Koroitamana & Anor v Commonwealth of Australia & Anor

[2006] HCATrans 161

[2006] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S225 of 2005

B e t w e e n -

LOMANI JOEY KOROITAMANA (AN INFANT BY HER NEXT FRIEND SEREANA NAIKELEKELE)

First Applicant

MEREANI DIVOLOVOLI (AN INFANT BY HER NEXT FRIEND SEREANA NAIKELEKELE)

Second Applicant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 APRIL 2006, AT 10.20 AM

Copyright in the High Court of Australia

__________________

MR R.C. KENZIE, QC:   May it please the Court, I appear with my learned friend, MR S.E.J. PRINCE, for the applicants.  (instructed by Michaela Byers)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with my learned friends, MS M.A. PERRY, QC and MS K.C. MORGAN, for the respondents.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Kenzie.

MR KENZIE:   Thank you, your Honour.  Your Honours, on the application for special leave it was ordered by the Court that this matter be adjourned to the Full Court to be argued as if it was an appeal.

GLEESON CJ:   Mr Kenzie and Mr Solicitor, Justice Callinan is not able to be here today for reasons of health.  In the event that we should reserve our decision in this matter, are the parties agreeable to his participating in the decision on a reading of the papers and the transcript of oral argument?  You do not need to answer that question immediately.  If you can answer it today, so much the better, otherwise let us know within seven days.  Yes, Mr Kenzie.

MR KENZIE:   Thank you, your Honour.  As I indicated on the special leave application, this matter was adjourned to be argued as if it was an appeal.  Special leave was not granted on the day but the matter was adjourned and, in those

circumstances, we had proposed to address our submissions as on appeal as indicated in the order.

If it please the Court, the matter obviously involves the question of whether the applicants are persons subject to detention and involuntary removal from Australia pursuant to sections 189 and 198 of the Migration Act being aliens within the meaning of section 51(xix).

Your Honours have our written submissions and will have noted that we have posed the question arising on the appeal on page 1 as being whether a person who was born in Australia, not a foreign citizen or a subject of a foreign power, and not a citizen within the meaning of the Australian Citizenship Act, is an alien for the purposes of section 51(xix).

I would need of course to draw the Court’s attention to the respondent’s written submissions for this reason, that it adds a feature which is relevant to the case of course, and that is that the respondents say that the primary issue is whether the Full Court was correct in holding, by reference to Singh, that the applicants were persons who were aliens in circumstances where the applicant’s parents were foreign nationals, being citizens of Fiji.  The applicants were born within Australia and the applicants are not Australia citizens under the Australian Citizenship Act.  I have taken the Court’s attention to that because obviously the respondents have directed attention to that feature.

We addressed the question in the way that we did because it was apparent that the parties are at odds as to the actual approach to the constitutional provision and there is a question that arises in the appeal, at least on our submissions, as to what the respondents do or say ‑ ‑ ‑

KIRBY J:   We have seen before attempts to elevate statutory citizenship into constitutional nationality.  It is just a too simplistic approach as far as I am concerned.

MR KENZIE:   Well, your Honour, I understand that and the force of it, your Honour, and particularly in the context of your Honour’s decision in Singh which actually addressed the very question that arises in this case because of the way in which your Honour addressed Singh meant that your Honour did not accept allegiance to a foreign power and answered the question on a basis which must inevitably cover this case and among many other things I need to acknowledge, I acknowledge that.

GUMMOW J: One question that arises is whether, under international law for the moment, your clients are stateless when under the Fijian Constitution which you got before us under section 12 they can acquire citizenship of that country by registration at any time in their life.

MR KENZIE:   Indeed, your Honour.

GUMMOW J:   So I would not regard them as at present advised as stateless.

MR KENZIE:   Your Honour, we actively assert that the applicants are not stateless and that has always been our position.

KIRBY J:   Indeed, that is at the heart of your case because otherwise they would fall within Singh.

MR KENZIE:   Assuming that in Singh the Court in saying what it did about statelessness – and I am ‑ ‑ ‑

GUMMOW J:   That is why I took it up with you.  What Justice Kirby said does not reflect my understanding of it.

MR KENZIE:   I will come to this, but the joint judgment in Singh said that among the things that had remained constant was the notion that a stateless person was within the constitutional contemplation but in 51(xix).  It has always been our position that the applicants are not stateless and were accordingly not embraced by what was said in the joint judgment in Singh.  We say that they are not stateless and have said that they are not stateless for a slightly different reason, but I would not want to dispute what your Honour has to say.

KIRBY J:   At some stage would you clarify what exactly was the position as far as nationality was concerned of Ms Singh.  I think you make a point, or someone makes the point, that the Court acted on a basis that did not elaborate clearly the nationality of Ms Singh.  There was a suggestion that she had Indian nationality and I recall – and it is mentioned but not elaborated in my reasons – that there was a provision in the 1955 Indian Nationality Act I think of India that gave her Indian nationality, but there had been subsequent amendments to that Act which required her either (a) to register, which sounds like the Fijian provision, or (b) to seek an administrative discretion in her case.  I have not re‑explored that but insofar as we are looking to the extent to which Singh provides the answer to this application, I would like to get it clear in my mind.

MR KENZIE:   Your Honour, I have not come equipped to revisit the actual facts and position in Singh but the position as far as the judgment is concerned was this, as we apprehended, that your Honour took the view that it was inappropriate to proceed on the basis that Singh owed allegiance to India because of at least the uncertainty that your Honour referred to, namely that there was a change that had potentially altered that position.

So your Honour did not proceed on that basis.  Your Honour proceeded on the basis that Singh was not a person who owed allegiance and your Honour’s judgment is to be understood, in my respectful submission, on the basis that you were addressing the question that appears at the outset of your Honour’s judgment and that is, and I am paraphrasing, “Was a person born in Australia of foreign nationals an alien?”  That was the way ‑ ‑ ‑

KIRBY J:   Put another way, whether it was competent to the Federal Parliament to so provide for such a person.

MR KENZIE:   Correct.  Now, one thing is clear, your Honour – a number of things are clear – the dissenting judges did not need to address that question because they looked at the question broadly from the other end and they said effectively that birth in Australia was conclusive and did not need to address the question of whether there was allegiance to a foreign power because they said it did not matter.

So the difference between your Honour’s analysis and the analysis on which the majority judges went forward did not matter.  Indeed, Justice McHugh framed the question that he was addressing in much the same way that your Honour did.  That much is clear, but the majority judgments went forward and dealt with Singh on the basis that Singh owed allegiance to India and that is because it was common ground in the case and was accepted - the provisions of the Indian Constitution I think from recollection were before the court.  The court expressed itself as able to proceed on that basis and did so ‑ the majority ‑ I am sorry, your Honour.

GUMMOW J:   That is right.  Now, what I regard as left open by Singh is the question of a person born here but who is otherwise stateless and in that respect we are a party to the Convention on the Reduction of Statelessness entered into force for us on 13 December 1975.  It is [1975] ATS 46 and Article 1 would seem to oblige us to grant citizenship to such persons at birth.  We do not seem to do so.

MR KENZIE:   No.

GUMMOW J:   A question could be, how does the aliens power impact in that sort of situation?  But that is not this case, so how are you trying to get special leave?

MR KENZIE:   We advanced the case for special leave on this basis, that the applicants in this case, as we asserted, were persons who did not and do not owe allegiance to a foreign power and were, accordingly, distinguishable from the way in which the ‑ ‑ ‑

GUMMOW J:   Say that again.

MR KENZIE:   The applicants in this case do not owe allegiance to a foreign power and do not have the characteristic that was significant to the majority in Singh.

GUMMOW J:   But you are saying they are not stateless?

MR KENZIE: Correct, and we are saying they are not stateless because we are saying – and we say that we are assisted in relation to the Convention on Statelessness, that statelessness is to be determined by the laws of the – in our case, Australian law and pursuant to Australian law, namely, the Constitution, the conclusion that these applicants are stateless is not open. We say and we acknowledge clearly for the purposes of this appeal that the force of what the majority had to say in Singh, namely, that those characteristics that were identified in cases like Potter v Minahan and by Justice McHugh in Singh were not sufficient to alter the result for Singh, that Singh was a constitutional alien and that is because Singh had the characteristics that were identified by the majority and those characteristics were, the characteristic that was described as central, namely, allegiance to a foreign power. 

It is not possible, in our respectful submission, to describe the children in the present case as stateless because they are members of the Australian community and they have all of the characteristics that are described in Justice McHugh’s judgment.

GUMMOW J:   What I am putting to you is they are not stateless because they have this facility offered them by Fiji, which is the state of the lex sanguinis, the notion of which was explored in majority judgments in Singh and, therefore, they are aliens.

MR KENZIE:   Your Honour, we would submit that Singh, whilst it deals with the question of statelessness, it plainly accepts the notion that a person who has no connection with Australia, a person who was in the position of Al-Kateb in Al-Kateb v Godwin, is a stateless person and who, according to the authority of this Court ‑ ‑ ‑

GUMMOW J:   He was not born here.

MR KENZIE:   He was not born here, no.  He was a person who had no connection with Australia and he was described by at least your Honour the Chief Justice in Al-Kateb as an alien because stateless.  In Singh itself the joint judgment identified statelessness as alienage and we take no issue with that as such but we assert that it is wrong to categorise the applicants in the present case in that way because of their association and connection with the Australian community.

HAYNE J:   And you speak of association or connection, but do you mean anything more than birth within and continued residence?

MR KENZIE:   No, your Honour.  We mean the fact of birth in Australia, having the results that were identified in Singh and ‑ ‑ ‑

GUMMOW J:   Identified by whom?

MR KENZIE:   Identified as having, in the decision of the majority, not the result of preventing the categorisation of Singh as alienage, in the dissenting judgments as being relevant to the question of ‑ ‑ ‑

GLEESON CJ:   Why are we interested in the dissenting judgments?

MR KENZIE:   Your Honour, I am really attempting to indicate what result came from those categorisations.

GLEESON CJ:   No result comes from a dissenting judgment.

MR KENZIE:   No, your Honour.

KIRBY J:   The reasoning of Justices of this Court is found there.  It is not part of the holding and you have to distinguish Singh, but as far as I am concerned it is not ignored.

MR KENZIE:   Your Honour, I am attempting to do so simply by saying this, that Singh dealt with a situation in which there was allegiance to a foreign power but that was the characteristic that was fundamental to the majority decision, in my respectful submission.  Along the way, the Court said what it did about statelessness.  It was not addressing, in my respectful submission, the question of whether Singh was stateless.  It was doing no more than acknowledging that a situation of statelessness would give rise to alienage if established.  It was doing no more than acknowledging an acceptance of the view that Mr Al-Kateb and people like that were stateless but it left open the question of whether it would be appropriate to regard a person who was born in Australia, and who owed no allegiance to a foreign power, as stateless in circumstances where that person was, according to the law of Australia, a member of the Australian community ‑ ‑ ‑

GUMMOW J:   Now, where do you get that from, “according to the law of Australia, a member of the Australian community”?

MR KENZIE:   Your Honour, we get that from the constitutional provisions that were discussed by Justice McHugh in Singh and we get that from the decision in Potter v Minahan and cases that applied that followed.  There is nothing in Singh, in our respectful submission, to gainsay the proposition that a person in the position of the applicant in the present case bears the characteristics discussed by, true it is, the dissenting judgments in Singh.  True it is that in circumstances where Singh had a positive characteristic of alienage, those characteristics were not conclusive but it is not the same thing to say that those characteristics amount to a rejection of the notion that a person who bears them is stateless.

HAYNE J:   Can I understand what you say is established by Singh because it is not at all clear to me what you contend is established by that case.  First, do you accept that the Court in Singh held that “aliens” when used in 51(xix) is not used with a fixed legal meaning identified by some state of the common law at the time of Federation?

MR KENZIE:   Yes, I do.  I accept that it acknowledged that the contentions that had been advanced as to the inflexible position following Calvin were rejected for the reasons enunciated in the majority judgment.

HAYNE J:   Was a necessary step in that rejection the rejection of an understanding of the constitutional term “aliens” as having a fixed legal meaning at Federation determined according to some asserted understanding of common law?

MR KENZIE:   If that understanding means the understanding advanced by the applicants, plainly the answer is yes, but if the question is whether Singh involved an acceptance of the proposition that section 51(xix) did not have a meaning which could be tested on the basis in cases such as Pochi, then the answer is no. Section 51(xix) was not accepted as not having a meaning; it was accepted as having a meaning that was affected by the developments in the common law post Calvin and those developments that were discussed at length in the judgments.

HAYNE J:   It was not development in the common law post Calvin; it was the intervention of successive statutory alterations together with the development of a deal of controversy in England in the 19th century about notions of nationality, citizenship, alienage and the like.

MR KENZIE:   Certainly, your Honour.

GLEESON CJ:   What in your submission was the point of departure between the majority and the minority in Singh?

MR KENZIE:   In Singh the minority held that birth in Australia was conclusive and accepted the contention of the applicants that that characteristic removed them from the category of aliens.  The majority rejected the contention of the applicant that that fact removed the applicants from the category of aliens because developments in legal history made the applicants’ attempt to exclude themselves in that way indefensible and impossible because the law had developed by 1900 to a stage where that contention was manifestly unsustainable. 

That was the point of departure and Singh accordingly is authority, in our respectful submission – and I will have to go to the passages of course – for the proposition that a person, though born in Australia, who owes allegiance to a foreign power is a constitutional alien.  That is the characteristic that was identified by the majority in Singh.  There was a slight variation.  I will need to come to your Honour the Chief Justice’s judgment in relation to this, but it was that characteristic that was held to render the applicant in Singh a constitutional alien.  The majority held that once that characteristic was held, the fact that the applicant could also be described in the way that his Honour Justice McHugh in dissent described the applicant did not prevent the applicant from having that character.

HAYNE J:   Did the majority of the Court in Singh reject the view that birth within Australia is conclusive of non‑alienage?

MR KENZIE:   It certainly did, absolutely.  What was happening in Singh was that the applicant was coming along with a proposition, namely, “I was born here and that is conclusive, and that takes me out of the constitutional frame”, and Singh was about that.  Some members of the Court accepted that, the dissenting judges.  The majority did not accept that and said there is more to it.  If you have characteristics of alienage, then the fact that you were born here will not take you out of the constitutional ambit.

KIRBY J:   So that means you need a value added – you need something on top of birth, which gets you a part of the way, you say?

MR KENZIE:   Exactly.

KIRBY J:   What is the value added?  You can understand a certain disquiet or anxiety about your value added because, as I understand it, you are simply suggesting that because your clients have not themselves claimed a right which appears to belong to them in the Fiji Islands, you are therefore in a sense by your bootstraps able to give yourself the value added.  Is that an unfair way to put it?

MR KENZIE:   I can accept that for the purposes of my argument.  Likewise, I can accept that a person who was an ‑ ‑ ‑

GUMMOW J:   What is the value added?  What is it?  You are being asked to tell us what it is.

KIRBY J:   As I understand it, as you put it, it is that because you or the children, or by their parents the children, have not applied for and registered for the citizenship of the Fiji Islands as they could have done, that therefore you are by, in a sense, you own action a stateless person.

MR KENZIE:   That is not the way we put it, your Honour. We say this, that alienage, like other matters dealt with in the Constitution, in relation to a particular controversy, requires demonstration of whether the person or the subject has the characteristics that allow you to say that they are within the relevant class. We say – and firstly accepting, as we do and must, that birth here cannot be conclusive – that we have no characteristic that would be accepted as establishing alienage, and unless there is a characteristic that we have, we are not an alien.

Your Honour puts it this way:  you have not made an application which you could.  But, your Honour, in that respect, our clients are in no different position to a person who might have an opportunity to achieve a connection with a foreign country by making an application for an Irish passport, or anything, and has not yet done so.

