34 (4) Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit."

The criteria in relation to an EETEP (family) permit are prescribed by regs. 42 and 127 of the Migration Regulations ("the Regulations").
Mr Kenny re-entered Australia on 30 October 1991. On 20 October he had been granted a temporary entry permit, which was valid for 6 months. His present wife and 2 infant daughters entered Australia on 10 December 1991. The 2 infants were born in Ireland in 1986 and 1990 respectively. They held visitors entry permits which expired on 30 April 1992. The first application for an EETEP (family) permit was made by Mr Kenny on 8 April 1992.
The primary grounds stated in the applications for the orders of review are that the decisions in question involved an error of law. It is contended that Mr Kenny had not required a valid entry permit to enter this country, nor one to stay here after the expiration of the 6 months' temporary permit, and that he was not an illegal entrant at the time he made the applications for an EETEP (family) on 8 April and 29 September 1992.
Section 14 of the Migration Act provides:

"14 (1) On entering Australia, a non-citizen becomes an illegal entrant unless:

(a) he or she is the holder of a valid entry permit; or

(b) the entry was authorised by section 17. . . .

14 (3) A non-citizen who is the holder of a valid entry permit becomes an illegal entrant if he or she stops being the holder of a valid entry permit while he or she is in Australia."

(Section 14 was previously inserted as s. 6 by the Migration Legislation Amendment Act 1989; the term "non-citizen" had been introduced into s. 6 in its initial form by the Migration Amendment Act 1983).

An illegal entrant is liable to deportation; ss. 59, 60.
The prescribed change in circumstances, within the meaning of ss. 36 and 37 of the Migration Act and reg. 40, was said to be that Mr Kenny was an aged parent who satisfied the "balance of family test" as defined in reg. 3 as it stood at the date of the second application, 29 September 1992. However, the delegate found that only 2 of Mr Kenny's 5 children were lawfully and permanently resident in Australia. He rejected the contention that a third child had left New Zealand to settle here, and that this was a relevant changed circumstance because it meant the majority of his children were lawfully and permanently resident here.
Regulation 3, as in force at the relevant date, had come into operation on 17 February 1992 (see SR 418 of 1991). It stated:

"3. (1) For the purposes of these Regulations, a person who is a parent is taken to satisfy the balance of family test if the number of the children of the person who are lawfully and permanently resident in Australia:

(a) is not fewer than the total number resident overseas; or

(b) is greater than the number resident in a single overseas country.

(2) A reference to children in subregulation (1) includes a reference to children of a spouse or former spouse, or adopted children, of the parent but is not a reference to:

(a) children removed by court order, by adoption or by operation of law (other than in consequence of marriage) from the excusive custody of the parent; or

(b) children resident in a country where the children suffer persecution or abuse of human rights and it is not possible to reunite the children and the parent in another country; or

(c) children who are:

(i) resident in a refugee camp operated by the United Nations High Commissioner for Refugees or by the government of Hong Kong; and

(ii) registered by the Commissioner as refugees.

(3) For the purposes of this regulation, children whose whereabouts are unknown are taken to be resident in the usual country of residence of the relevant parent."

In addition to seeking orders of review on the ground of error of law, by amended applications filed in Court on 10 May 1993 the applicant seeks declaratory relief in each proceeding. The declaration sought is that as a matter of the legislative competence of the Parliament, s. 14 of the Migration Act was inapplicable to him when he re-entered Australia on 30 October 1991, and that he is not an illegal entrant who is liable to deportation. It is within the jurisdiction of this Court to entertain a claim of this nature, which involves a question involving the interpretation of the Constitution, when it is associated with a matter in respect of which there is an express investment of federal jurisdiction; see s. 8 of the ADJR Act, and O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 306-7.
Section 51 of the Constitution confers power upon the Parliament, subject to the Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to:

". . .

(xix) Naturalization and aliens: . . .

(xxvii) Immigration and emigration: . . .

(xxxix) External affairs: . . ."

The immediate legal effect of sub-s. 14 (3) of the Migration Act is to classify as an illegal entrant, with the disabilities which the statute attaches to that status, "a non-citizen" who, whilst in Australia, stops being the holder of a valid entry permit under the legislation. The term "non-citizen" is defined in sub-s. 4 (1) as meaning "a person who is not an Australian citizen". Australian citizenship, pursuant to the Australian Citizenship Act 1948 ("the Citizenship Act") is a status acquired by birth, adoption or descent, or by grant pursuant to s. 13 of the Citizenship Act.
The applicant, Mr Kenny, is not an Australian citizen. Therefore, it is said against him that:

(a) As a non-citizen sub-s. 14 (3) of the Migration Act now applies to him (his temporary entry permit having expired).

(b) In that application the sub-section is a law with respect to aliens, within the meaning of para. 51 (xix) of the Constitution. (Mr Kenny disputes that the law validly applies to him in this way. His contention is that the evidence establishes, as a constitutional fact, that when he returned to Australia on 30 October 1991 and when the 6 months' visitor's visa expired, he was not an alien).

(c) The validity of s. 14 also is supported by para. (xxix), as a law with respect to external affairs.

Any reliance upon the immigration power, para. (xxvii), was disclaimed. The necessary notices under s. 78B of the Judiciary Act have been given.

The Facts
15. It is then necessary to turn to the facts. They reveal a striking set of circumstances. They also underline what might be thought to be a significant (and to some an unfortunate and unfair) gap in the regime established by the Migration Act and the Regulations. This gap is pointed to in the statement of reasons under s. 13 of the ADJR Act, dated 6 October 1992. In para. 13 thereof it is said that there is no provision within the Migration Act or the Regulations to enable the grant of an EETEP, based on any former period of residence in Australia whilst that person was legally in this country. Here, that period was nearly 40 years. Were it not for what one suspects is an oversight in the planning of the legislative scheme, the occasion for this litigation may not have arisen.