GUMMOW J:   No, this is as of right.

MR KENZIE:   But, your Honour, it may be true.

GUMMOW J:   Citizenship through registration formalities has been known for a long while in various countries.

MR KENZIE:   Yes, but, your Honour, there are lots of countries around the world in which persons might be able to exercise a right to make an application.  The Federal Court described in this case ‑ ‑ ‑

GUMMOW J:   You have a right to make an application.

MR KENZIE:   It was a right to make an application, that is right, and there are lots of ‑ ‑ ‑

GUMMOW J:   It is a right to registration.

MR KENZIE:   A right to make an application for registration, yes.

KIRBY J:   Do you say that under the law of the Fiji Islands that the government or the officials in Fiji could lawfully refuse citizenship to the applicants?

MR KENZIE:   Well, your Honour, the Constitution relevantly – and it is on page 12 of the materials – provides in 12(1) that you can:

become a citizen by registration if, at the date of the child’s birth, either parent was a citizen.

Then there are other provisions which deal with what might happen if, for example, the child is 21, and there are conditions that are subsequently attached to applications of that nature and there are no similar conditions that appear from section 12 of the Constitution in relation to a child who answers the description in section 12(1), at least prior to attaining majority.

The position is that at least application can be made on behalf of such a child, if a decision is made to do that, by a parent or guardian. The child itself has no right of course. The Constitution is silent, or appears to be silent, in relation to what is to happen in relation to such an application. As I say, the conditions that appear to be there in relation to renunciation in other circumstances are not there.

KIRBY J:   Would one not read the constitutional provision in the Fiji Islands as providing effectively a right to registration if they were born to parents who were out of Fiji at the time of their birth?

MR KENZIE:   Yes.

KIRBY J:   In addition to the international law that has been mentioned, there are provisions in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights Article 24, the Convention on the Rights of the Child, Articles 7 and 8, which favour the right to a nationality and the Constitution of Fiji seems to provide in that way, so one would think that it is by their own decision not to seek that citizenship of the Fiji Islands, that they have a foothold in an argument that they are not citizens of Fiji but they are entitled to nationality in Australia.

MR KENZIE: They would be in no different position to anyone else in Australia who, having achieved citizenship under the Act or otherwise, exercised a right to make application for citizenship, say, because they were third generation Irish. They would be aliens too on that basis. It is a very slippery proposition to say that a person is an alien because they are a person in respect of whom an application might be made by a next friend under a foreign Constitution.

KIRBY J:   I understand that, Mr Kenzie, and in my reasons supporting the majority orders in Singh I pointed to the danger that you have just mentioned but I said that this Court could, in an appropriate case, draw the line.  Now, the problem with drawing the line where you are suggesting the line should be drawn is that it is a fairly standard provision if a person is the child of children of a national to provide for registration subsequent to birth.  So that is not a very unusual provision.  In fact, it exists in respect of children of Australian citizens.

MR KENZIE: Yes. Well, your Honour, all that we can say is we do not apprehend that – and of course this is not conclusive – the respondents have taken the position that the capacity to take action pursuant to a foreign Constitution which has not been availed of is a characteristic of alienage and we would submit that it is not an appropriate basis for perceiving a characteristic of alienage because it does no more than indicate that something might happen in the future.

KIRBY J:   Maybe I am misunderstanding your value added.  Could you express it again to me?  Birth plus what takes you out of alienage?

MR KENZIE:   No, your Honour, our submission is that it is completely inappropriate to approach the matter on the basis of what takes you out of alienage.  The correct constitutional question is:  do you have a characteristic that entitles you to be described as a constitutional alien?  That is the question.  Indeed, it is that fundamental issue which effectively divides the parties.

GUMMOW J:   Here you have the lex sanguinis from the parents.

MR KENZIE:   Yes.

GUMMOW J:   Plus the availability of citizenship by registration under the lex sanguinis.

MR KENZIE:   You do.

GUMMOW J:   Why is that not enough?

MR KENZIE:   Well, your Honour, that raises the question – and it is a large question – of the effect of what was described as the lively debate and the issues that arose at the end of the 19th century as to what the permitted scope of 51(xix) is in relation to the addition of the notions concerned with the lex sanguinis.  There is no doubt that the Court accepted in Singh that that lively debate had to accommodate at least circumstances of dual nationality.  That debate clearly involved the difficulties that arose in circumstances where another nation applying the lex sanguinis took the view that a child of a person of that nation, wherever born, was a national of that nation.  The child of a French person is French.

Those concepts had to be factored in and were of course accommodated in the developments post 1870 and they needed to be factored in to deal with the fact that you had conflicting results in a country that applied the lex soli like Australia because you had two countries claiming the same national and there had to be legal developments to accommodate that.

There were other legal developments that occurred in the late 19th century which dealt with what was previously accepted as the indelibility of the place of birth and those developments gave rise to the result in Singh and made it clear that the place of birth was not indelible as it had been perceived post Calvin.  But nowhere does one find in those debates, in our respectful submission, in the lively debate if one likes, the notion that a person who is born in a country and has not yet taken any step in relation to any other country, who is not a person who owes allegiance to any other country, who was not a person who, for example, in Australian context could be excluded by section 44(i) from standing for the Australian Parliament, is an alien.

HAYNE J:   But you accept, do you, that the constitutional conception of “aliens” includes those who, by the lex sanguinis, are nationals of that other country?

MR KENZIE:   At least to the extent that that had consequences in term of alienage and ‑ ‑ ‑

HAYNE J:   I do not follow what you mean by that.  Do you accept that the constitutional conception includes those who, by the lex sanguinis, are nationals of the country of that descent?

MR KENZIE:   The constitutional conception accepted by Singh involved an acceptance that the law had developed in such a way as to require an accommodation of a mixture of the lex sanguinis and lex soli because of the circumstances that were addressed in the context of the Naturalisation Acts and following but they did not involve any notion that the lex sanguinis was imported into the law of Australia so that a child of an alien was an alien.

GLEESON CJ:   Are you treating the circumstance that your client has not taken a step towards registration in Fiji as a characteristic?

MR KENZIE:   No, your Honour.  We are saying we have no ‑ ‑ ‑

GLEESON CJ:   Because she had that characteristic when she was one day old.

MR KENZIE:   We say we do not have a characteristic of alienage.  We are a person who was born in Australia and we do not have a characteristic of alienage.

KIRBY J:   I know you say that but, you see, Ms Singh could say the same thing.  She could say, “I was born in Australia.  I know no other land.  I know Australian sports.  I know its ways.  I speak its language.  I am here.”, and she did not succeed because the statute was held constitutional.

MR KENZIE:   No, your Honour.  With respect, that is where the line is drawn.  That is the difference between this case and Singh.

GLEESON CJ:   But we have got to the point, have we not, in our decision making that we have said that absorption is not relevant to alienage?

MR KENZIE:   Correct.

GLEESON CJ:   So we can forget about absorption.

MR KENZIE:   Forget about absorption.

GUMMOW J:   And forget about Potter v Minahan, which is an immigration case.

MR KENZIE:   We can forget about the immigration results of Potter v Minahan but we cannot forget about the concepts which underlay the decision and which are concepts which are reported in the dissenting judgments in Singh.

GLEESON CJ:   But if you can forget about absorption these characteristics belong to somebody at the moment of birth.

MR KENZIE:   Correct.

GLEESON CJ:   Ms Singh when she was one day old did not know Australian sports or had not taken a liking to Australian food but whether or not she was an alien was a question that would require the same answer when she was a week old as when she was five years old.

MR KENZIE:   That is because at birth, as the Court said in Singh, Singh owed allegiance to a foreign power and was accordingly a constitutional alien.

KIRBY J:   That is why I would like to know what is the difference in the nationality status in Singh and the nationality status of your clients because at least some of the material suggested that under the Indian law and Constitution, if you are born overseas you had to register to be an Indian national. I just do not know what the point of difference is and I would like you to tell me what it is.

MR KENZIE:   Your Honour, I cannot say at this juncture who was right or who was wrong in Singh in accepting the state of the Indian law, but it is clear that the majority, rightly or wrongly, accepted that Singh was an Indian national, owed allegiance to India.  Your Honour did not but the majority clearly did and the majority clearly regarded that as the characteristic, and I will need to address your Honour the Chief Justice’s separate judgment, that defined the applicant Singh as having that constitutional status.  That is clear, in our respectful submission.

That is completely different from the present case.  In the present case the applicants were born in Australia.  They had no connection with a foreign country.  They owed no allegiance to a foreign power.  They had this characteristic, that they were born of parents who were themselves aliens, the same as Singh.

KIRBY J:   And at birth she did not, at the moment of birth or the day after or four years after, as such have citizenship of Fiji.  She did not owe allegiance, you say, until she registered in Fiji and then and then only and thereafter only did she have the contaminating foreign allegiance.

MR KENZIE:   In Singh the applicant had foreign allegiance from birth because that was the effect of the Indian Constitution.  Singh was dealt with on the basis that Singh had that characteristic and was an alien.  These applicants do not have that characteristic.  They would have that characteristic if they became Fijian citizens.

GUMMOW J:   This notion of allegiance is rather confusing.  I thought we had rather got rid of that.  Aliens owe a species of allegiance.

MR KENZIE:   Yes, your Honour.  I know that we have not opened Singh yet, but there is no doubt that there is allegiance and allegiance. Aliens owe local allegiance. It means having to observe the laws of the country in which you are present and takes the matter no further. There is a question as to whether the characteristics of a member of the Australian community described in our Constitution is in a different category and that raises the question of statelessness. Allegiance to a foreign power has not slipped from view. The notion of allegiance to a foreign power, far from slipping from view, was regarded as the central characteristic of alienage in Singh.  Indeed, there is a great deal of industry in the judgments in Singh in explaining the inevitable and close relationship between allegiance to a foreign power and the constitutional concept of alienage.  That was fundamental to the majority decision in Singh. 

Your Honour the Chief Justice’s judgment involves a picking up of the joint judgment and also referring to the notion of being the child of foreign persons, but allegiance to a foreign power is what Singh was all about, in our respectful submission.  These applicants do not have that characteristic, so what is raised in this case ‑ ‑ ‑

GUMMOW J:   Is that not just another way of saying she had not yet become a Fijian citizen, even though she could?

MR KENZIE:   Yes, and it may be that lots of people in Australia could go out and achieve foreign citizenship and they have not yet done it and in circumstances ‑ ‑ ‑

GUMMOW J:   No, it is coupled with the lex sanguinis.

MR KENZIE:   Your Honour, that is why, with respect, it is important to define one’s terms here and to actually focus on what are the characteristics that we are talking about.  I do not flee from what your Honour is putting to me at all.  What I do submit is that one needs to put one’s head up above the bunker at some stage and identify those characteristics which allow you to be described in the constitutional way. 

Now, if this Court is of the view that an alien, because of the developments in the late 19th century discussed in Singh, that concept includes a person who is born of alien parents because of the introduction of the lex sanguinis.  That has consequences.  That means that the constitutional concept of alien has the lex sanguinis built into it for all money, and the child of an alien is an alien and that child’s children are also aliens.  There are large consequences of an acceptance of the view that you import the lex sanguinis for all purposes into the law of this country.  That is a big question.  One needs to actually get above the fox hole and determine whether that is right or not. 

One also needs to determine whether the characteristic of having the right to gain citizenship in another country, or the potential for gaining citizenship in another country, is a relevant characteristic of alienage, but without a relevant characteristic of alienage, in our respectful submission, it is not possible to identify a person born in Australia, which is not conclusive, as an alien.  Being born in Australia cannot be regarded as conclusive.  It is not irrelevant.  If a person is born in Australia and has no other alien characteristics, in our respectful submission, that person is not an alien.  If that person has characteristics that can be identified, like allegiance to a foreign power ‑ ‑ ‑

GLEESON CJ:   Is it slightly more accurate to say, if a person is born in Australia and has no other relevant characteristics, that person cannot be treated by the Parliament as an alien?

MR KENZIE:   Correct, your Honour, I take that correction.  It is obviously the position.  Of course, it is not permanent and it is not conclusive because if you are an Australian person, a non‑alien, you can achieve alien status.  The post‑Calvin developments tell us that you can renounce your citizenship because birth is not indelible.  You can then achieve alien status, but you will have that status because you have a characteristic that can be defined. 

GUMMOW J:   Do you accept that the ratio of Singh 78 ALJR 1383 appears from paragraphs [32] and [205] on pages 1392 and 1427? “It was common ground that [she] is a citizen of India”, et cetera.

MR KENZIE:   Your Honour, we accept this, that that is so.  I need to qualify it in one respect if I can, your Honour.  The joint judgment concluded by saying that Singh ‑ ‑ ‑

GUMMOW J:   I am asking about paragraph [205].  Do you accept that?

MR KENZIE:   Yes, your Honour.

GUMMOW J:   Admittedly, a lot went before it, but you are at the top of mountain in [205] and you are at the top of the Chief Justice’s mountain at paragraph [32].

MR KENZIE:   Well, your Honour, I only need to say this, that it is clear that ‑ ‑ ‑

GUMMOW J:   It sounds as if we are back in first year law school really, trying to work out what a ratio is.

MR KENZIE:   Well, your Honour, in paragraph [32] an additional characteristic was referred to by the Chief Justice, and it is the reason I am qualifying my answer to your Honour’s question.  What happened in paragraph [31] his Honour the Chief Justice picked up and referred to the joint judgment but said of the applicant in paragraph [32]:

She is a citizen of a foreign state, the child of foreign citizens and, although born in Australia, she is an alien.

In paragraph [205] the conclusion was not based in any way, shape or form on the middle characteristic, that is the child of foreign citizens; to the contrary.  If I can take your Honour back to paragraph [144], this is at the commencement of a lengthy judgment which was stated to have been written for the purpose of demonstrating that the central characteristic of alienage was allegiance to a foreign power.  In paragraph [144], halfway down through the paragraph:

As a citizen of India the plaintiff has obligations, “owes allegiance”, to a nation other than Australia. She is, therefore, a person within the class referred to in s 51(xix) as “aliens”. As will be apparent from what has just been said, the plaintiff does not fall into that class simply because her parents do so.

Now, what followed was a lengthy analysis, to which I have not of course yet come, which attempted to, and of course succeeded, in demonstrating the conclusion that central to the characteristic of alienage was allegiance to a foreign power.  Not only did the joint judgment say that, and say what it did in paragraph [144], but it referred to Nolan with approval in paragraph [205] as saying:

that “alien” “[u]sed as a descriptive word to describe a person’s lack of relationship with a country . . . means, as a matter of ordinary language, ‘nothing more than a citizen or subject of a foreign state’”.  It was common ground that the plaintiff is a citizen of India.  She is, therefore, a citizen of a foreign state.  She is a person within the naturalisation and aliens power.

In our respectful submission, your Honour, that is the ratio.  Your Honour the Chief Justice’s reference to the child being a child of citizens of India is there, but it is not the ratio of the case.  Singh is no authority for the proposition that if you are the child of foreign citizens, based on principles flowing from the lex sanguinis, you are an alien.

GLEESON CJ:   Singh is at least authority for the proposition that the fact that you were born in Australia does not mean that Parliament cannot treat you as an alien.

MR KENZIE:   Clear.

GLEESON CJ:   Now you say the search has to be for characteristics of alienage.

MR KENZIE:   Yes, your Honour.

GLEESON CJ:   In your case you say, “All there is to it is that my client was born in Australia”, do you not?

MR KENZIE:   I go on to say and acknowledge that the child was born of aliens and, unless the principle be that if you were born of aliens you are an alien, that is not a relevant characteristic.

KIRBY J:   That does present the problem that Justice Callinan raised in the special leave application, I think Justice McHugh too ‑ ‑ ‑

MR KENZIE:   It does.