Mr Kenny first entered Australia in 1946. He was then serving with the Royal Australian Navy ("the RAN") He arrived in Sydney on Australian landing ship LST 3017 the "Tarakan". He had volunteered to serve in the RAN and had commenced his service on this ship at Trincomalee, in what was then Ceylon, on 20 June 1946. The "Tarakan" sailed from Ceylon to Singapore, then to Darwin, Townsville and arrived in Sydney on 5 September 1946. Mr Kenny was discharged in Sydney on 5 September 1946 for the shore base HMAS Penguin at Balmoral. He remained with the RAN until 11 November 1946, when he was discharged to Class A Reserve. Before volunteering to serve with the RAN, Mr Kenny had served in the Royal Navy. He had enlisted at Belfast on 15 April 1945. His service had taken him on the aircraft carrier, the HMS "Queen", to Trincomalee. Whilst in Australia and serving with the RAN, Mr Kenny, in company with other British ratings who had volunteered in Ceylon, took an oath of allegiance to the Commonwealth of Australia and the King. The oath was administered by a Chief Petty Officer.
At the time when Mr Kenny arrived in Australia the Immigration Act 1901 ("the 1901 Act") excepted from the restrictions upon immigration into the Commonwealth imposed by sub-s. 3 (1), members of the King's regular land or sea forces. The present system which uses non-citizenship as the discrimen for the control of entry into Australia was not then in force. As I have indicated, this was introduced by s. 6 of the Migration Amendment Act 1983. That section commenced on 2 April 1984.
Mr Kenny was born on 29 November 1923 at Athlone, County Roscommon in what was then the Irish Free State. The Irish Free State Constitution had come into force on 6 December 1922. He was the legitimate son of John and Kate Kenny. His father also had been born in Athlone at, of course, a time before the partition of Ireland. Mr Kenny lived in the Irish Free State until 15 April 1945 when, at Belfast, as I have indicated, he enlisted in the Royal Navy. Upon enlisting, he swore an oath of allegiance to King George VI. On 1 August 1945 he married. His wife later joined him in Australia. They were divorced in 1967.
Upon his discharge from the RAN on 11 November 1946, Mr Kenny remained in Sydney with the intention (which he realised) to make his home here. His wife joined him in Australia early in 1947. They resided here until they separated in 1966. There are 3 children of the marriage, all daughters, born in 1948, 1949 and 1954. The eldest is married with 2 children and lives at Parramatta in New South Wales. The second daughter also is married. She lives at Innisfail in Queensland. The youngest daughter, Mrs Sargent, lived in Australia until approximately 1980. She moved to New Zealand when she married and had 2 children. She was in Australia between 15 September and 2 October 1992. The delegate found, as I have said, that it had not been established that Mrs Sargent was permanently resident in Australia.
In the period between his discharge from the RAN and 1983, Mr Kenny lived and worked in Australia, living and working in New South Wales, generally in the occupation of fitter and turner. He voted in all State and federal elections between 1946 and 1983. He paid income tax to the Australian authorities each year after 1946.
During his war service he had not received any passport. In 1980, he was issued with an Irish passport by the Irish Embassy in Australia. He had been told by the Australian authorities that it would take 6 weeks for the issue of an Australian passport, whereas the Irish Embassy had told him they would issue him with an Irish passport in a week. He sought the passport in 1980 because he wished to return to Ireland to visit a brother who apparently was seriously ill. The brother recovered and it was not necessary for Mr Kenny then to leave this country and use the passport.
After his divorce in 1967, Mr Kenny remarried, in 1969, in Sydney. He and his second wife were divorced in 1973, in Australia. In May 1983, Mr Kenny travelled extensively in South East Asia, having left his personal belongings with his daughter in Queensland. He returned to Darwin in May 1984. He married his third and present wife on Thursday Island in July 1984. Mrs Kenny holds an Irish passport. As I have indicated there are 2 children of the marriage.
In December 1984, Mr Kenny, whilst visiting his daughter in New Zealand, decided to return to visit his family in Ireland for the first time in many years. He left Australia on 8 December 1984. Whilst in Ireland, in May 1987, he attempted to clarify his citizenship and resident status in Australia with the Australian Embassy in Dublin. Eventually he returned to Australia and, as I have indicated, he arrived here on 30 October 1991. This was the first occasion Mr Kenny had been in Australia since 8 December 1984. His wife and children arrived several weeks later. On 23 January 1992, Mr Kenny applied for Australian citizenship but the application was rejected. He had previously been refused citizenship on 25 July 1984 for failure to meet the then "residential requirement" of the citizenship legislation, because he had broken the continuity of his residence here. I refer later to para. 12 (1) (b) of the Nationality and Citizenship Act 1948 (as the Citizenship Act was then entitled).
It is submitted for Mr Kenny that:

(a) when he first arrived in Australia in 1946, he was a British subject and therefore not an alien within the meaning of the constitutional head of power;

(b) he had settled in Australia and become absorbed in the Australian community before the establishment of a separate Australian citizenship by the Nationality and Citizenship Act 1948; and

(c) he was not an alien on 2 April 1984, nor on 1 May, 1987, at the times of the coming into force respectively of the Migration Amendment Act 1983 (which changed the basis of the migration legislation so as to deal with "non-citizens" rather than "immigrants") and the Australian Citizenship Amendment Act 1984 (which removed from the 1948 legislation, inter alia, the provisions which treated Irish citizens as non-aliens).

(d) The apparently adverse decision in Nolan v Minister of State for Immigration and Ethnic Affairs (1988) 165 CLR 178, is distinguishable because the appellant in that case was born in the United Kingdom in 1957, that is to say after the creation by the 1948 legislation of a separate United Kingdom citizenship.

(e) The effect of s. 14 of the Migration Act was to deprive him "retrospectively" of a non-alien status which he had enjoyed on entry into Australia in 1946 as a British subject.

It was also pointed out that in the Migration Act as it originally stood, s. 6 provided that an "immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant", and that the form now taken by s. 14 reflects this ancestry by repeating the phrase "on entering Australia", albeit in speaking now of non-citizens.
Counsel for Mr Kenny referred to decisions such as Potter v Minahan (1908) 7 CLR 277 at 286, where it was said that the term "immigration" as used in the Constitution did not mean mere physical entry but entry with an intention to settle or at least to stay in Australia. It followed, so it was submitted, that as a matter of construction s. 14 did not apply to a person in the position of Mr Kenny because he was not "entering Australia" as an immigrant, having already made his home here. It was further submitted that this construction indicated that s. 14 was properly to be characterised as a law not with respect to non-citizens but as a law, if anything, with respect to immigration.
I accept the contrary submissions for the respondent that the recasting of the legislation so as no longer to pin its operation upon the activities of immigrants, brings with it the consequence that the phrase "entering Australia" has lost any colour which it previously may have had by reason of its association with the term "immigrant". I accept that the phrase "on entering Australia" should be given its ordinary and natural meaning.
In order to evaluate the above submissions (a)-(e), it is necessary first, in some detail, to consider some aspects of the common law and of British, Australian and Irish statute law.

Aliens at common law and in the Australian Colonies
29. The common law rule in force at the commencement of the Constitution was that every person was either a British subject or an alien: Re Ho (1975) 24 FLR 305 at 309. British subjects were those born as such or who later acquired that status. The class of those who were natural born British subjects primarily contained individuals born within the dominions of the Crown. The position of those born in a British Protectorate or British protected State was obscure: Re Ho supra at 307. There was limited provision for the acquisition at birth of the status of British subject, not by place of birth, but by descent: Thomas v Acklam (1824) 2 B and C 779 at 794-5, 107 ER 572 at 578, Kent, "Commentaries on American Law", 1827, vol II, pp 43-4.

A person born of alien parents in enemy territory conquered and occupied in the course of war by British forces was not ipso facto a natural born British subject. The occupation of the territory was insufficient unless followed by a cession with transfer of sovereignty: Wong Man On v The Commonwealth (1952) 86 CLR 125 at 130-133. Where sovereignty was acquired in this way, the inhabitants of the territory, once received under the protection of the Crown, became British subjects: Halsbury, "Laws of England", 1st ed, 1107, vol 1, p 313.
Otherwise, at common law an alien might be relieved of many of the disabilities attaching to that status by the issue of letters of denization, this being a "high and incommunicable branch" of the prerogative: Blackstone's Commentaries, 1765, vol 1, pp 361-2. The text of the standard form used for letters of denization from the time of Queen Elizabeth I until the 19th century appears in Fourdrin v Gowdey (1834) 3 My and K 383 at 383-5, 40 ER 146 at 146-7.

At common law, naturalisation could be achieved only by statute: Pochi v Macphee (1982) 151 CLR 101 at 111. Naturalisation was effected by private Acts of Parliament (Halsbury supra p 315) and there was also the special class of foreign royalty naturalised at birth by force of the Princess Sophia Naturalisation Act 1705, 4 Anne c. 4; see Attorney-General v Prince Ernst Augustus of Hanover (1957) AC 436. The granting of naturalisation was put on a modern statutory footing in the United Kingdom by the Naturalisation Act 1870 (Imp).
The fundamental proposition is that the term "alien" identified a person who was not, by one or other of these means, a subject of the British Crown. It should also be noted that as late as 1944 the Crown was still spoken of in Australia as being indivisible throughout the Empire: Minister for Works for Western Australia v Gulson (1944) 69 CLR 338 at 356-7.
In The Attorney-General for the Commonwealth v Ah Sheung (1906) 4 CLR 949 at 951, Griffith CJ, speaking for the High Court, said:

"We are not disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality . . ."

More recently, in Nolan v Minister of State for Immigration and Ethnic Affairs (1988) supra at 183-4, in the joint judgment of six members of the High Court it was said:

"The word (alien) could not, however, properly have been used in 1900 to identify the status of a British subject vis-a-vis one of the Australian or other colonies of the British Empire for the reason that those colonies were not, at that time, independent nations with a distinct citizenship of their own. At that time, no subject of the British Crown was an alien within any part of the British Empire. Even after federation, Australia did not immediately enjoy the international status of an independent nation. The terms 'British subject' and 'subject of the Queen' were essentially synonymous. The British Empire continued to consist of one sovereign State and its colonial and other dependencies with the result that there was no need to modify either the perception of an indivisible Imperial Crown or the doctrine that, under the common law, no subject of the Queen was an alien in any part of Her Majesty's dominions . . ."