KIRBY J:   ‑ ‑ ‑ which was that if birth in Australia is not a claim to Australian constitutional nationality, you have to be rather careful in defining what is permissible alienage to take people born in Australia out of it, lest we allow Parliament by the constitutional interpretation to provide by law that many people who otherwise are thought of as Australian nationals under the Constitution are in fact able to be made by Parliament constitutional aliens.

MR KENZIE:   Correct.

KIRBY J:   Now, that is the tricky problem in the case.

MR KENZIE:   Your Honour, in these circumstances, the respondents do not submit baldly that if you are born of aliens you are an alien.  They do not submit that.  There would be huge consequences ‑ ‑ ‑

HAYNE J:   It is hardly surprising because there is an intermediate step, which you consistently refuse to acknowledge, that the conclusion of alienage has, at least in part, regard to the law of the lex sanguinis.  Now, you assert born of alien parents not necessarily alien without regard to what consequence, if any, is to be attached to the lex sanguinis.  Now, if the constitutional conception of alien includes those who by the lex sanguinis are nationals of that country of descent, what is the significance that is to be attached to an intervening step of registration that suffices to draw a relevant line in the constitutional conception of alien?

MR KENZIE:   The significance, in my respectful submission, is that its availability is irrelevant.  If taken, it is relevant and obviously conclusive.

GLEESON CJ:   Why do you say – your submission, as I noted it was, if a person is born in Australia and has no other relevant characteristics, that person cannot be treated by Parliament as an alien.  That is the major premise of your argument?

MR KENZIE:   That is the major premise, your Honour.

GLEESON CJ:   The minor premise of your argument is that your client has no other relevant characteristics?

MR KENZIE:   Correct.

GLEESON CJ:   Why do you say the fact that your client has the capacity to become a citizen of Fiji by registration is not a relevant characteristic?

MR KENZIE:   Well, I say it for a number of reasons.  Firstly, it is no more than a potential situation.  Secondly, it involves an extension of the concept of alienage way beyond that which was characterised, referred to in Nolan and picked up by the majority, as constituting a characteristic of alienage and is a totally unsatisfactory basis for saying that someone presently has a constitutional status.

GLEESON CJ:   The word “relevant” requires to be attached to some principle relevant to what?  Here it is relevant to the power of the Federal Parliament by legislation to treat somebody as an alien.

MR KENZIE:   Yes.

GLEESON CJ:   That is the kind of relevance with which you were concerned, is it not?

MR KENZIE:   Yes, it is.  It is.

GLEESON CJ:   Why is it not relevant to the power of the Federal Parliament to treat somebody as an alien that the person has the characteristics of your client?

MR KENZIE:   That, in our respectful submission, proceeds on the basis that because 51(xix) is a power in relation to status and its determination, as your Honour has said in Te and as the Court said in Singh, that that takes that proposition and elevates it to the stage that you do not have to worry in a relevant sense about the ambit of the power in the Communist Party type sense.

One thing is clear and it is this, that even though one is asking the question that your Honour puts to me, and I accept, that nonetheless one has to address the ambit of the power and if you have reached that stage, if you have reached the stage of saying you are a constitutional alien and liable to deportation because there is a potential for you to do something under foreign law which you have not yet done, you have travelled beyond the constitutional power and you are affixing a constitutional status to someone who does not yet have it.

GLEESON CJ:   The other way of putting the question, the same question, is to say, is it open to Parliament to treat a person who has your client’s characteristics as not being a member of the Australian community?

MR KENZIE:   If that involves the same question as alienage the answer to that question is no, because that person is a member of the Australian community in the sense discussed in the authorities and has taken no step to change that situation and if one thing is clear it is that if you have persons who are members of the Australian community in the constitutional sense it is beyond the power of Parliament to exclude them from the Australian community.

GLEESON CJ:   But now that we can get rid of the notion of absorption, in what sense is your client a member of the Australian community other than being here?

MR KENZIE:   But, your Honour, birth is not irrelevant.  To say that you cannot become a member of the Australian community by absorption is not to answer the question of whether a person who is born here and who has taken no other step is a member of the Australian community.  A person who is born here is in a constitutionally different position from a person who says, “I was born overseas.  I have never had any connection with Australia.  I have come here and I have been here for a long while”.

GLEESON CJ:   If having taken no other step is a characteristic that was a characteristic your client had at the age of one, one day.  Your client had taken no step when she was one‑day old.

MR KENZIE:   Yes.

GLEESON CJ:   She did not become an alien some time later.  She did not become an alien when she was old enough to take the step.

KIRBY J:   But of course that is true of most people in Australia who are born here as Justice Callinan pointed out in the special leave.  We do not go down to the local school and register as Australians.  We do not go to a school yard and take an oath.  We do not do any of those things.  We are just Australians and that is why we have to find what is the discrimen that puts your client out of the same category ‑ ‑ ‑

MR KENZIE:   Correct, in our submission.

KIRBY J:    ‑ ‑ ‑ without, as it were, having to justify her position. Now, that is one way to ask the question. The other way is the way that I asked it and that is to ask does the Federal Parliament have the power to make such a provision and having regard to the developments through the 19th and 20th century, given that there were always these two streams, lex soli and lex sanguinis, why does it not have the power to choose between those two things unless you take the view that the Constitution is and is only to be interpreted by reference to what it meant in 1901, something the Court does not normally do.

MR KENZIE:   Because no developments in the 19th century took matters to the stage where it was constitutionally permissible to describe as an alien someone who was born in Australia and in respect of whom no foreign power, there was no allegiance to any foreign power and no foreign power claimed that person as a subject or national and that is the position of our client.  That can change. So can anything.  A person who was born in Australia can decide to go and do lots of things but until they do they are not ‑ ‑ ‑

KIRBY J:   It does have a curious consequence that we are then allowing our Constitution to be interpreted by reference to the Constitution of other countries.

MR KENZIE:   Your Honour, there is no vice in that, in our respectful submission.  In Singh the Court was doing precisely that – the majority, I am sorry.  The majority was taking Indian law as having a consequence.  It had the consequence of regarding the subject of owing allegiance to India.  Because of recourse to the foreign law the status of alienage was affixed or allowed or identified.  It happens all the time.  If you want to decide whether someone is excluded under section 44(i) of the Australian Constitution from standing for Parliament in circumstances like those in cases like Sykes v Cleary, you need to address, firstly, the question of the foreign law to determine whether allegiance is owed and then you need to address subsequent questions like whether enough has been done under the foreign law to actually change that status.

There is no vice in Singh in the majority of the Court having regard to Indian law as giving rise to the consequence – it did so, it was appropriate – and there is no vice in the present case in having regard to the fact that Fijian law does not recognise at this point of time, at a point of time when our clients are subject to the consequences under the Migration Act, of owing allegiance to any other country.

KIRBY J: I presume that in earlier times before the Constitution, which was in 1997, Fiji went through similar provisions and understandings of nationality as we – they were British subjects until independence.

MR KENZIE:   It was a jus soli background and what you see in the amending Fijian Constitution is an extension of the jus soli to recognise the sorts of developments that were ‑ ‑ ‑

KIRBY J:   It is an express adoption of what we have put in the Migration Act which is now the subject of this challenge as to its validity of the notion that jus soli does not completely define Australian nationality.

MR KENZIE:   Correct.

KIRBY J:   We have provisions which are presumably similar to the Fijian, that if you go to the nearby Australian Embassy and register a child of Australian citizens born overseas, you get in.  But in the Act there is also that if you are not the child of Australian parents and you are born here, that you do not get in for a certain period and under certain conditions.

MR KENZIE:   Yes, that is true, section 10.  You have a 10-year period unless conditions are ‑ ‑ ‑

KIRBY J:   Does not this show that we are simply in these enactments of the Federal Parliament (a) reflecting similar developments in the Constitutions of later countries such as Fiji; and (b) embracing the fact that there are two international theories about nationality?

MR KENZIE:   Yes, your Honour, but the notion that what was involved in the pre-Constitution developments or otherwise that involved an intersection of the lex sanguinis and the lex soli inevitably raises the question of what is the consequence of that in terms of 51(xix).  At its widest it involves the incorporation – and I think your Honour Justice Kirby addressed this in Singh – of the lex sanguinis so that Parliament has a melange from which it can choose.

KIRBY J:   That is a worry ‑ ‑ ‑

HAYNE J:   Do you accept that to be so?

MR KENZIE:   No, your Honour, we do not accept that at all.

HAYNE J:   So, what, you reject the proposition, do you, that the power under 51(xix) would support a law which defines aliens by a mixture of criteria drawn from place of birth and descent?

MR KENZIE:   No, your Honour, we do not, but we say that the incorporation of the lex sanguinis into our law was an incorporation that reflected the particular matters that were discussed in Singh and in the reports of the Royal Commissioners and accepted that the effect of the introduction of the lex sanguinis was to give rise to issues in relation to dual nationality.

HAYNE J:   But do you accept that the constitutional conception of “aliens” would support a law which took as its criterion of alienage a mixture of sub‑criteria based in place of birth and descent?

MR KENZIE:   No, we do not for this reason, that lex sanguinis – it depends on which country you are talking about.

HAYNE J:   It depends on the content you are giving to lex sanguinis.  Are you not slipping back into that which was positively rejected in Singh, namely alienage has a fixed meaning?

MR KENZIE:   Your Honour, if the submission is rejected, then the notion of “alien” can pick up and will pick up the children of foreign‑born persons who come from a country that applies the lex sanguinis.  If I am wrong, that is the consequence.  The consequence of that is large and, in my submission, nothing in Singh requires that consequence and, indeed ‑ ‑ ‑

KIRBY J:   I think you are just going to have to take us to Singh because I have difficulty seeing how you can succeed while Singh stands, on whatever different bases – there were three different ways of explaining it, but the consequence was that the orders were made that Ms Singh, though born here, had to be removed as a non-national. 

MR KENZIE:   Yes, your Honour.  Could I say that the short answer to your Honour’s question is that the majority was careful in Singh in focusing on allegiance to a foreign power ‑ ‑ ‑

KIRBY J:   You mean the joint reasons.

MR KENZIE:   The joint reasons, I am sorry.

KIRBY J:   There was a majority and it included the Chief Justice and me but we are not in the joint reasons.

MR KENZIE:   No, your Honour.  The joint reasons made it clear that the plaintiff did not fall into the class of alienage simply because her parents did so and that that did not involve – if anything, it involved a rejection of the notion that you fell into the class simply because your parents did so.  At worst for us, it involved an acceptance of the fact that nothing in Singh gave rise to the conclusion that you fell into that category because your parents did so. 

HEYDON J:   What passage?

MR KENZIE:   It is [144], your Honour, I am sorry.  It is where the joint judgment was addressing the very nature of the question and the task at hand and explaining, in advance, as it were, the reasons of the Judges who were ‑ ‑ ‑

HEYDON J:   The last sentence of [144]?

MR KENZIE:   Yes, your Honour.

GLEESON CJ:   Which includes the word “simply”.

MR KENZIE:   I know, your Honour, and if the lex sanguinis was imported for all money, then that would have been the answer in Singh as well.  There would have been no need to investigate at length, to look at length for the central characteristic of alienage, namely allegiance to a foreign power, because the answer would have been clear.  The lex sanguinis was here and it was picked up for all money.  No further questions need be asked.  Singh’s parents were aliens ‑ ‑ ‑

KIRBY J:   So your point, is it, that in Singh it was according to the joint reasons common ground that Ms Singh was a citizen of India and, in your case, you are not a citizen of the Fiji Islands, you have to apply, and by your own decision not to apply you owe no allegiance to the Fiji Islands and you are here as a person born in Australia with no allegiance elsewhere and hence a constitutional national and not an alien?

MR KENZIE:   Correct, and I need to accommodate two things:  obviously your Honour’s judgment which proceeded on a different basis in this regard as I have put and your Honour the Chief Justice’s approach, which is to pick up the joint judgment but also to refer to the lex sanguinis aspect.  But, your Honour, nothing in paragraph [32], in our respectful submission, would be taken to indicate the result that Singh was an alien simply because her parents were aliens.  Your Honour identified effectively a number of characteristics and said she has the characteristic of an alien.

KIRBY J:   That seems to suggest that the Chief Justice’s reasons effectively join in the approach of the joint reasons.  I took a different and, in the face of your argument, a more difficult approach, but if the Chief Justice’s approach was the same as the joint reasons, then you have a problem, I think, because you then have four and that then provides a ruling of the Court, a recent ruling, against the background of a lot of cases which stands against you.

MR KENZIE:   With respect, to the contrary, your Honour.  If the Chief Justice’s judgment is allied to the joint judgment, then four members of this Court decided that alienage was established in Singh on the basis of the central characteristic, namely allegiance to a foreign power, and we do not have that characteristic.

GLEESON CJ:   You seem to be contending for the proposition that nobody can be an alien unless they have the characteristics of Ms Singh.

MR KENZIE:   No, your Honour, far from it.  We acknowledge a number of things about Singh.  We plainly acknowledge, and have to acknowledge, that the Court in Singh was taking the understandable step of only deciding what it had to. It was not saying, “We are now going to define the metes and bounds of section 51(xix)”. It was deciding the controversy. I will take your Honours, I undertake, very soon to aspects of the judgment to demonstrate this. It was deciding what it needed to decide and it decided that Singh had those characteristics. It also decided that obviously having those characteristics, that was enough, and you forget birth in Australia in those circumstances. But it did not say that there would not be and could not be other characteristics.

So in paragraph [190], to which I still have not come, the Court said – and it has to be acknowledged that the conclusion in paragraph [205] about Nolan has to be understood, for example, in the light of paragraph [190] of that decision where the joint judgment accepted that stateless persons were also aliens.  That is another characteristic.  What other characteristics of alienage might there be?  The Migration Act we note still has haunting remnants of the Calvin era in terms of children of diplomats and the like.  There are characteristics that one can identify, and maybe one of those characteristics is if your parents are aliens.  If that is a characteristic, your Honour, we have to throw our hands up in this case.

GLEESON CJ:    You mean relevant characteristic?

MR KENZIE:   Relevant, yes.

GLEESON CJ:   Characteristic relevant to an exercise by Parliament of its power to determine who are members of the Australian community?

MR KENZIE:   Well, yes, your Honour, but ‑ ‑ ‑

HAYNE J:   Because the ultimate statutory validity question which your case turns on is, because of the way the Migration Act is structured with its reference to citizenship, to take you back into the validity of 10(2) of the Australian Citizenship Act, is it not?

MR KENZIE:   Our only contention is that section 10 of the Act cannot define the metes and bounds of section 51(xix).

HAYNE J:   That I well understand, but attend, if you would, to my question.  The immediate question of validity that is raised by your case is a question about the validity of 10(2) of the Australian Citizenship Act, is it not, valid application to your clients?

MR KENZIE:   Yes, your Honour.

HAYNE J:   In particular, does the provision of 10(2) that a person born in Australia after a particular date is “an Australian citizen by virtue of that birth if and only if:  (a) a parent of the person was . . . an Australian citizen or a permanent resident” or had a particular period of residence, is invalid to the extent that it would be engaged in the case – how would you define it, Mr Kenzie?

MR KENZIE:   It would be engaged in a case where it would be inappropriate to describe the disqualified person as an alien because it is inappropriate to describe a person as an alien by virtue of association with parents of a particular description.

KIRBY J:   You say not only inappropriateness is not our concern, constitutionally invalid to do so.

HAYNE J:   That is to say your proposition seems to come to the proposition that the constitutional conception of aliens cannot be applied in a way that hinges upon a combination of birth and particular descent from Australian citizens, permanent residents or long‑term residents, is that right?

MR KENZIE:   Yes, your Honour.

HAYNE J:   That is to say it is a proposition that denies alienage being defined in a way that mixes the criteria found under the jus soli and the jus sanguinis.

MR KENZIE:   There are two questions there.  The answer to the last question must be that we would have to accept that at some point of time the application of the jus sanguinis has a relevant alienage impact.  If you have the alien status of your parents and that alien status brings with it duties and obligations to a foreign power, then it is impossible to resist the notion that you are a constitutional alien.  But if you are dealing with the question whether your status can be determined by simple application of the lex sanguinis in circumstances where it has no implications in terms of your allegiance, we contend that the aliens power is not that wide and it simply does not authorise Parliament – and we have to take this head on – to say you can operate any way in between even though it involves treating as aliens people who have, in fact, no connection with a foreign power, save by parentage, or perhaps grandparentage, depending on the system that one is operating under.

HAYNE J:   So the aliens power would not support a law that defined aliens purely by the jus sanguinis principle?

MR KENZIE:   Yes, if it is contended that the aliens power could be supported on the basis that the jus soli could be abandoned by Federal Parliament and supplanted entirely by the lex sanguinis, we would submit that power would not go.  Nothing in the lively debate in the 19th century would come anywhere near justifying that conclusion.

KIRBY J: Forget about the 19th century. The Constitution is a living document and there are these two theories in the whole world and the fact of the matter is that jus sanguinis has picked up a lot of support. The British subject idea and the jus soli was there for a long time, but as the sun set on the British Empire it has been losing a few adherents. Why should the Australian Constitution, when it uses generic words as distinct from words of more precise definition, not lend itself to statutes which give effect to this international development, which in part, I should say, is probably connected with fast air travel and the fact that people can come into a country, not by long journeys over the seas, but by getting on planes, to have a confinement in Australia perhaps and then suddenly say, “Well, we don’t want to register in our own country. We claim to live here and be people of the Australian community and Australian constitutional nationals”.

MR KENZIE:   Well, your Honour, firstly, if one takes the view that 51(xix) is a law relating to status and, as your Honour said in Singh, status changes and one has to accommodate that, a lot follows from that.  But the focus of most of the judgments in Singh was to place appropriate recognition on the historical context, not as ending the debate, but to give appropriate significance to the relevant historical context.  If the question is, “Could at any time Parliament have simply removed the lex soli from the screen?” our answer to that would be no, our submission on that would be no, and recourse to the historical context would support that contention.

GLEESON CJ:   You have submitted that it would be beyond the power of Parliament to adopt an entirely jus sanguinis criterion of alienage.

MR KENZIE:   Yes, your Honour.

GLEESON CJ:   Would it be beyond the power of Parliament to adopt a jus soli criterion of alienage or is it committed to a mixture?

MR KENZIE:   Alienage had to be informed, as the judgments in Singh instruct, by reference to the legal developments, statutory developments in the late 19th century at least, leaving aside subsequent developments and to adopt a view of alienage which departed from the position that was identified by the Court would be making the same mistake, in a sense, in reverse.

GLEESON CJ:   I happen to have a grand‑daughter who was born in the United States of America.  It cannot be that Australia is committed to an exclusively jus soli concept of membership of the Australian community, can it?  So it must be a mixture.

MR KENZIE:   Your Honour, we have not come here to contend that aspects of jus sanguinis are not part of section 51(xix). The question is what is the consequence of accepting that view? It really does not get any more complex than this. If we are wrong and it is open to Parliament to do that, then that has consequences in terms of who is a constitutional alien and we are wrong and we are within that category and we would have nothing further to say but we say ‑ ‑ ‑

KIRBY J:   I think you have a fair point which is that once you allow that Parliament can embrace either wholly or partly jus sanguinis then you do present a problem as to excluding from Australian constitutional nationality or potentially excluding from it people of Chinese descent, for example, or of African descent, or as we have seen in Kenya and other countries, people of British descent and there is then no clear constitutional principle to draw the boundary.  The history of the 20th century was full of cases of people being deprived of their nationality.  The problem is then how one finds a discrimen that cuts it off. 

In Singh I said, “Well, we will face that horrible eventuality if ever we need to”, but I do see the problem and I do not know what the full answer to it is.  It may just be that you have to say this is a case that does not present that problem.  After all, your client is not stateless. You do not say she is stateless.  She can quickly pick up a Fiji citizenship, she can register, and therefore does not present an acute dilemma but there is an intellectual dilemma in the problem that is presented by your case.

MR KENZIE:   That is true.

KIRBY J:   Why do we not just leave that to the horrible circumstances that trouble the mind and say in this case this is sufficiently within Parliament’s power to provide for an alien along the lines of the definition in Singh?

MR KENZIE:   Your Honour, for the reason that the matter cannot be, with respect, intellectually addressed without acknowledging what the consequence of recognising the lex sanguinis is.  If you take on board the lex sanguinis, you are taking on board the legal systems of other countries which apply the lex sanguinis.  Some of them claim grandchildren, some of them claim children and the like.  What are you importing into Australian law by adopting the lex sanguinis?  It cannot be done without recourse to what it is you are talking about.  You cannot simply say we will have the lex sanguinis and put down the glasses.  What does that mean in terms of who is an alien in Australia?  It is just a large question and it arises here, with respect.

KIRBY J:   But the Court addresses constitutional questions in the light of the matter before it in the facts and circumstances of the particular case and does not get frightened off by dangers down the path, but we do have to keep our eye on those dangers because of the very many instances where people in other countries have been deprived of nationality because their ancestors have been from a particular ethnicity or religion or some other identifiable cause.

MR KENZIE:   Yes.  In the present case a number of characteristics are potentially able to be identified.  In our submissions we have tried ourselves in the absence of any being forthcoming from the respondents but they include the bare notion that we are an alien because our parents were aliens.  That is the question that is involved in the respondents’ written submissions and that is a big question.  We assert that we are not aliens because of that reason.  I am not sure what the respondents’ position is but it plainly puts it into the mix somewhere.  We assert that we are not an alien because we have not yet done anything to dissociate ourselves from the Australian community.

KIRBY J:   As I understand your argument it is very much anchored in the words of the joint reasons, so you are going to have to ultimately get there and take us to them.

MR KENZIE:   Could I do that now, your Honour.  Could I say only this before I do open Singh.  Can I acknowledge a number of matters which I have to in light of the authorities, including Singh, to put what is not in issue as far as we are concerned in this case.  Firstly, as I have indicated, we accept obviously that alienage is a legal status and must be recognised as including the power to make determinations as to status, subject to the well‑recognised qualification in Pochi, discussed in Te.  We accept secondly, as I have said, that nothing in Singh says that the majority were seeking to exhaustively define the boundary and to say if you do not have allegiance to a foreign power you cannot be an alien - to the contrary. 

So for similar reasons we do not contend here, nor could we, that the absence of allegiance to a foreign power could be determinative in any way.  Singh makes that clear.  Singh also requires acknowledgment that a purpose of limiting Parliament’s power to legislate for exclusion of people like Singh was not apparent from the Convention debates by reference to the non‑inclusion of the citizenship power.  We do not advance contentions such as those that were advanced in Singh that one can ascribe reasons and explanations for the non‑inclusion of the citizenship power in a way that is going to inform this debate because Singh is to the contrary.

It also obviously requires appropriate recognition of the historical developments post Calvin as has been acknowledged.  It also requires us to acknowledge that the general principles to be applied are not in doubt.  They include, as noted in the joint judgment, the understanding that the constitutional text is to be construed with all the generality that the words used admit, and, second, that once the true meaning of the legislative power is ascertained, it is not to be further limited by fear of its abuse.

There is no question that they are the principles to be applied but, we submit, and when we come to it, that reading the power widely, informed by those principles, is not an invitation to treat it as embracing matters not truly within the scope of the Constitution, or, and we will have to come to this, avoiding the need for a determination by the Court of whether in truth the facts make out the constitutional nexus. The fact that it is a power re a status does not overcome the need to determine whether someone is within it.

We also acknowledge that the requirement for the identification of the historical meaning does not confine the operation of the Constitution to the application which those who wrote it might have had in mind – your Honour, the Chief Justice addressed those principles – and we further accept that the identification of the historical meaning is not complete if all that you do is ask the question as to whether the words would have applied to cover something at Federation. Those principles have been addressed and are gone.

GUMMOW J:   I do not think the contemplation of the framers would have favoured your clients.

MR KENZIE:   Your Honour, if the consequence of that was to exclude people from the Australian community ‑ ‑ ‑

GUMMOW J:   I just mention it because we have to look at this in a broader way.

MR KENZIE:   But, your Honour, insofar as there is an appeal to that side of things, and we have not focused on it, the notion that you would exclude people from the Australian community because they were children of people who were not in the Australian community is one that could not be assumed to have been welcomed by those who were involved in the drafting of the Constitution.

GLEESON CJ:   No, but there were quite a number of people in that category at the time of Federation in Australia.

MR KENZIE:   Yes, indeed, having regard to the history leading to Federation, in Federation as judgments of this Court have discussed, you were dealing with a changing society in which you were looking to accommodate circumstances in which you had lots of people in that category and you would not lightly assume that the notion of alienage was to be applied to people who were born to people who were not in the community because the very ‑ ‑ ‑

GLEESON CJ:   The question would be whether it was a contemplation that Parliament would have the power to treat people in that category differentially.

MR KENZIE:   Yes, your Honour corrects me again and I accept that.

KIRBY J:   This was a very racist country at the time of the Constitution and we have to face the fact that we have made a lot of progress since, and we should, and that is why the notion of fixing the concept of alienage by reference to what people thought it meant in 1901 is simply not acceptable, to me at least.

MR KENZIE:   Your Honour, it was not on page 1 of our submissions, but ‑ ‑ ‑

GLEESON CJ:   It is a question of what power was given to Parliament.

MR KENZIE:   Yes, and your Honour, the likelihood that Parliament was given power to exclude people on the basis that they were children of persons who were not Australian citizens or citizens of a colony is ‑ ‑ ‑

KIRBY J:   There is no suggestion that provision in the Citizenship Act is addressed to a particular racial group. It is universal in its provisions so we can put that particular demon out of our minds.

MR KENZIE:   Your Honour, it is not part of our submissions.  Could I finally come to Singh 78 ALJR 1383 and to the significant matters that we say need to be recognised from Singh. These matters that we seek to go to deal with the importance, firstly, of historical context whilst accepting the Constitution is an instrument required to accommodate societal change, obviously; but secondly, the fundamental requirement of identifying a relevant characteristic or characteristics in order to resolve the relevant controversy. Your Honours, the first of these matters ‑ ‑ ‑

GUMMOW J:   What are you going to demonstrate from Singh?

MR KENZIE:   That whilst birth has been rejected as conclusive, in the case of an ‑ ‑ ‑

GUMMOW J:   As exclusive.

MR KENZIE:   Yes, or conclusive in terms of the argument of whether 51(xix) applies, that in the case of a person born in Australia, that person will be able to be acknowledged as an alien if alien characteristics are able to be identified in relation to that person.  The reason I need to go this, your Honours, is because the parties are at issue in relation to this fundamental question.

If I can explain that by reference to the respondent’s submissions, in Part III, paragraph 20, that which fundamentally divides the parties is this, that we assert that the task at hand is to ascertain whether a person in a particular case is an alien contemplated by the constitutional term, and that that involves the identification of characteristics of the person based on ascertaining relevant facts.

The respondent’s approach is a global one based on the proposition that Parliament is left at large in defining any person as an alien, so long as they are not excluded from the definition because they are in some form of irreducible core of non‑alien. So that which divides the parties in relation to the task of an approach to the Constitution is revealed in paragraph 20 of the respondent’s contentions where they assert that we are posing a false question and they reject categorically the notion that, in order to characterise or identify a person as a constitutional alien, it is necessary to identify alien characteristics.

The respondent’s approach is to the contrary.  That is asserted to be an error, and the respondent’s approach is essentially this, that there is an irreducible core of alienage and unless you can prove your way out of it and show that you could not possibly be in that irreducible core, you will be an alien, and that is why ‑ ‑ ‑

GUMMOW J:   You say it is the other around?

MR KENZIE:   It is the other way around, and we secondly say the consequence of that is that you then have to, as it were, put your head up above the trench and you then have to identify and deal with the consequences of that identification and accept the task of saying whether those are characteristics of alienage.

GUMMOW J:   Well, that brings us to paragraph 23.  It struck me when I read it as rather mysterious – 23 of your opponent’s submissions.

MR KENZIE:   I know.

GUMMOW J:   What I would like you to tell me is why this entitlement to apply for Fijian citizenship is not a sufficient factor to attribute alienage.  I know it has been disavowed by your opponents, but that is just a curiosity of life at the moment to me.

MR KENZIE:   I firstly say it is unsurprising because our friends acknowledge the force of the contention that there is a difficulty in trying to classify someone as presently having a constitutional characteristic by virtue of their capacity to do something.  It is the same thing as saying I have the capacity to go down the road and apply for a British passport.

GUMMOW J:   It is really paragraph 23 plus the fact that Fiji is the country of the lex sanguinis, that being one of the great competing bases.

MR KENZIE:   Yes, your Honour.  In circumstances where ‑ ‑ ‑

GUMMOW J:   As indicated in Singh as a basis.

MR KENZIE:   Yes.

KIRBY J:   The normal position in Fiji is, is it not, the lex soli still?  If you are born in Fiji ‑ ‑ ‑

MR KENZIE:   Yes, it is.  It is a qualification; they have qualified the lex soli.

KIRBY J:   Well, it is not a qualification, it is an addition, as there is such an addition in respect of Australian parents having children overseas and going to the local embassy.  It is a benefit and apparently a right.

MR KENZIE:   But, your Honour, our position is that there is no basis for approaching this question on a different basis to that which it approached other heads of power in the sense that you would define something as a corporation because it was a corporation and you would not define something that was not a corporation as a corporation because there was a capacity to apply to create a corporation.  I mean, there is a fundamental problem here which is accepted by our friends and we cannot really say more than we have in relation to that.

So, your Honours, the approach of the respondents is to say, “We are not going to identify characteristics. We all know there is a wide power. You can’t tell us why it doesn’t apply; you’re an alien”. As Justice Gummow put to me and I accepted, we say the position is entirely to the contrary. There are all sorts of support for the contrary position in the context of section 51(xix) and therefore the required task is to address these questions. We have in our written submissions, actually in a sense arguing against ourselves because the respondents were not doing it, advanced a number of propositions like this and have invited their rejection. One of those propositions is that we should be regarded as an alien because of what we might do. Another proposition that has been suggested is the proposition that the decision is pre‑empted and automatically pre‑empted by the width of the Citizenship Act à la section 10, which is the thrust of our friend’s submissions in fact, and we have predictably submitted that that cannot be the constitutional ambit.

We have finally addressed the question of the lex sanguinis and our response to it is that the Court would not accept that the lex sanguinis has been imported into section 51(xix) without limit. No authority of this Court requires that result. Indeed, paragraph [144] of the joint reasons demonstrates an awareness of its significance and that the joint judgment went nowhere near that.

HEYDON J:   What other parts of Singh do you rely on?

MR KENZIE:   Could I give your Honours just a reference to those paragraphs of Singh which deal with the significance of the historical context: your Honour the Chief Justice at paragraphs [14] on 1387 and [27] at 1391, where your Honour, whilst of course recognising that the Constitution is to be approached as a document that was required to deal with the ages, that:

The reasoning in Cheatle is inconsistent with a theory of constitutional interpretation that denies the importance of historical context.

Your Honour went back to that topic in paragraph [29] on 1391.  The joint judgment at paragraph [159] referred to the identification of:

the meaning conveyed, at the time of federation, by the words used in the Constitution . . . is an essential step in the task of construction -

something which was emphasised as not being the same as looking for the subjective intention of the framers.  Could I also refer generally to the dissenting judgment of Justice McHugh at paragraphs [54] to [56] on page 1397, referring to the significance of the background of British colonial history.