This view of matters is reflected by the definition in s. 3 of the Naturalisation Act 1920 of "British subject" as meaning "a natural-born British subject or a naturalized person".
On the other hand, before Federation, there was, in various of the Australian colonies, local legislation by which aliens might become naturalised as British subjects. There was, however, some uncertainty as to the effect of such naturalisation, in particular as to whether the status conferred was territorial in nature; see, for example, the discussion of the expression "Victorian subject of the King" used, in relation to the Alien Statute 1865 (Vic), by Cussen J in Ah Sheung v Lindberg (1906) VLR 323 at 329-330. Further, the colonial legislatures took the view they might restrict what otherwise would have been freedom of intercourse and movement between the various constituent elements of the Empire, by enacting immigration legislation which discriminated against certain categories of British subjects. Such legislation initially met with resistance by the Imperial authorities, as is discussed by Professor W.G. McMinn in "A Constitutional History of Australia", 1979, at pp 89-90. Nevertheless, the placing in the hands of the Parliament of the Commonwealth of a power with respect to immigration and emigration (para. 51 (xxvii)) was done with the avowed purpose of conferring a power of exclusion of British subjects not born or naturalised in Australia; see The King v Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518 at 557-565, per Isaacs J.
This then was the setting at the beginning of this century in which the expression "Naturalization and aliens" appeared in the Constitution.

Pre 1948 Legislation
39. With the enactment of the Naturalisation Act 1903, the right to issue certificates of naturalisation in the Commonwealth was exclusively vested in the federal authorities, to the exclusion of the States; see s. 13. The question of the extra-territorial effect, within the Empire, of such naturalisations, was put at rest by The British Nationality and Status of Aliens Act 1914 (Imp), Part II. Section 9 thereof provided for the adoption of the Imperial legislation by the self-governing dominions, and Australia did so in Part III of the Nationality Act 1920, s. 17.

In the meantime, and as one of its first steps, the Parliament of the Commonwealth had enacted the Immigration Restriction Act 1901, para. 3 (a) of which established the "dictation test" which might be applied to immigrants who, subject to exceptions, were British subjects. Section 26 of the Imperial Act of 1914, the British Nationality and Status of Aliens Act, provided in sub-ss. (1) and (2):

"26 (1) Nothing in this Act shall take away or abridge any power vested in, or exercisable by, the Legislature or Government of any British Possession, or affect the operation of any law at present in force which has been passed in exercise of such a power, or prevent any such Legislature or Government from treating differently different classes of British subjects.

(2) All laws, statutes and ordinances made by the Legislature of a British Possession for imparting to any person any of the privileges of naturalization to be enjoyed by him within the limits of that Possession, shall, within those limits, have the authority of law."

It is apparent from sub-s. 26 (3) that the Dominions were included in the expression "British Possession".
There, matters essentially rested until the 1948 legislation. The need for that legislation was made apparent by the enactment in 1946 of Canadian legislation which created a distinct "Canadian citizenship"; see the discussion by Professor E.C.S. Wade, "British Nationality Act 1948" (1948) 3rd Series, 30 Journal of Comparative Legislation, 67 at 68, and by Mr J Mervyn Jones, "British Nationality Act 1948" (1948) British Year Book of International Law, 158 at 159. As the latter author points out (at 160) the result of the new legislative scheme was that "British subjects, instead of being ascertained by reference to a common code, will simply be the sum-total of the citizens of all the Commonwealth countries".

Divestment of Allegiance
43. The "stern rule" of the common law was that a natural born subject could not divest himself of that status by his own unilateral act: Kent, supra at 35-43. However, a British subject could become an alien by loss of territory of the British Crown. This could come about (a) by severance of the Crown from the territory in which the British subject had been born by reason of the laws of succession being different in the two countries, e.g. the United Kingdom and Hanover, with the result that the person in question ceased to be a British subject and became a subject of the ruler who succeeded in the sovereignty of the territory in which he had been born; see In re The Stepney Election Petition, Isaacson v Durant (1886) 17 QBD 54 at 59-60; discussed by Gaudron J in Nolan v Minister of State for Immigration and Ethnic Affairs supra at 192-3; or (b) by statute recognising the sovereignty of a foreign sovereign in relation to the territory in question. The treaty made with the United States of America in 1783 was authorised by British statute (22 Geo. III c. 46), and subsequently accepted by later legislation; see Thomas v Acklam supra and Auchmuty v Mulcaster (1826) 5 B and C 770, 108 ER 287.

It is unnecessary to consider whether without the support of statute the Crown might alienate British territory by treaty not following close of a war; see "Halsbury's Laws of England", 1st ed, 1907, vol 1, pp 316-7. As is there pointed out, specific regulation might be made in respect of the future allegiance of the inhabitants of the ceded territory, but in the absence of such provision, the relinquishment of the government of the territory gave up not only the right to the soil, but also sovereign rights over the inhabitants of the territory.
It was uncertain whether, at common law, the effect of cession of a territory was the relinquishment of the allegiance of those British subjects who were born in the territory, or who were ordinarily resident there at the time of the cession, or who were at that time domiciled there, irrespective of birth or residence; see the discussion by Mr F.A. Mann, "The Effect of Changes of Sovereignty upon Nationality" (1942) 5 M L Rev 218 at 223-4.

The Irish Situation
46. The complex operation of the Irish legislation as to nationality is discussed by Professor R.F.V. Heuston in "British Nationality and Irish Citizenship" (1950) 26 International Affairs 77 at 81-90. The learned author makes the point that whilst the 1948 legislation, for example, ss. 5, 8, 9, 12 of the Nationality and Citizenship Act 1948, used the expression "an Irish citizen", this presented an issue of foreign law and the complexities of the topic in Ireland were by no means clear to those preparing the legislation.

The steps taken by the Irish legislature (the Oireachtas) after the passage of the Statute of Westminster 1931 (Imp) were summarised as follows by Sir Ivor Jennings "Constitutional Laws of the Commonwealth", Vol 1, 1957, pp 146-7:

(i) The Constitution (Removal of Oath) Act, 1933, abolished the oath of allegiance prescribed by the Irish Act setting up the Constitution of the Irish Free State, and authorized the Oireachtas to amend that Constitution contrary to the terms of the Scheduled 'Treaty'.

(ii) The Constitution (Amendment No. 22) Act, 1933, abolished the jurisdiction of the Privy Council.

(iii) The Irish Nationality and Citizenship Act, 1935, defined who were Irish citizens and, in effect, enacted that they were not to be British subjects.

(iv) The Executive Authority (External Relations) Act, 1936, dealt with the relations with the Crown in the following terms: 'It is hereby declared and enacted that, so long as Saorstat Eireann is associated with the following nations, that is to say, Australia, Canada, Great Britain, New Zealand, and South Africa, and so long as the King recognized by those nations as the symbol of their co-operation continues to act on behalf of each of those nations (on the advice of the several Governments thereof), for the purposes of the appointment of diplomatic and consular representatives and the conclusion of international-agreements, the King so recognized may, and is hereby authorized to, act on behalf of Saorstat Eireann for the like purposes as and when advised by the Executive Council so to do.'

(v) The constitution of Eire, 1937, was passed by the Oireachtas under the amending power of the Constitution of 1922 (as amended by the Statute of Westminster). It did not mention the King but saved the Executive Authority (External Relations) Act, 1936, changed the Irish Free State to Eire, and provided that Eire was a 'sovereign, independent, democratic State'.

(vi) The Republic of Ireland Act, 1948, repealed the Executive Authority (External Relations) Act, 1936, and declared that Eire was an independent republic under the name of the Republic of Ireland."

Step (ii) gave rise to litigation in which the validity of the Irish statute was upheld: Moore v The Attorney-General for the Irish Free State (1935) AC 484; see also Kirmani v Captain Cook Cruises Pty Ltd (No. 1) (1985) 159 CLR 351 at 364, 375-7, 391, 406-9, 427-9, 451-3.
As I have said, in Ireland the Free State Constitution came into force on 6 December 1922 and Mr Kenny was born in the next year, in the territory of the Irish Free State. When he arrived in Australia in 1946 he was, under Irish law, a natural-born Irish citizen by reason of the date and place of his birth: Heuston supra p 84. After discussing later legislation of the Irish Free State, particularly the Irish Nationality and Citizenship Act 1935 (Ir.), the learned author concludes that, in Irish law, after 10 April 1935 no person who was an Irish citizen was also a British subject: Heuston supra p 85. However, in the United Kingdom, a person in the position of Mr Kenny was still regarded as a natural born British born subject, birth in the Irish Free State in 1923 being regarded as birth within the King's Dominions: Murray v Parkes (1942) 2 KB 123, Heuston supra p 81.
Writing in 1938, Professor A.B. Keith, in his work "The Dominions as Sovereign States", p 113, describes as follows the effect of the Irish Nationality and Status of Aliens Act 1935 (Ir.):

"The aim is clearly to abolish as far as possible the status of British subject or national, and thus to assert the fundamental independence of the State. It is, however, very difficult to say what the effect of the legislation is. It is impossible to ignore the Statute of Westminster, and to say simpliciter that Irish citizens remain British subjects while in the State under British law. It seems more consonant with the authority due to the Statute and to the Irish Parliament to suppose that in the State, Irish citizens are such only, but that outside they assume the aspect of British subjects, and so can make, like Mr. Bernard Shaw, the best of both worlds, enjoying Irish citizenship when visiting Dublin, but being a British subject or Irish national asa fancy prefers in foreign lands."

Section 1 of the Ireland Act 1949 (UK) "recognised and declared" that from 18 April 1949 Eire ceased to be part of his Majesty's Dominions. Section 5 thereof inserted a saving provision in favour of a class of persons who was not to be deemed to have ceased to be British subjects on the coming into force of the British Nationality Act 1948. That class was limited, by sub-s. 5 (1) to persons born before 6 December 1922 in that part of Ireland which now formed the Republic of Ireland. Mr Kenny was not a member of that class. The result was that, under British law, he was to be treated as having ceased to be a British subject on 1 January 1949.

The Status in Australia of Irish Citizens
52. To ascertain the position under Australian law, it is necessary to turn first to the Nationality and Citizenship Act 1948, the operation of which commenced on 26 January 1949. A person who is a British subject immediately before that date became, on that date, an Australian citizen if immediately prior to that date he had been ordinarily resident in Australia for a period of at least 5 years: para. 25 (1) (d). However, a person, such as Mr Kenny, did not become an Australian citizen by virtue of sub-s. 25 (1) because, but for para. (d) thereof, he would have ceased to be a British subject on the date of commencement of the Act: sub-s. 25 (2).

Sub-section 25 (2) directs attention to s. 7. This provided:

"7 (1) A person who, under this Act, is an Australian citizen or, by an enactment for the time being in force in a country to which this section applies, is a citizen of that country shall, by virtue of that citizenship, be a British subject.

(2) The countries to which this section applies are the following countries, namely, the United Kingdom and Colonies, Canada, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon."

Ireland thus was not a country to which s. 7 applied.