KIRBY J:   What paragraphs were they?

MR KENZIE:   Paragraphs [54] to [56], your Honour, at 1397 and Justice Callinan at paragraph [297] at page 1442.  Your Honour Justice Kirby went further in relation to post‑1900 developments because your Honour truly focused on the notion that it was a power in relation to status.  However, your Honour acknowledged the fact that dual theories were available in 1901 in paragraphs [250] to [253] on pages 1435 to 1436.  Recognition of those factors put paid to Singh’s Case because they made impossible the conclusion that birth was conclusive, no doubt. 

Your Honours, the second significant aspect arising out of Singh is the recognition that the relevant constitutional task can only be accomplished by focusing on the particular controversy and the identification of a relevant characteristic or characteristics entitling the conclusion that an individual is a constitutional alien.

This is a matter, I do not pause on it now, but it is dealt with in paragraph 55 and following of our written submissions where we identify that most members of the Court acknowledged that this was the appropriate approach and that it was inappropriate to approach the question on the basis that required the plaintiffs to establish characteristics making them non-aliens or excluding them from the meaning of alien, for example, on the basis that there was some general cloak - or “penumbra” was the word that was used in Singh – which a relevant applicant had to try to fight their way out of to avoid constitutional coverage.  Your Honours, I do not think I need to open it but that is what the Full Federal Court did in this case. 

The Full Federal Court did not identify any characteristic of alienage.  The judgment of the court which is in the application book, paragraphs 21 to 22 involved the court in saying there was no underlying bedrock from birth referring to changing and developing policies and moved straight to the conclusion that the applicants failed because they could not escape the constitutional cloak.  You will not find in the Federal Court decision any discussion of whether there was any alien characteristic.  There was no wrestling with the questions as to whether we were stateless, whether there was a consequence of the lex sanguinis, or any other thing.  We simply could not get out of the reach.

KIRBY J:   But, Mr Kenzie, often in constitutional questions the Court is always looking at whether or not particular legislation is valid and therefore it is not at all unusual to ask the question “Is it invalid?” rather than “Why is it valid?”

MR KENZIE:   We do not flee from that at all but in this case, as Justice Hayne put to me and I of course accepted, the question was whether the legislation insofar as it applied to the applicants was valid.  That required a determination and requires a determination of the question as to whether we are constitutional aliens and, in our submission, that requires determination as to whether we have alien characteristics.  There is no escaping this unless one says that the status question is a burgeoning power and it can be addressed without focusing on the facts of an individual case and determining relevant constitutional characteristics.

HAYNE J:   Just before you part from that point, we are dealing with a head of legislative power?

MR KENZIE:   Yes.

HAYNE J:   We are dealing with a head which turns upon the term “aliens”.  By that is meant Parliament may make a law with respect to those who for Australian purposes are to be regarded as aliens.

MR KENZIE:   Yes.

HAYNE J:   We know that at Federation there were two competing theories:  jus soli, jus sanguinis.  I suspect but do not know that the core of the argument made against you is that the head of power authorises any law with respect to aliens that takes as its criteria of alienage one or both of place of birth and descent.

If the consequence of that is someone is rendered stateless, so be it.  If the consequence of it is that a person who does not then owe obligations to another state is treated by Australia as an alien, so be it. 

MR KENZIE:   Yes.

HAYNE J:   Now, that I think is the way in which the argument is put against you.  Your argument focuses upon owing obligations elsewhere as the defining criterion of alienage, does it not?

MR KENZIE:   No, your Honour.  We have never put that foreign allegiance is the defining characteristic.  Singh makes that submission impossible to maintain.  Singh involves a rejection of the notion and, indeed, the joint judgment for one, makes clear that the characteristics of alienage include matters.  It is a matter I think that your Honour addressed in passing in the Baxter Case which is referred to in the authorities.  We could not contend that.  Statelessness is accepted as alienage, no allegiance to a foreign power.  So we could not and do not contend that.  It is clearly open to find, contrary to our submissions or otherwise, that there are other characteristics which entitle you to come within the constitutional scope.

All that we are doing is attempting to address those which appear to have been raised.  If the respondent’s case is as your Honour puts it, that is that it would be open to Parliament to effectively operate within the frame of the lex sanguinis, then that, subject to correction and elucidation, seems to carry with it the conclusion that it would be open to Parliament to determine on some basis associated with the lex sanguinis that if you were a person who was claimed three times removed by a country applying the lex sanguinis, you would be ‑ ‑ ‑

HAYNE J:   No, no.  The Parliament may make a law that the only persons who are not aliens in Australia are those who descend from Australian citizens or permanent residents, period.

MR KENZIE:   Well, I am not clear whether that is the submission, your Honour, but ‑ ‑ ‑

HAYNE J:   Do you say that would be beyond power, such a law?

MR KENZIE:   Would your Honour put the ‑ ‑ ‑

HAYNE J:   The law would be that the only persons who are not aliens are those who are descended from Australian nationals or permanent residents, wherever born.

GUMMOW J:   Paragraph 19.  Have a look at paragraph 19 of the complainant’s submission.

MR KENZIE:   That would involve a global determination of alienage without regard to the question of whether individual persons might or might not have the characteristics of alienage, your Honour.  You would need to – there would be a problem with that because any law that in a blanket fashion puts you on one side of the fence or the other without regard to the fact of whether you have relevant characteristics of alienage would have a constitutional problem, in our respectful submission.

CRENNAN J:   Whether you have the characteristics or not depends, does it not, on whether you have sufficient connection or insufficient connection?  It is just another way of particularising whether the connection is sufficient or insufficient.

MR KENZIE:   Your Honour, Singh does not, as we read it, focus on that.  Birth in a country, one would think, might provide some form of connection, but was held not to be sufficient.

A person who had a real connection with Australia but who took foreign nationality and allegiance would be a constitutional alien on our understanding of Singh.  The reason for that is that that person would have the characteristics of an alien discussed by the majority in Singh.  That question would be asked and answered by reference to the possession of those characteristics on Singh and would not be asked and answered on the basis of whether otherwise or independently that person had what might otherwise be described as a connection with Australia.  To focus on that is to focus on the matters that Justice McHugh was looking at and the majority said those might be there but they do not determine the constitutional question.

CRENNAN J:   It is also focusing on what Justice Hayne was just saying because he was referring to sufficient connections.  The obverse of that is insufficient connections.

MR KENZIE:   Yes.  Does a person who was born in Australia and who has taken no step in relation to the achievement of allegiance with a foreign power and who does not answer the description in Nolan accordingly and who is not excluded constitutionally by provisions like section 44 from taking steps, for example, to become a member of the Australian Parliament, have an insufficient connection so as to be able to be defined as an alien?  We would submit not.

GLEESON CJ:   Does birth on a Qantas aircraft in flight constitute being born in Australia for purposes of a discussion like this?

MR KENZIE:   Statutorily, I think the answer to that is yes, but could I find the provision?  I am aware that it is being addressed, your Honour.  We will locate that.  Could I then come, your Honours, to the joint judgment in paragraph [152] at page 1417.  I am going to this because this has haunting resonance, having regard to the respondent’s submissions in this case.  The judgment proceeds:

It may be doubted whether metaphorical references to the “penumbra” of the meaning of a constitutional expression or, as it was put in oral argument, the “core” meaning of a constitutional expression, can be of great assistance in any task of constitutional interpretation.  The questions about the construction of the Constitution, which fall for decision in this Court, require particular answers to particular questions arising in a live controversy between parties.  The task of the Court is not to describe the metes and bounds of any particular constitutional provision; it is to quell a particular controversy by deciding whether, in the circumstances presented in the matter, the relevant constitutional provisions do or do not have the consequence for which a party contends. 

The joint judgment goes on to deal with the impact of the Communist Party Case and I mention that in passing at this stage only to say that those paragraphs are relevant notwithstanding the fact that we are dealing with a power as to status.  But at paragraph [154] the joint judgment goes on to say this:

These reasons seek to demonstrate that a central characteristic of the status of “alien” is, and always has been, owing obligations to a sovereign power other than the sovereign power in question.  The plaintiff has that characteristic.  The problem to which Gibbs CJ adverted in Pochi and Fullagar J adverted in the Communist Party Case does not arise and s 198 of the Migration Act can be supported in its operation with respect to the plaintiff as a law with respect to naturalisation and aliens.

The significance of those paragraphs is this.  Notwithstanding that the Court is dealing with a power in relation to status, the joint judgment recognises that unless you can attribute the relevant characteristics to the individual or individuals so as to resolve the controversy, you are left with the problem in the Communist Party Case.  It did not arise in that case because the relevant characteristics could be identified.  Then, your Honours, there are two other paragraphs I need to read.  Paragraph [190] of the joint reasons proceeds in this way: 

The word “aliens” may have had a fixed legal meaning in the 17th century ‑

a reference to Calvin’s Case and then, about three lines further down:

But there was one feature about the use of the word that was constant:  it was that the alien “belonged to another”.  Often that was expressed by reference to the concept of allegiance and often it was expressed in terms that, by their definitions, assumed that the world could be divided into two groups.  Either one was a British subject or one was an “alien”.  And those groups were defined by reference to the nature of the allegiance they owed.

Then reference to historical developments, which I refer to but do not read, and about three lines further down:

What may once have been the common law understanding of alienage yielded to these new circumstances. “Aliens”, even if it had once had a fixed legal meaning, did not bear such a meaning by the end of the 19th century.  But what did remain unaltered was that “aliens” included those who owed allegiance to another sovereign power, or who, having no nationality, owed no allegiance to any sovereign power.

So allegiance was not the end of it; you added statelessness.  There was no doubt a recognition of Al-Kateb and the like that found its way in there.  Then one comes to paragraph [200] which, in our respectful submission, is important.  It deals with a number of matters.  Your Honours said this:

To understand the constitutional reference to “aliens” as confined to those who, in 1901, by then existing British law, would have been treated by a British court as an alien would be to confine the meaning of the word too narrowly.  It would be to give meaning to the word by listing those to whom it could then have been applied rather than by identifying the characteristics of the legal status to which the word refers.  The central characteristic of that status is, and always has been, owing obligations (allegiance) to a sovereign power other than the sovereign power in question (here Australia).  That definition of the status of alienage focuses on what it is that gives a person the status:  owing obligations to another sovereign power.  It does not seek to define the status, as the plaintiff sought to submit, by pointing to what is said to take a person outside its reach.

Then that led to paragraph [205].

KIRBY J:   Can I just understand, your submission on that passage is that that accepts the principle you have been urging on this Court on this case that those who are challenged as to the power under the Constitution must bring the case within it, not show that the case is not excluded from it?

MR KENZIE:   Correct, that there is no unexplorable penumbra.  You have to actually intellectually deal with the characteristics of alienage and either accept them as relevant characteristics or not.  They do not disappear into a giant moor so that they become unexaminable on the basis that there is lip service given to Pochi but otherwise you cannot fight your way out of the hole.  The position is to the contrary, in our respectful submission.

KIRBY J:   But how do you reconcile that with the statement earlier in the reasons that the purpose of constitutional adjudication is not to give a right of treatise on the metes and bounds, but is to address the particular challenge that is brought to the Court?

MR KENZIE:   It is perfectly reconciled, in our respectful submission.  The second proposition, the proposition your Honour asks about, is a proposition that involves the notion that you decide what you have to and you do not decide what the metes and bounds of the constitutional power might or might not be if you do not have to.  But if you are able to say that a person has a characteristic which enables you to say, whatever the ultimate arguments are about the metes and bounds of the power, that characteristic is central to the power, it is not peripheral, then you are able to bring it to bear and declare someone a constitutional alien.  That is what the joint judgment did.  It did both those things.  But it did not decide that allegiance to a foreign power was the metes and bounds, as it is not.  So that is our case, your Honours.  It is the first part of our case.  We know we have a second part of the case, but the first part of the case is you have to do that.

Then the next question that arises is: what are said to be those characteristics? Does the respondent bob up into the light of day and say, “Well, okay, the characteristics are (a) and (b) and (c)”. If the characteristics are said to be potential to apply, the Court has our submissions. If the characteristics are said to be whatever you like in terms of the jus sanguinis, the Court has our submissions. If the proposition is that it is whatever the Citizenship Act says, then that proposition is impossible to reconcile with the Communist Party Case and with the acceptance by at least the joint Judges that, though it was a power in relation to alienage, you have to address the metes and bounds of the power and you can only do that by the identification of the characteristic.

Your Honours, I need to refer back to obviously your Honour the Chief Justice’s judgment at paragraph [30] on 1391 and 1392.

KIRBY J:   Paragraph [5] is really the starting point where the Chief Justice says:

Everyone agrees that the term “aliens” does not mean whatever Parliament wants it to mean.

MR KENZIE:   Quite.  Then it is a question of what you do with that.  What the respondents do with that is to say, “Right, we’ve said that but it’s very wide and as long as you can’t demonstrate that you couldn’t possibly fall within this range, you lose”.  We say what you do with that is you apply orthodox constitutional principle and say do you have the characteristics that bring you – are you a lighthouse, et cetera?

GLEESON CJ:   I do not think there were two different international theories of what constituted a lighthouse in 1901.

MR KENZIE:   No, I accept that and I accept that the submissions that I make have to be seen in the context that this is a power about a status and I accept that the submissions have to be seen in a context in which the feast was moving around, your Honour.  I have to accept those things, but it also has to be accepted that the task of constitutional decision ultimately must address in a proper and orthodox way the question of whether that constitutional power has been exceeded.  The problem does not go away because you add those two ingredients, in our respectful submission.  The joint judgment affirmed that proposition.  It said that the problem goes away when you start identifying characteristics that you can say answer the question.  It does not go away by saying it is too hard. 

I was going to paragraph [30] very briefly.  In that paragraph your Honour the Chief Justice identified the reasons of the joint Judges as demonstrating that in the case of someone such as the plaintiff, an Indian citizen born in Australia of Indian citizens, there was in 1900 no established legal requirement that she be excluded from the class of aliens.  We would say we would not want to make any submissions about that analysis of course except to suggest that there was nothing actually in the joint judgment to suggest that the fact that the plaintiff was born of Indian citizens was factored into the decision of the joint Judges.  Paragraph [144] tends to the contrary, but in any event the analysis there provided the foundation for the conclusion at paragraph [32] where your Honour rolled the matters together and said:

She is a citizen of a foreign state, the child of foreign citizens and, although born in Australia, she is an alien.

So your Honour was acknowledging in a sense that birth in Australia was there presumably because there was an argument focused on it and then saying that despite that argument, she has these characteristics and she is an alien.

GLEESON CJ:   The only reason it was suggested that she was not an alien was that she was born in Australia.

MR KENZIE:   Correct, and that was really the starting point.  You say that but despite that, these characteristics appear; this person is an alien.  Could I refer to just two other matters, your Honours.  Justice McHugh’s judgment at paragraph [36] – this is simply in relation to the approach and not of course in relation to what his Honour did as a result of that approach in dissent.  In paragraph [36] at 1393 his Honour said this:

Section 51(xix) of the Constitution empowers the Parliament of the Commonwealth to make laws with respect to “aliens”.  By necessary implication or assumption, that grant of power recognises that an alien is a person who can be identified by reference to some criterion or criteria that exists or exist independently of any law of the Parliament or indeed of the Constitution itself.  It is a corollary of that implication or assumption that the Parliament of the Commonwealth cannot itself define who is an alien.

GLEESON CJ:   If that sentence means Parliament cannot of itself decide who will be treated as an alien, it is inconsistent with authority.

MR KENZIE:   Yes, your Honour.  On the other hand, if it is to be read as an encapsulation of the principles in Pochi, then it would be unexceptional, your Honour.  Parliament cannot decide who is an alien at large, that much is ‑ ‑ ‑

GLEESON CJ:   But it can decide who will be an alien.