The status of Irish citizens who immediately prior to 26 January 1949 were also British subjects but who, as I have indicated, were not within the reach of s. 7, was specially dealt with in s. 8. This provided as follows:

"8. (1) An Irish citizen who, immediately prior to the date of commencement of this Act, was also a British subject shall not by reason of anything contained in the last preceding section be deemed to have ceased to be a British subject if at any time he gives notice in the prescribed form and manner to the Minister claiming to remain a British subject on all or any of the following grounds:-

(a) that he is or has been in the service under an Australian government;

(b) that he is the holder of an Australian passport issued by the Australian government; or

(c) that he has associations by way of descent, residence or otherwise with Australia or New Guinea.

(2) . . .

(3) Where, under the law for the time being in force in a country to which section seven of this Act applies, provision corresponding to the foregoing provisions of this section is made for enabling Irish citizens to claim to remain British subjects, a person who is, by virtue of that law, a British subject shall be deemed also to be a British subject by virtue of this section." (Emphasis supplied)

Sub-section 8 (3) was linked to s. 2 of the Nationality and Citizenship Act 1948. Section 2 provided for citizens of the Republic of Ireland to make a claim to remain a British subject and upon allowance of the claim to continue to be a British subject. It was repealed by sub-s. 52 (8) and Schedule 9 of the Nationality Act 1981 (UK). However, s. 31 of the 1981 Act provides for such claims still to be made. The grounds of a claim under sub-s. 2 (1) of the United Kingdom 1948 Act were as follows:

"(a) that he is or has been in Crown service under His Majesty's government in the United Kingdom;

(b) that he is the holder of a British passport issued by His Majesty's government in the United Kingdom or the government of any colony, protectorate, United Kingdom mandated territory or United Kingdom trust territory;

(c) that he has associations by way of descent, residence or otherwise with the United Kingdom or with any colony or protectorate or with any such territory as aforesaid."

There is no evidence that Mr Kenny brought himself within sub-s. 8 (3) of the Australian 1948 Act by reason of a successful claim under s. 2 of the British Act.
Sub-section 9 (2) of the 1948 Australian Act had the effect that, until provision to the contrary was made, federal and Territory legislation would "continue to have effect in relation to Irish citizens who are not British subjects in like manner as they have effect in relation to British subjects". Sub-section 3 (2) of the 1948 British Act was, mutatis mutandis, to like effect. The British provision was construed in Bicknell v Brosnan (1953) 2 QB 77 as rendering applicable the provision of the National Service Act 1948 (UK) to Irish citizens who were ordinarily resident in the United Kingdom.
Section 8 of the Australian Act reflected an acceptance of the view which had been expressed by Singleton J in Murray v Parkes supra at 136:

"Assuming that having regard to the structure of the British Commonwealth of Nations there could be a secession by one part or Dominion, what is the effect of it on those who were British subjects? It is clear that secession of territory itself does not rob a person of his status as a British subject. On secession, he still has the right to elect what he will do."

In the present case, there is no evidence that in the years before he left Australia in 1983 to visit South East Asia, Mr Kenny availed himself of the facility offered, in particular, by paras. 8 (1) (a) and (c) of the Australian statute, that is to say service in the RAN and the association with Australia which he had built up by residence here. He had been told by the electoral office at Earlwood in Sydney that he was a "permanent resident" when he registered as an elector in 1948. Mr Kenny simply regarded himself as an Australian resident and as one who had made his home here.

The 1948 legislation introduced a method of acquiring citizenship which did not correspond to anything in the previous law, namely citizenship by registration. In the Australian Act, this was provided for in ss. 12 and 13. These provisions were not directly concerned with the status of the British subject. They were concerned with the attaining of Australian citizenship. Those who might do so were citizens of the Dominions referred to in sub-s. 7 (2) and, this being a further example of their special treatment, Irish citizens. In the case of a person such as Mr Kenny, it would have been necessary for him to satisfy the Minister, inter alia, that, in terms of para. 12 (1) (b) he had resided in Australia or New Guinea for not less than 5 years during the 8 years immediately preceding the date of his application or for such shorter period, not being less than 12 months, as the Minister allowed. I have referred earlier to Mr Kenny's unsuccessful application in 1984.
The net result of these various provisions in the 1948 Australian Act was that, as an Irish citizen, Mr Kenny had open to him the possibility of retention of his British status as a British subject under s. 8, and the possibility of obtaining Australian citizenship by registration under s. 12. The procedures for citizenship by naturalisation, in ss. 14-16 of the Australian 1948 Act, did not apply to him because for the purposes of those provisions Mr Kenny was, as an Irish citizen, not treated as an alien; see the definition in sub-s. 5 (1). He did not, as I have indicated, automatically become an Australian citizen pursuant to s. 25.
The Citizenship Act 1969, s. 22, substituted a new s. 8 in what was now called the Australian Citizenship Act. After immaterial amendment by s. 20 of the Australian Citizenship Act 1973, s. 8 read:

"8 (1) An Irish citizen who, immediately before 26th January, 1949, was also a British subject has the status of a British subject if -

(a) he has, before the commencement of section 6 of the Citizenship Act 1969, given a notice in accordance with sub-section (1) of section 8 of the Nationality and Citizenship Act 1948 of that Act as amended; or

(b) he gives a notice, as prescribed, to an officer authorised by the Secretary to receive notices under this section claiming to be entitled to the status of a British subject on all or any of the following grounds -

(i) that he is or has been in service under an Australian government;

(ii) that he is the holder of an Australian passport;

(iii) that he has associations by way of dissent, residence or otherwise with Australia or New Guinea.

(2) Where, under the law for the time being in force in a country to which section 7 applies, provision corresponding to the foregoing provisions of this section is made for enabling Irish citizens to have the status of British subjects or of Commonwealth citizens, a person who, by virtue of that law, has that status also has the status of a British subject by virtue of this section."