MR KENZIE:   Yes, it can.

GLEESON CJ:   In other words, Parliament does not have to treat as aliens everybody who is an alien within the constitutional conception.

MR KENZIE:   That is true, and that is the point, with respect.  To say that you add to the power in relation to status the role of Parliament in selecting who is an alien because it is a necessary part of the exercise of the power, in a sense, who is it going to apply to ‑ ‑ ‑

GUMMOW J:   There is a striking example of that in 1949 when the Irish Republic was established and the special provision was made that citizens of that new state were not to be treated as aliens here.

MR KENZIE:   Yes.

GUMMOW J:   They were aliens.

MR KENZIE:   Yes.

GUMMOW J:   They had become aliens.

MR KENZIE:   Yes.  Your Honour, to say that, to acknowledge that aspect of the power, is not to avoid ultimate recourse to the stream and the source, in our submission.  It is not.  Parliament can make a decision as to who is to be an alien, but it cannot make a decision about who is to be an alien outside the power.

GLEESON CJ:   This is part of the significance of the fact that the word “alien” appears in the Constitution in a context of a composite expression “naturalisation and aliens”, naturalisation being the process by which you cease to be an alien.

MR KENZIE:   Yes, it is a process which looks forward to a conclusion, as Justice Mason said, and followed by a status.

GLEESON CJ:   Or, put in another way, deciding on membership of the Australian community.

MR KENZIE:   Yes, your Honour.  Now, could I give your Honours a reference to Shaw 218 CLR 28 and perhaps if I could just ask your Honours to open it for a moment. There is a brief reference which I would wish to go to. I wanted to just go to a couple of paragraphs at page 36 of Shaw which dealt with, amongst other things, the application of Nolan, or the reapplication of Nolan.  At paragraph 9 – this is in the judgment of your Honour the Chief Justice and Justices Gummow and Hayne – there is a reference to Pochi v Macphee and the oft‑repeated quote:

The case presented by the applicant fixes upon the thought expressed in that statement. The “ordinary understanding” of the term “alien”, correctly, is not said to be at large. Its appropriate use in Australia must have regard to the circumstances and conditions applicable to the individual in question. The applicant contends that the relevant circumstances and conditions include the political and constitutional relationship between the UK and Australia at the time of his birth and thereafter. That may be accepted, with the caveat that the relationship also is to be understood in the light of various provisions of the Constitution to which further reference will be made.

However, contrary to the submissions for the applicant, the result of such a consideration of his position is his classification as an alien for the purposes of s 51(xix) of the Constitution.

And the like.  Again, this is simply taking the quest for some identification of alien status and saying, “Well, all right, they are the considerations you have advanced and that is the major premises.  Okay.  Where you fail is the minor premise.”  Again we call that in aid.

Now, your Honours, we acknowledge, and it has been acknowledged on a number of occasions, that the power in section 51(xix) is wide. That has been said on a number of occasions but nonetheless the constitutional task remains. We submit that it is no answer to say, as the respondents do in paragraph 20 of their submissions to which I have gone, that in some cases some well-recognised characteristic of alienage may resolve the question. If the respondent’s position as to penumbra was correct there would have been no need of course to discern a well‑recognised characteristic.

It is also incorrect to suggest, as the Commonwealth does in that paragraph, that the requirement to identify a characteristic would be contrary to the majority reasons in Singh because it would necessarily involve a fixed and certain meaning to the concept, but your Honours the joint judgment and we would say the majority did not deny the proposition that the term had a meaning.  They said that the fact that it had a meaning was not inconsistent with the capacity of the constitutional provision to apply to changing circumstances. 

Neither did the majority judgments, or any of them, say or imply that the constitutional concept was capable of embracing an individual in a controversy who bore no characteristic of alienage.  Nothing in Singh supports that conclusion.  So according to our friends there would have been no need to conduct the inquiry in Singh as to whether the applicant had a relevant characteristic.  Absent this characteristic the applicant would have been unable to escape the penumbra in any event and of course the applicant’s parents in Singh were unlawful non-citizens.  Your Honours, that is the first aspect of our submission.

We deal, in our submissions, with the consequence of an affirmative criterion of alienage being required.  I have to say that much of the submission and the time that has been occupied this morning has travelled into the second part of the submissions, your Honours, and I do not think I need to do more than identify where in our submissions those matters are to be found.

At paragraphs 44 to 51 of our written submissions we say that there has never been a case in which section 51(xix) has been held to apply on the basis of some penumbra or shade theory, particular characteristics have been identified as relevant, and we do submit that there is not a warrant for developing the law to create new characteristics based on the arguments that have so far surfaced, although we do not really know what the respondents would say if called upon to address in relation to particular characteristics because they have decried the necessity to do so, but it is fair to say, from the respondent’s submissions, that they do not seek to have any new category identified. They do not submit that you are an alien simply because your parents are aliens. They certainly do not submit that we are an alien because we could apply under the law of Fiji. They do not submit that there is some new category of aliens out there that needs to be registered or acknowledged. We do submit that, ultimately, their submissions come back to saying if it is in the Citizenship Act then that is it. We have put our submissions about that and we say that that cannot be an answer to our case.

As to dissent, as we have said, we are not quite clear what precisely the respondents’ position is.  They assert that the uncertainty at Federation embraced dissent, in paragraph 27, but nowhere assert that the fact that a person has an alien parent is decisive.  In fact, your Honours – and this is partly in answer to your Honour Justice Hayne’s question – they seem to assert the contrary and in relation to the issue, they identify in their submissions – if I can just give your Honours a reference to the paragraphs of their submissions where they suggest some line – it is paragraph 16 where the respondents make the point that:

birth within Australia can occur in circumstances where, for example, the parents are in Australia unlawfully, for temporary purposes, or for a limited period.  Considerations of this nature suggest that a child born in Australia to parents who are not Australian citizens (or permanent residents) may properly be regarded as falling within the ordinary understanding of the concept of an “alien” for constitutional purposes, and further support the proposition that the power was not intended to preclude the Parliament from deciding that a connection with Australia which may be transient, or even arbitrary, is an insufficient basis –

Then in paragraph 19 they do not contend that birth is necessarily irrelevant:

Rather . . . birth alone is insufficient to exclude a person . . . The respondents accept, however, that the position may be different where a person was not only born within Australia, but also had at least one parent who is an Australian citizen (or possibly a permanent resident), and there are no other relevant circumstances which would allow the person to be treated as an alien.  It is the combination of birth in Australia and Australian descent which would take such a person outside of the scope of the aliens power. 

So just precisely where those lines in the sand are, where they come from, what their constitutional basis is, nowhere appears, because the truth of the matter is there is not a constitutional discrimen that assists in relation to the drawing of lines like that. 

Could I just give your Honours a reference to our submissions insofar as they deal with the historical developments discussed in Singh.  Those matters are dealt with in paragraph 70 to 77 of our submission and I do not think I need to develop that. 

Your Honours, I should say something about statelessness.  I have indicated earlier this morning that our position in relation to statelessness is we assert that the applicants are not stateless, not for the reasons advanced by Justice Gummow earlier today but for other reasons.  Could I just perhaps give your Honours some very brief references in relation to that question and take your Honours briefly to Al‑Kateb 78 ALJR 1009.

KIRBY J:   Just before you leave Singh, could you explain to me what Justice Callinan’s dissenting view was.  Did he take the same view as Justice McHugh?

MR KENZIE:   Yes, your Honour.

KIRBY J:   And he said it is a constitutional word, it takes its meaning as it was understood in 1901 and it therefore is a jus soli law?

MR KENZIE:   Yes.  He accepted, as did Justice McHugh, the proposition that birth in Australia was decisive and you could not be an alien if you were born in Australia.  I just wanted to go to a couple of matters from Al‑Kateb very briefly.

KIRBY J:   Do not take us to the provocative parts.

MR KENZIE:   No, your Honour, I was going to the completely unprovocative parts, simply in relation to those passages that deal with statelessness which might assist in relation to the matter.  This of course dealt with ‑ ‑ ‑

GUMMOW J:   You have to add to that the decision of the second Lord Russell, I think it is, in Stoeck v Public Trustee [1921] 2 Ch 67, which has a detailed discussion of statelessness and concludes at 81 to 82 that a stateless person in English common law would have been treated as an alien.

MR KENZIE:   Yes.  I think we have said that we have no quarrel with paragraph 190 which proceeds along exactly the same lines.  Mr Al‑Kateb would clearly be an alien on the authority of this Court.  Just to put the matter in context, in Al-Kateb 78 ALJR 1009 your Honour Justice Gummow ‑ ‑ ‑

GLEESON CJ: It is 219 CLR 562.

MR KENZIE:   I was going to paragraph 79 of the ‑ ‑ ‑

GUMMOW J:   This is in the dissenting judgment.  What is the point of ‑ ‑ ‑

MR KENZIE:   Only this, your Honour, that it involves a discussion of statelessness which does not otherwise appear and is ‑ ‑ ‑

KIRBY J:   Was it common ground of all of the members of the Court that Mr Al-Kateb was stateless?

MR KENZIE:   No, I think only Chief Justice Gleeson actively said that Mr Al‑Kateb was a stateless person.

KIRBY J:   But I thought it was a premise for the reasoning of all the members of the Court.  However, you proceed and ‑ ‑ ‑

MR KENZIE:   I will have to check that, your Honour.  My recollection is that it was only the Chief Justice who actually determined that Mr Al‑Kateb was an alien.  But it is only at paragraph 79 where your Honour Justice Gummow said the term “stateless person” was:

defined in Art 1 of the Convention relating to the Status of Stateless Persons (the Stateless Persons Convention) as meaning one “who is not considered as a national by any State under the operation of its law”.

Which leads to the question of what law, and your Honours have our submissions in relation to that.  In that case your Honour correctly pointed out that the applicant’s status took him outside the meaning given to the term “alien” in the joint judgment in Nolan, which was picked up again in terms by the joint judgment in Singh, but your Honour did not there decide in Al‑Kateb the question of whether this meant that he was an alien.  Your Honour the Chief Justice did.  The majority judgment in Singh at paragraph [190] said that stateless persons were always alien. 

Your Honours, I do not put this on the basis that anything turns on this for relevant purposes, but a significance of the recognition re statelessness is that it appears to be a clear example of the constitutional power being held to be applicable to a phenomenon that was not truly identifiable becoming part of the scene until the 20th century.  Your Honour’s discussion in Al‑Kateb at paragraph 80 refers to that and refers to the fact that in Weber in the early part of the 20th century there was denial of the ‑ ‑ ‑

GUMMOW J:   Yes, but they had faced up to it by the time of Stoeck I think.

MR KENZIE:   They did, your Honour, and I am grateful for that reference.  If there is anything we need to add, we certainly will.  Your Honours, all that we say is that it has not been put against us by the respondents that the applicants are stateless.  We seem to be in accord.  Our submissions in paragraphs 85 to 88 and earlier at paragraphs 61 to 62 identify those constitutional provisions which have relevance, we say, to the applicants.  They are not an answer if some characteristic of alienage is identified, but they are not irrelevant to the question of whether we are stateless, in our submission. 

Finally, your Honours, we refer at paragraph 90 to the Baxter Case where your Honour Justice Hayne refused a rule nisi.  Your Honours, we have distinguished in paragraph 90 the case.  Of course, in that case your Honour was actively asked to determine that the child was stateless and what your Honour did was, firstly, to decide that he was not stateless because he owed allegiance or was associated with Afghanistan and, secondly, your Honour said, in any event, that really would not help you, the ladder you are trying to climb.  If you got there, you would be faced with Al‑Kateb and you would be faced with paragraph 190 and your Honour refused to grant a rule nisi.  Having regard to the basis on which the matter was advanced, that would have been an entirely unsurprising result because the authority of the Court would have supported that conclusion entirely. 

Here, we submit, not as per the submissions in Baxter, but we are not stateless for reasons that we otherwise rely on and we are not able to be grafted onto the category in paragraph 190 of the joint judgment so as to give rise to the conclusion that we are stateless and therefore an alien.  We do not have that characteristic and are not an alien.  Your Honours, we, our clients, were born here – an insufficient answer in itself.    There is no constitutional provision that would provide assistance to the respondents in categorising us as an alien. 

It was said I think in debate in Singh that section 44(i) was a pretty useful tool in helping to decide who was an alien. Section 44(i) was useful because it is said that there was a focus on allegiance to a foreign power. We do not have that characteristic. There is no other constitutional provision that assists in the way that the Constitution did in Singh in associating Singh with the concept of alienage.

GLEESON CJ:   Mr Kenzie, I am sorry to have to ask you to repeat this, but what was the reason you gave for the conclusion that your client is not stateless?

MR KENZIE:   We assert that our client is not stateless because our client has the characteristics that were identified, amongst other characteristics, in Potter and by Justice McHugh.  Not characteristics that were relevant to the determination in that case because other alienage characteristics existed, but our client is a member of the ‑ ‑ ‑

GUMMOW J:   You seem to be saying she is an Australian citizen.

MR KENZIE:   Your Honour, before the introduction of the citizenship legislation our client would not have been stateless. Our client’s character as a stateless or non‑stateless person did not rise or fall on whether her citizenship was attained under the Citizenship Act. Our client has the same rights in 2006 as someone in their position would have had in 1947.

GLEESON CJ:   I am sorry.  You disavow as the explanation of the proposition that your client is not stateless her rights in relation to Fiji.  If you put those rights to one side, could you just state in a summary form what are the circumstances upon which you rely for the conclusion, which appears to be common ground, that your client is not stateless?

MR KENZIE:   Our client is a member of the Australian community and would have been contemplated by the provisions within the first preamble, covering clause 5, as one of the people of the Commonwealth, a person who would be eligible to ‑ ‑ ‑

HEYDON J:   You are relying on paragraph [133] of Justice McHugh’s reasoning in Singh?

MR KENZIE:   Yes, your Honour.

GLEESON CJ:   She is a member of the Australian community because she was born in Australia.

MR KENZIE:   She is a member of the Australian community.

GUMMOW J:   But what does that have to do with it?  The concept of statelessness is an international law concept and the Conventions ask the question:  is this person considered a national by any State?  By what State is your client considered a national?

GLEESON CJ:   Everybody is born somewhere.

MR KENZIE:   Yes.

GLEESON CJ:   There would be no stateless people on your approach, would there?

MR KENZIE:   No, your Honour.  The concept of statelessness arose because people were born and had associations with places.

GLEESON CJ:   Your client is not stateless, you say, because she was born in Australia?

MR KENZIE:   Yes.

GLEESON CJ:   Well, you will tell us after lunch whether that would apply if she had been born on a Qantas aeroplane anywhere in the world.

MR KENZIE:   Yes, your Honour.

GLEESON CJ:   We will adjourn until 2.15 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ:   Yes, Mr Kenzie.

MR KENZIE:   Thank you, your Honour.  If it please the Court, we have taken instructions over the adjournment.  For our part we have no objection to Justice Callinan’s participation on the basis indicated.

GLEESON CJ:   Thank you, Mr Kenzie.

MR KENZIE:   We have also, over the adjournment obtained and provided to the associates copies of section 5(3) of the Citizenship Act in answer to the question raised by your Honour the Chief Justice just before the adjournment.

GLEESON CJ:   Thank you.

MR KENZIE:   I do not know that your Honours need to go to the text but it provides that:

a person born on a registered ship or aircraft shall be deemed to have been born at the place at which the ship or aircraft was registered –

and then there is provision for an unregistered ship or aircraft and that is designed, obviously, to be read in conjunction with section 10 and is an extension to the provisions in section 10 as to where you were born.  There cannot be any constitutional issue about those matters because, regardless of whether the person added to the category of citizenship as a result of such sections is an alien or not, there is no barrier to the Parliament passing an Act which adds them effectively to the Australian community.  It would not be an argument that the effect of that would be to add, for example, constitutional aliens to the community because the relevant power is not confined in relation to the aliens power.