The United Kingdom was a country to which s. 7 still applied.
A new s. 9 was inserted by the 1969 legislation, as follows:

"9 A law of the Commonwealth or of a Territory in force at 26th January, 1949, has effect, unless provision to the contrary has been or is made, in relation to Irish citizens who do not have the status of British subjects in like manner as it has effect in relation to persons who have that status."

Part II of the Australian Citizenship Act, which included ss. 7, 8 and 9, was repealed by s. 7 of the Australian Citizenship Amendment Act 1984, with effect 1 May 1987.
The result was that with the commencement of the 1984 statute on 1 May 1987, there ceased, in Australia, to be any provisions which attributed to Irish citizens in the position of Mr Kenny any of the characteristics of the status of British subject, notwithstanding the severance in allegiance which, on any view of the nature of the Crown, had occurred in 1949 with the inauguration of the Republic of Ireland.
The legal position is, that since 1949, Mr Kenny has been an alien, subject only to the existence of elective provisions in Australia which, if availed of, would have permitted him to retain his former allegiance. It is, I think, not to the point that such provisions may still exist in the United Kingdom. I express no view as to whether, in any event, Mr Kenny could bring his case within the terms of the United Kingdom legislation or could have done so.
No case was sought to be made, and I am not to be taken as suggesting that as a matter of fact or law it could be made, that Mr Kenny had dealt with officers of the Commonwealth in such a fashion to bring himself within authorities dealing with estoppel as discussed in "Halsbury's Laws of England", 4th ed, reissue, vol 4 (2), pp 73-74; see also Roberts v Repatriation Commission (1992) 111 ALR 436. Nor do I express any view that the present proceedings would have been a proper vehicle for the litigation of such a case.

Local Allegiance
69. There is a question whether, by reason of his long residence in this country, Mr Kenny acquired, notwithstanding his alien status, what in the authorities called "a local allegiance" and, if so, the consequences of that status.

In Street v Queensland Bar Association (1989) 168 CLR 461 at 505, in the course of considering the phrase in s. 117 of the Constitution "subject to the Queen", Brennan J said:

"It may be that resident friendly aliens are subjects of the Queen in right of Australia so long as they remain in Australia: see Arnerich v The King (1942) NZLR 380."

Toohey J (at 554) said:

"Whether a person living in Australia, but not a natural born or naturalized Australian citizen, is entitled to the protection accorded by s. 117 is a matter to be considered when the occasion arises."

Arnerich v The King supra is authority for the proposition that a friendly alien resident in New Zealand might present and proceed with a petition under the Crown Suits Act 1908 (NZ). The Judges in the New Zealand Court of Appeal discussed various authorities including Johnstone v Pedlar (1921) 2 AC 262. In that case, at 276, Viscount Cave said:

"No doubt a friendly alien is not for all purposes in the position of a British subject. For instance, he may be prevented from landing on British soil without reason given: Musgrove v Chun Teeong Toy (1891) AC 272; and having landed, he may be deported, at least if a statute authorises his expulsion: Attorney General for Canada v Cain (1906) AC 542; and see In re Adam (1837) 1 Moo PC 460. But so long as he remains in this country with the permission of the sovereign, express or implied, he is subject by local allegiance with a subject's rights and obligations . . ."

The decision of the Privy Council in Cain was relied upon extensively by the High Court when construing s. 51 (xix) of the Constitution in Robtelmes v Brenan (1906) 4 CLR 395 at 400, 404-5, 409-411, 413, 418-421. That decision in turn was relied upon in Pochi v Macphee supra at 106, in support of the proposition that an alien immigrant who has not been naturalised does not cease to be an alien by absorption into the Australian community.

The Legislative Power as to Aliens
74. In Pochi v Macphee (1982) supra at 109-10, Gibbs CJ said that "pursuant to the legislative power conferred by para. 51 (xix) of the Constitution the Parliament can treat as an alien any person who was born outside Australia, whose parents were not Australian, and who has not been naturalised as an Australian". That statement was adopted by 6 members of the Court in the joint judgment in Nolan supra at 185. Their Honours also (at 184) considered the status of a person who was born not in this country nor of Australian parents and who had not become a citizen of Australia, but was a British subject or a subject of the Queen by reason of his birth in another country. His status as a British subject no longer had the effect, so far as Australia is concerned, of precluding his classification as an "alien".