GLEESON CJ:   It is naturalisation.

MR KENZIE:   It is naturalisation, precisely, so it is two different things.  The question of the Constitution of the Australian community is one thing and the question of whether you can be removed from the Australian community as an alien is another question, so an alien could be introduced as a person who retained their allegiance to a foreign power and the like. 

Your Honours, I had given before the adjournment the Court a reference to our submissions in relation to the question of whether we claimed constitutional citizenship in the sense discussed in the minority judgments in Singh.

KIRBY J:   It is probably safer to call it constitutional nationality because citizenship is not there except in the Sue v Hill Case and it was specifically rejected by the founders.

MR KENZIE:   Well, yes, your Honour, I had in mind ‑ ‑ ‑

KIRBY J:   Against the background of the American express reference to citizenship.

MR KENZIE:   Yes, I had in mind also that Justice McHugh after Singh decided the case of Hwang and in Hwang there was a challenge to the Act which his Honour dismissed and he dealt again in Hwang 80 ALJR 125 – I was not going to open it – to similar issues. His Honour discussed that in terms of the concept of citizenship which is why I used the expression. It may be a dangerous thing to do in the circumstances of this case, but nonetheless, that is the way his Honour approached it.

Your Honours, the only other matter is this.  In dealing with the submissions before about the inappropriateness of taking the potential for obtaining some attachment to Fijian nationality into account in determining the constitutional application, I referred, for example, to the corporations power and it just occurred to us over lunch, in the Incorporations Case 169 CLR 482 the Court dealt with the question of the capacity under section 51(xx) to deal with the position of a not yet formed corporation. It is not a completely analogous situation because of the word “formed” in 51(xx) of course, but the point that I was making, at least in that context ‑ ‑ ‑

GUMMOW J:   They said “formed” was a past participle.

GLEESON CJ:   Past participle obviously.

MR KENZIE:   Yes.

GLEESON CJ:   It does not cover formation.

MR KENZIE:   No, that is right, but they did go on to say that the power conferred by (xx) to make laws with respect to artificial legal persons is not a power to bring into existence an artificial legal persons upon which laws made under the power can operate.  It is not, on all fours, I readily concede because of the work but it is the concept that I was addressing, your Honours.  Those are the matters.

GLEESON CJ:   Thank you, Mr Kenzie.  Yes, Mr Solicitor.

MR BENNETT:   If the Court pleases.  There are two issues in the case I need to address.  The first is the positive characteristics argument and the second is the statelessness argument.  I expect to be fairly brief in both.

In relation to the positive characteristics argument my friend repeatedly refers to the question in the case as being whether his clients are aliens and what is the characteristic that we say gives them that characteristic.  Your Honour, we submit that that is simply the wrong question.  The question is whether the applicants are within the class of persons as to whom Parliament is entitled to determine that they are aliens.

Your Honour, we submit, that that is made clear by Singh 78 ALJR 1383. The simplest and clearest exposition of the proposition for which I contend is contained in paragraph [4] of your Honour the Chief Justice's judgment. Your Honours have it I see. In paragraph [4] your Honour says this:

I have previously stated my view that, subject to a qualification –

that is the Pochi qualification –

Parliament . . . has the power to determine the legal basis by reference to which Australia deals with matters of nationality and immigration, to create and define the concept of Australian citizenship, to prescribe the conditions on which such citizenship may be acquired and lost, and to link citizenship with the right of abode.  In that regard, Brennan, Deane and Dawson JJ said in Chu Kheng Lim v Minister for Immigration, that the effect of Australia’s emergence as a fully independent sovereign nation with its own distinct citizenship was that alien in s 51(xix) of the Constitution had become synonymous with non-citizen.

Then your Honour deals with the qualification in Pochi -

that Parliament cannot, simply by giving its own definition of “alien”, expand the power under s 51(xix) to include persons who could not possibly –

and we stress the word “possibly” –

answer the description . . . Within the class of persons who could answer that description –

and we stress the word “could” –

Parliament can determine to whom it will be applied, and with what consequences.  Alienage is a status, and, subject to the qualification just mentioned, Parliament can decide who will be treated as having that status for the purposes of Australian law and, subject to any other relevant constitutional constraints, what that status will entail.

KIRBY J:   But in order to answer the question “who could not possibly”, you have to have some concept of who could possibly.  It is the other side of the coin.

MR BENNETT:   Your Honour, a person who could not possibly answer the description of an alien would be a person born in Australia to Australian parents.

KIRBY J:   Such persons in other countries have been derecognised.  The thing in this area is every new case is another step, and the question is how far do the steps go and where do you in general terms draw the line?

MR BENNETT:   Your Honour, it has been said on numerous occasions that one does not quail from taking a step because of fanciful and unattractive extreme consequences that might flow in the future.  We would submit that a ‑ ‑ ‑

KIRBY J:   I am thinking of the people in France who are of Jewish origin who were successively removed from nationality.  I mean, at first it was the people who had come as refugees to France before Vichy and then it was anybody in France.  We just have to keep our eye on the horizon in this place.

MR BENNETT:   We are no closer to the horizon if we acknowledge that the limit on the power to define who is an alien is reached when one says a person born in Australia to Australian parents.  We are not talking about taking away citizenship in this case.  This is not an Ame Case.  This is ‑ ‑ ‑

KIRBY J:   Well, the applicants are born in the country and they are not now or yet citizens of another country, therefore they say, put those two things together and that gives us a threshold, which is a step further than Ms Singh had.  She was born in the country, but it was apparently accepted as common ground in the case – I was not so sure – that she was a national of India.

MR BENNETT:   Your Honour, my argument in Singh did not depend on that, although that was picked up by several of the judgments.  Our argument was very simply, as we say was at least for present purposes sufficiently accepted, that there were the two theories in 1900 and that as long as one did not violate the Pochi limit, as long as one had either jus soli or jus sanguinis or some combination of them, the choices within that area were for the Parliament.  The choices outside that area, if one were to say we are going to say that all people of particular grandparentage or great grandparentage are aliens, may well not be within the power.  That may fall within the Pochi exception.  But this case is squarely within it because one has one of the two elements and not the other.  These applicants have the jus soli and not the jus sanguinis, and we say that is squarely within what Parliament can do. 

If I can just show your Honours what the joint judgment said on this subject, the clearest reference is at paragraph [197].  Before going to that may I just say this, that one thing that is made clear again and again in the joint judgment is the point which we make very strongly that in 1900 there were two theories abroad, abroad in both senses, and there was no fixed idea in the minds of lawyers as to what allegiance and its converse alienage encompassed as between jus soli and jus sanguinis.  Having said that, at paragraph [197] their Honours said this:

Argument in the present matter proceeded on the footing that the power also extends to making a law identifying the circumstances in which, and the procedures by which, a person who is not an alien may sever the ties of allegiance to Australia.

So that is, in effect, a national becoming a non-national. 

Given the state of British law at the time of federation . . . it would be surprising if the power with respect to naturalisation and aliens did not extend this far.  But, if the power extends to regulating renunciation of allegiance, the power extends, at least in this respect, to altering the criteria which are to determine whether the necessary connection between the individual and (to personify the concept) the Crown exists.  Yet it is central to the plaintiff’s case that, at least in the case of a person born in Australia, this criterion of connection is to be unalterable.  That is, it is central to the plaintiff’s case that the status flowing from birth within Australia cannot be altered except at the will of the individual –

and then they go on to reject that.  So, your Honours, we would submit that the joint judgment and the Chief Justice, at least, accept that it is because of the existence of the two theories in 1900 it is open to Parliament to choose between them and to deal with matters arising for determining who is and who is not an alien by reference to the various possible criteria.  It would be open to Parliament to say, “Let’s just have the jus soli”, it would be open to say, “Let’s just have the jus sanguinis”, or to have what we have in section 10 which is a partial adoption of each, in each case with some qualifications. 

In my respectful submission, that is the answer to the applicant’s contention that one must point to some characteristic which makes one an alien.  If one did need to do that, of course, we have a very simply one here.  We say there are two possible characteristics, where you are born and who your parents are, and one of them points to alienage – end of case.  We do not need to say that because we do not need to find positive characteristics, but that is how we would answer that rhetorical question my learned friend puts. 

KIRBY J:   Is that quite right?  Do you not as the Solicitor for the Commonwealth have to justify legislation which is challenged?

MR BENNETT:   I am justifying it, your Honour.

KIRBY J:   And does that not require you to point to positive characteristics that bring the present applicants into the constitutional category of aliens?

MR BENNETT:   Well, your Honour, I do it by the negative process, but I can do it by - to the extent that I have to, I would do it, but I make the answer I just gave.  Their parents are not Australian citizens.  That is one of the two possible criteria for allegiance and, by converse reasoning, one of the two possible things which would take you out of it into alienage, birth overseas ‑ ‑ ‑

KIRBY J:   There are of course many people who are Australian citizens whose parents are not Australian citizens or nationals.

MR BENNETT:   Yes, they may have been naturalised.

KIRBY J:   Normally by naturalisation.

MR BENNETT: Yes, or by adoption. There is a series of routes in the Citizenship Act which get one there. But the point we make is that, so long as one is within the – and I hesitate to use the word “penumbra” because it seems to raise some concern on the other side of the Bar table – but as long as one is not within the extreme type of case postulated by Chief Justice Gibbs in Pochi, as long as one is not a person who could not possibly be an alien, it is up to Parliament to decide, and Parliament decides bearing in mind that at the time of Federation there were two approaches to allegiance, one based on the jus soli, one based on the jus sanguinis.  What Parliament has done is to take a compromise course between those two and said, “Well, you’ve got to have elements of both”, in effect.

GUMMOW J:   Do we not have to know who could not possibly be?  What is the content of that phrase.

MR BENNETT:   Well, the simple content, your Honour, is a person who is born in Australia to Australian parents.  It is the simple case of a person who could not ‑ ‑ ‑

GUMMOW J:   But is that an example or a boundary?

MR BENNETT:   Your Honour, it is probably co‑extensive with the class.  It is hard to see who else would fall within the class.

HAYNE J:   Well, is not the essence of the proposition first put that the aliens power includes the power for Parliament to determine what elements of place of birth and descent are to be taken as marking out alienage?  If that is the first proposition, the second proposition, the so‑called Pochi example, is wholly exhausted by the example given, I think.  The two seem to run together, I think.  Now, it may be important to know whether you embrace that or reject it, Mr Solicitor.

MR BENNETT: Your Honour, I am only concerned about the first part of your Honour’s proposition that one’s criteria are in some way limited to those two things. One could include, for example, “and a person who does not owe allegiance to a foreign power” in a Citizenship Act. One could preclude dual nationality, as was done when Papua New Guinea was created and a view expressed that a man cannot have a foot in two canoes.

GLEESON CJ:   Are there places in the world where even a person who is born there of local parents has to, when attaining maturity, swear allegiance or make some positive act?  I just wondered whether the theories of jus soli and jus sanguinis exhaust nowadays or ever exhausted the criteria that are applied among nations.

MR BENNETT:   Your Honour, certainly Kuwait has rules about Palestinians which are referred to in Al-Kateb.  There may be countries which have racial limitations in some way which affect it.  There also are countries – and I suppose it is controversial in Australia – which may have the power to take away citizenship, for example, for treason or things like that.

KIRBY J: I was going to ask you that. Could one have a case in your submission of the Constitution in which, though a person was born in Australia and was on the current Citizenship Act a citizen, a law could subsequently take away their citizenship because of their blood or because of their place of birth or some combination of the other?

MR BENNETT:   Your Honour, that is not a question which we need to answer today.

KIRBY J:   We have to test your proposition of the extent of the constitutional power.

MR BENNETT:   Your Honour, my proposition does not need at all to deal with the question of taking away citizenship, which may well be a different question.

KIRBY J:   On the applicants’ submission it does because she says, “Born here, no allegiance to another power.  I am therefore a constitutional national and you’re trying to take me out of that category”.

MR BENNETT:   Your Honour, there is a difference between taking someone out of the category in the sense of saying you never entered it and ‑ ‑ ‑

KIRBY J:   But that is only a statutory difference; it is not a constitutional difference.

MR BENNETT:   No, your Honour, it is a difference, with respect.  There is a difference between defining what people are and are not Australian citizens and between saying, “You, a person who is an Australian citizen, we will take it away from for one reason or another”.  The two things are quite separate.  There are different considerations in relation to them.  The second just does not arise in this case.  It arose in Ame and it was held there that the taking away of citizenship could be done under the territories power as incidental to a Territory becoming independent.

KIRBY J:   But that was only pretend citizenship.

MR BENNETT:   It was, your Honour, and that was part of the ‑ ‑ ‑

KIRBY J:   That was part of the strength of your case in Ame that it was always treated in a very separate and different way.

MR BENNETT:   The ratio did not depend on that, your Honour.  That was a factor in construing the PNG Constitution where they had recognised the form of Australian citizenship that was given for what it was and they had this phrase, your Honour recalls, of real foreign citizenship as opposed to that type of foreign citizenship, but the ultimate case did not turn on that.  The ultimate case turned on the fact that under the territories power it was incidental to the territories power to give a Territory independence and denaturalise its citizens so they could become citizens of the new country, as had been done in virtually every country of the Commonwealth on its obtaining independence.  So in a sense the case does not help because it was not done under the aliens power.

The question of determination of citizenship is quite different to this case. We do not say for a moment, and it would not be correct to say, that any Act of Parliament has taken away something which the applicants otherwise had. The question is whether they ever got it, that is the issue, and whether birth entitles them to that non‑alien status under the Constitution or not, that is the issue, but it is not correct to say that something was taken away, something a person had was taken away. It either was given or it was not. It is no part of anyone’s case to say that a millisecond after birth the child lost its Australian citizenship. No one says that. No one characterises it that way. So the issue just does not arise, your Honour, this issue of taking away citizenship.

KIRBY J: The suggestion is, as I understand it, that section 10(2) of the Citizenship Act, formerly called the Nationality Act, does purport to take away a constitutional status of Australian national and to that extent is invalid.  That is how, as I understand it, the applicants are putting their case.

MR BENNETT:   Not to give a person something is not to take it away, your Honour.

KIRBY J: This notion of give is very top down. It is not a bottom up notion of citizen or Australian nationality that people have as a right, which is arguably what the Constitution envisages.

MR BENNETT:   Well, that is what was put in the dissenting judgments, your Honour, in two of the dissenting judgments.  But it cannot be equated to taking something away, your Honour, it simply cannot.  If we are right, the applicants never became non‑aliens.  If they are right, they always were non‑aliens.  On no one’s view was there a change of status and one only gets there by making a pun, in effect, and saying, “You are taking away what I otherwise would have been entitled to, therefore, you are taking something away from me”.  That is really a pun.  It is not a correct legal analysis of the situation.

HAYNE J:   To return to the proposition I put to you, Mr Solicitor, does this more accurately cover your position?  Step one is that the power under 51(xix) includes but, you would say, is not limited to the power to decide what elements of place of birth and descent are used to mark out aliens?

MR BENNETT:   Yes, your Honour.

HAYNE J:   The second step in your position I understand would leave open such questions as removal of national status, whether by way of penalty, which has happened in various national systems, or for other reason, as again has happened in various other national systems, as, for example, enlisting in foreign armies, absenting yourself from the country for periods, et cetera.

MR BENNETT:   Previously, your Honour, accepting an obligation of citizenship to a foreign power.

HAYNE J:   That is perhaps the clearest example, but recognising step two, can you give any case other than the born here, descended from Australians that is the subject of the Pochi qualification?