This second step invites an inquiry as to the stage at which, after British subjects settled in this country without becoming citizens of Australia, the constitutional relationship between Australia and other countries sharing the same sovereign reached the stage that one could say with certainty that the settlers had become aliens in this country. The present case may be answered without resolving that question as it applies to a person in the position of Mr Kenny.
This is because when he arrived in Australia he was, under Irish law, an Irish citizen, as well as a British subject. The position in Ireland was that "if somebody else chooses to regard our citizens as his we will take no cognisance whatever of it so far as our law and legal system is concerned . . . We are not able to take the Acts of the British statute book. We are not able to prevent the British from calling our citizens British subjects": a statement by Mr de Valera quoted in Professor Heuston's article supra at 85.
By reason of the constitutional changes in 1949 which severed, in the eyes of the legal systems of the United Kingdom and the Dominions, the link between Ireland and the Crown, a person in the position of Mr Kenny became an alien in accordance with then received notions. Ireland was "an independent country with its own distinct citizenship" and its citizens were therefore "aliens" in the Australian constitutional sense; see Nolan supra at 183. This step occurred quite independently and in advance, of subsequent developments which saw the divisibility of the Crown as between the self-governing Dominions, a topic discussed in the joint judgment in Nolan supra at 184.
It is true that Irish citizens were given the advantage in the 1948 legislation of special provisions which preferred them, as a class, to other friendly aliens. But in my view, in Australia, such laws were themselves to be characterized as laws made under the power with respect of "aliens".
However, I should indicate that I also accept the primary submission for the respondent. Counsel pointed out that in its original form s. 6 of the Migration Act had dealt with entry of prohibited immigrants and that by s. 6 of the Migration Amendment Act 1983 the term "An immigrant" was omitted from s. 6 and replaced by "A non-citizen". This change came into operation on 2 April, 1984. What is now s. 14 of the Migration Act was renumbered as such by s. 35 of the Migration Legislation Amendment Act 1989. It had been introduced into the law by s. 6 of that Act.
Against that background, the primary submission of Counsel for the respondent was that it necessarily follows from the decisions in Pochi supra and Nolan supra, that whatever may have been the position at earlier times (in particular, when Mr Kenny arrived in Australia in 1946), by 2 April, 1984 the consequence of Australia's emergence as a fully independent sovereign nation was that the term "alien" in para. (xix) of the Constitution had become synonymous with "non-citizen". Counsel pointed to the recent reaffirmation of these earlier decisions by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 110 ALR 97 at 112.
It is true that, as Gibbs CJ had said in Pochi supra at 109, Parliament could not simply by giving its own definition of "alien" expand the legislative power so as to include persons "who could not possibly answer the description of 'aliens' in the ordinary understanding of the word". Nevertheless, in the preceding passage his Honour had expressed the view, to which I have earlier referred, that at least since the British Nationality Act 1981 (UK) had come into force the status of British subject could have no bearing upon the identification of the class of aliens in respect of which the Australian Parliament might legislate. Gibbs CJ also pointed out (at 110) that if in a given case the Parliament had so legislated as to treat as aliens persons who did not answer the constitutional description of that term, that would not result in invalidity of the legislation; it would be a clear case for the application of s. 15A of the Acts Interpretation Act 1901 ("the Interpretation Act").
Counsel for Mr Kenny sought to gain support from para. 8(c) of that statute as saving the "rights" which her client had enjoyed under Australian law before the legislative changes I have discussed. That paragraph of the Interpretation Act does not use the term "status". In any event, the repeal of the legislation upon which Counsel relied as giving rise to those rights was clearly intended to achieve the result which it did. Further it is not accurate, as Counsel sought to do, to describe what occurred as having a "retrospective" effect. The legislation operated prospectively upon persons who by then had become members of the constitutional class of "aliens".
Finally, reference was made by Counsel for Mr Kenny to the judgments of Gaudron J in Nolan supra and Lim supra, the former being a dissenting judgment. In Lim (at 135-6) her Honour said that the legislative power did not authorise the transformation of a non-alien into an alien "by statutory redefinition of citizenship or by repeal or amendment of legislative provisions dealing with citizenship". In Nolan (at 192) her Honour had referred to the requirement of some relevant change in the relationship between the non-alien and the community constituting the body politic of Australia, including such matters as the abandonment of membership of the community or the acquisition of membership of some other nation community. In this passage her Honour referred to In Re Stepney Election Petition supra as an instance where the status of persons resident in England was altered by operation of different laws of State succession.
It is therefore apparent that her Honour had in mind those classes of case in which at common law as understood in 1900, there might be a divestment of allegiance. I have discussed this aspect of the matter earlier in these reasons. As I also have indicated the changes in the constitutional status of Ireland, the state of which Mr Kenny is a national, provide a recent example falling within this class.
Accordingly, even if it were necessary to apply the reasoning of Gaudron J in the judgments to which I have referred, in my view the result would not be to favour the applicant's case.
For these reasons the applicant has failed to make out his case as to the limited operation of the legislative power with respect to "aliens".

External Affairs
87. Although it therefore is unnecessary to do so, I should nevertheless express my views on some of the submissions as to the support given to s. 14 by the legislative power with respect to external affairs.

In Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 201-2, Gibbs CJ gave what may be regarded as a narrow formulation of this head of power. Nevertheless, it was relied upon by the respondent in the present case. The Chief Justice said :

"A law which regulates transactions between Australia and other countries, or between residents of Australia and residents of other countries, would be a law with respect to external affairs, whatever its subject matter".

Further, the treatment by Australia of the nationals of other countries, whether by denial of entry to those persons or deportation from Australia, concerns Australia's relations with those other countries; accordingly, a law upon these subjects is a law with respect to external affairs: see The State of New South Wales v The Commonwealth of Australia (1975) 135 CLR 337 at 389, per Gibbs J; Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 714, per McHugh J.
In addition, legislation which dealt with the entry into Australia of British subjects and former British subjects (such as Irish citizens in the position of Mr Kenny) and the status of such persons in Australia dealt with a well-established head of "external affairs". This is the changing relationship between Australia and what once were other members of the British Empire; see The King v Sharkey (1949) 79 CLR 121 at 136-7, 149, 157, 163; The State of New South Wales v The Commonwealth of Australia supra at 360, per Barwick CJ; Kirmani v Captain Cook Cruises Pty Ltd (No 1) supra.
For these further reasons I would dismiss the attack upon the validity of s. 14 in its application to Mr Kenny.
It is unnecessary to consider the further submissions for the respondent in which reliance was placed upon the Convention set out in the Schedule to the Racial Discrimination Act 1975 and the Covenant which is Schedule 1 to the Human Rights Commission Act 1981.

Conclusion
93. The applications should be dismissed. But in view of the general public importance of the issues ventilated in the litigation, I will make no costs order against the applicant.

[1993] FCA 305

14 MAY 1993