MR BENNETT:   No, your Honour.  I cannot.

KIRBY J:   Does it have to be born of both parents who are Australian citizens, statutory status?

MR BENNETT:   There may be a grey area in relation to a person who has one parent Australian and is born in Australia or that may not be a grey area and that may fall within the Pochi qualification.  That is a matter for this Court to decide at some future date, no doubt. 

HAYNE J:   One would be day and one would be night, would it not, Mr Solicitor, no doubt.

MR BENNETT:   It might well, your Honour, but this case is a very clear case because this case with the two principle criteria, one points one way, one points the other.  What clearer case could one have for being able to say that is within Parliament’s discretion?  That sentence, if one likes, is really the core of my argument, the beginning and end of the case.  It is the clearest case one could have for what is left of the Parliament, the half and half case. 

It does not depend at all on the issue of the nature of Fijian law in relation to someone in the position of the applicants.  We do not make any submissions about that except to say, of course, that in light of Singh the possession or the possibility of possession of foreign nationality may well be something that brings one into the penumbra in relation to which Parliament may legislate.

Now, that has to be subject to the Pochi exception so I suppose if another country says, “If your great grandparents are citizens of our country you are a citizen” that fact would probably not be one which could be relied on by the Parliament in taking an Australian‑born child of Australian citizens out of Australian citizenship and into alienage but that is, again, a question for the future.  I do not make it as a formal concession but as a matter of argument that would probably be on the wrong side of the line.

GUMMOW J:   But your submission encompasses a situation where persons born here will be stateless.

MR BENNETT:   Yes, your Honour.

GUMMOW J:   Is the Constitution to be interpreted in a way that encourages that?

MR BENNETT:   Your Honour, there is a number of answers ‑ ‑ ‑

GUMMOW J:   It is universally regarded in international law as something to be regarded ‑ ‑ ‑

MR BENNETT:   Yes, I was coming to that.

GUMMOW J:    ‑ ‑ ‑ with horror.

MR BENNETT:   I will go ahead to statelessness ‑ ‑ ‑

GUMMOW J:   We are a party to a convention designed to fix it up.

MR BENNETT:   Yes. Your Honour, section 23D of the Citizenship Act does so. That is perhaps the first matter. That says that in certain circumstances which may or may not be co‑extensive with the international norm of statelessness, certain provisions operate.

GUMMOW J:   Is 23D designed to implement Article 1 of the Convention on the Reduction of Statelessness?

MR BENNETT:   I understand so, your Honour, but I am not certain of that.  One would assume so.

GUMMOW J:   Well, 23D was added in 1973 after we had adopted it, I think, the Convention.

MR BENNETT:   That would certainly support that. Section 23D(1)(a) may well have particular relevance in relation to provisions such as those in Fijian law. My learned friend seems to define statelessness by reference to 23D(1)(a) and (b), ignoring 1(c) and 1A but it is not necessary. The way my learned friend treats statelessness is a rather narrow one. He looks at Singh and says if you are a citizen of a foreign country you are an alien and he looks at paragraph [190] and says if you are stateless you can be an alien. 

He then says his clients are not stateless in one sense and, therefore, he sees statelessness as something positive which takes you into the category of alienage.  Statelessness, of course, is the conclusion, not the step along the way.  It is the result, if one is held to be an alien, and does not have any other relevant allegiance.  Statelessness is not itself a positive attribute which takes one into some particular category.

GLEESON CJ:   You mean to describe somebody as “stateless” is to announce a conclusion about the subject of alienage?

MR BENNETT:   Yes, your Honour.  The meaning of paragraph [190] is, in a sense, the same sort of negative.  What it is saying is that foreign nationality is not the only way you can be an alien.  If you do not have Australian nationality and do not have anyone else’s nationality, you are also an alien, but one still has to examine the question to get to the conclusion.

That is illustrated beautifully by the way my friend answered the question that your Honours asked him at the very end of his argument where he said, “The reason we’re not stateless is that we’re Australian”.  That was, in effect, his answer.  His answer, in a sense, begs the question of his case.  He says because his clients are born here they are incapable of being aliens.  What he is really saying is that you cannot be stateless if you are born in Australia.  We would submit that is ‑ ‑ ‑

KIRBY J:   I thought he particularly disclaimed that.  He said that birth alone is not enough but if you add other ingredients you can lift yourself into constitutional nationality and then rightly claim Australian nationality which you cannot turn by federal legislation into alienage.  He did specifically say he accepted the principle in Singh that birth alone is not enough so you cannot suggest that he did not say that because he did.  Inherent in the logic of his claim is that he is an Australian constitutional national and, therefore, he is not stateless.

MR BENNETT:   Yes.  We rely on the passages I have taken your Honours to in Singh and also they were explained very clearly, we would submit, by Justice Hayne in A269 of 2003.  That is the number in this Court.  It is an unreported decision which I think your Honours have.

HAYNE J:   I do not know what virtue you are going to get out of a single Justice decision acting, at least assumedly, in obedience to what is seen as the holdings of the Court, Mr Solicitor, but there you are.

MR BENNETT:   I get two things out of it, your Honour.  First I get a strong persuasive authority in my favour and, secondly, I call in aid the conclusion your Honour draws from the joint judgment and as to the meaning of it.

KIRBY J:   What is the citation?

MR BENNETT: It is unreported, your Honour, but the number in this Court is A269 of 2003. The decision seems to have been ex tempore and it was delivered on 13 December 2004. I am told there is one of these new computer citations: [2004] HCATrans 570. I assume “Trans” is transcript. It is not a citation of a type I have seen before. After referring to paragraph [190] of the joint reasons in Singh, at line 1070 his Honour says this – I am sorry, after also referring to the passage at paragraph [200] about the central characteristic of alienage being owing obligations to a sovereign power, his Honour says:

But that that is the central characteristic of the status of alienage does not deny the proposition which otherwise underpinned the decision of at least a majority of the Court in Singh that the aliens power in section 51(xix) extends to authorising sections 189 and 198 of the Migration Act in their operation to the infant children of unlawful non‑citizens who are born in Australia, even if the infant child, thus born, were to be shown to be a person who is stateless.

In other words, his Honour, we would respectfully submit, correctly interprets the majority in Singh, the joint judgment plus the Chief Justice plus your Honour Justice Kirby, as deciding that the aliens power extends to dealing with a person born in Australia who would, as a result of the way Parliament deals with that person, become stateless, in other words, a person whose only connection with Australia is birth but who does not have the Singh connection of foreign nationality.  One can set up a dilemma in relation to the Fijian provisions.  Either they bring the applicants into the Singh area by analogy to foreign nationality or they are insufficient to prevent what would otherwise be statelessness which is within what the passage I have just cited shows.

GLEESON CJ:   If you do not accept that the applicant in Singh was an Indian citizen by descent, what is the difference between this case and Singh?

MR BENNETT:   None, your Honour, except one other factor, and that is this.  I have expressly refrained, and I do refrain, from making any submissions about the effect of Fijian law in this case.  The way we put it is this, that there are many countries, of which Australia, India and Fiji are but three, which recognise the jus sanguinis but impose some requirement:  that requirement where the person is born overseas to local nationals.  That requirement may be, as in the case of Australia, registering the birth at the nearest Australian Consulate.  It may be a requirement that one registers or notifies within some further period at home.  It may be a requirement that one subjects oneself to some administrative procedure with or without discretionary powers.  It may even involve a judicial procedure with or without discretionary powers.  There are a range of degrees as to what can be required. 

What we say is that illustrates that the penumbra, if one likes, may need to be wide enough to enable Parliament to legislate to deal with those specific situations. It has done so partially in section 23D, but of course section 23D assumes the first steps and simply provides for a naturalisation at a later stage. It was using the naturalisation limb rather than the aliens limb, but it could have been done by using the aliens limb. Parliament could have enacted a version of section 23D as part of section 10 dealing with when one gets or does not get citizenship at birth by reference to the nature of exactly what the requirements of the foreign jurisdiction are.

It is simply an indication of why one needs to have that sort of power and why that sort of provision has to be within a penumbra, but here we do not need to get involved in any of that because the answer my learned friend gave at the end of his submissions, which was that the reason his clients were not stateless is that they have Australian citizenship, that answer taken with his concession that if they were stateless it would be open to Parliament to say that they were aliens, must indicate that he is submitting that if you were born in Australia you cannot be stateless.  That has to be his ultimate submission, otherwise the two propositions cannot both stand.  Your Honour, we would submit that is inconsistent with Singh as interpreted by Justice Hayne in A269.

KIRBY J:   I am not sure that that is his submission.  I thought it was born in Australia plus not being a national of a foreign power and owing allegiance to that power.

MR BENNETT:   Well, that is a negative, your Honour.

KIRBY J:   In this case there is that extra step of seeking to register for citizenship in Fiji, and that, as I understand Singh, was not a factual component in that case because it was accepted by the majority that there had been common ground that Ms Singh was by law and as of right a citizen of India.

MR BENNETT:   Yes, automatically in that case.

KIRBY J:   Automatically, and that is said to be the point of difference from this case, that the present applicants could perhaps apply and might perhaps get nationality or citizenship of the Fiji Islands, but she is not as of right and now and yet such a citizen.

MR BENNETT:   Well, your Honour, my friend could only say that if he treats not having foreign nationality as some sort of positive characteristic which – and, your Honour, that simply is not the case.  Singh establishes, among other things, that the Parliament is free to treat people who have foreign nationality as aliens.  As I said earlier, one wonders how far that would go if one had foreign nationality conferred on an extreme and tenuous basis on people who were otherwise Australian citizens, but we do not need to deal with that.  That is not the problem in this case.

The problem here is very simply, where the only positive connection with Australia is birth and the effect of not conferring citizenship on the person would be the statelessness within one or other of the meanings of the word, in fact, in this case possibly within one, possibly not within another, and possibly depending on the status of Fijian law in or not in on a third view – I should make that a little clearer.  If one defines statelessness as simply not having a nationality, then these applicants would become stateless.  If one defines it as not having any entitlement to apply for any nationality, then there would not be.  If one takes a middle situation ‑ ‑ ‑

GUMMOW J:   Or, for example, what you last said is the view expressed in 23D(1)(c).  In other words, you cannot register as of right here under 23D in implementation of the Convention if you are entitled to acquire citizenship of a foreign country.

MR BENNETT:   Yes, your Honour, and we make no submission on whether the applicants are within or not within that category.  That has never been an issue in this case and we do not rely on that.  But there may or may not be and it would require a day’s hearing and experts on Fijian law and construction of Fijian statutes and looking at their rules about “may” and “shall” and a whole lot of things like that.

GUMMOW J:   It is not an unimportant question though, is it, because if she is not a citizen or may not be entitled to citizenship of the Fiji Islands she could then end up a stateless person on your theory of our constitutional arrangements despite her birth here. 

MR BENNETT: That is possible, your Honour. Section 23D(1)(a) might be the more relevant provision if an application were to be made, might or might not be when one is speculating, but the matter has been dealt with by the Parliament.

GUMMOW J:   But they are cumulative.

MR BENNETT:   Yes, but the section clearly contemplates that the person is born in Australia, has never been a citizen of any other country and then one has the provisions dealing with the more complex intermediate situation.  But no such application has been made, as I understand it, and if it were made, no doubt those matters would be considered at an appropriate time.  We submit the effect of Singh, as explained by A269 and for the reasons given in A269, is clearly that it is within the powers of the Australian Parliament to say that if you are born in Australia of foreign parents, but there is no foreign provision giving you jus sanguinis citizenship, then it is open to the Parliament to determine whether or not you get Australian citizenship.

It can do that either by saying you do not or by saying you do or by saying, as it has done, you do not but you can apply and these are the criteria on which we will decide whether you are entitled to it or not.  That is within the area which, we submit, is squarely being left to the Parliament.

For those reasons, we would submit, the statelessness argument does not assist my learned friend.  The short point is that if being born in Australia or having Australian parents are two possible criteria, if a person has one and not the other, that is squarely within the area in which Parliament may legislate to determine whether or not you are an alien.  We rely heavily on the formulation by the Chief Justice in paragraph [4] and, we submit, adopted in the joint judgment in the paragraph I have taken your Honours to at paragraph [197].

HAYNE J:   Just before you depart, Mr Solicitor, are we to decide the application on the assumption that, so far as the record reveals, 23D has not been engaged and no application has been made to engage it?

MR BENNETT:   Your Honour, I am just confirming that no application has been made.  That is certainly my understanding.

GUMMOW J:   This was a question reserved for the Full Federal Court, was it not?  I am just looking at the questions on page 7, question 2 – I know it is easy to complain about the frame of questions – but 198 would not apply, would it, if an application under 23D was bound to succeed?  One would not want to foreclose it – you see what I mean?

MR BENNETT:   Your Honour, there are procedures in the Migration Act that deal with people who have pending proceedings of various kinds and there is some law on the question of when the Federal Court’s general powers in relation to interlocutory injunctions can achieve the same result.

HAYNE J:   But question 2 being framed in terms of 198 masks the underlying question, which I put to your opponent, which is an underlying question about the valid operation of the Australian Citizenship Act.  I put it to him that the relevant question concerned 10(2).  At least a possible point of view is that the relevant question concerns the valid operation of 10(2) as understood in the light of Parliament’s provision in 23D for the case of the person born in Australia who is not entitled to obtain citizenship of another country. 

MR BENNETT:   Your Honour, if there were some constitutional bar to rendering a person stateless, no doubt I would need to rely more formally on section 23D to save the provision. But the ultimate question, I accept your Honour, is the validity of section 10 rather than the validity of sections 189 and 198. Sections 189 and 198 are the circumstance in which section 10 has operative effect but the ultimate operative effect, so far as the applicants are concerned, is of course 189 and 198 and they only apply if the person is an alien and that takes one back to section 10 of the Citizenship Act.

My learned friend can put it in one of two ways.  He can say, “I am not a person who is capable of being declared by the Parliament to be an alien, therefore I am not an alien, therefore 189 and 198 don’t apply”, or he simply can say, “I am not an alien”.  We say, “Yes, you are, section 10”.  He says, as it were by way of replication, “That provision cannot have the effect of making me into an alien”.  Either way, ultimately one gets back to section 10.  It probably does not affect the argument either way.

GUMMOW J:   Yes, but I can see the circumstance arising whereby an injunction was sought to protect the possibility of an application under 23D.

MR BENNETT:   Yes. 

GUMMOW J:   It is awkward to get into that given the frame of these questions.

MR BENNETT:   Well, your Honour, there is the doctrine that the Court has the power to preserve the subject matter of the action and to give appropriate injunctions and to enable that to be done.  There is some law on that under sections 189 and 198 in other contexts and I think the Migration Act itself has various provisions about pending proceedings.  I have not checked the extent to which that might include pending proceedings of this type, but no doubt the ‑ ‑ ‑

GUMMOW J:   In a way the real significance of 23D at a forensic level is that it shows there is not this black hole under Australian law.

MR BENNETT:   Yes, that is its forensic significance, your Honour.  It is probably not a constitutional significance, but it illustrates the central point which is that ‑ ‑ ‑

GUMMOW J: Section 23D itself is a law with respect to aliens and citizenship, is it not, and naturalisation?

MR BENNETT:   Yes, your Honour, and it illustrates that because of the range of provisions dealing with jus sanguinis that one finds in foreign countries it is appropriate to regard questions of this sort as within the ability of Parliament to deal with, either by laying down criteria for when one does or does not get Australian citizenship or by making criteria for when one has a right to acquire it if one does not have it initially.  They are simply different ways of attacking that problem.  Those are my submissions, your Honours.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Kenzie.

MR KENZIE:   Thank you, your Honour.  Your Honour, in our submission, in relation to the first question addressed by our learned friend, namely the question of the penumbra again, our friend is, in our respectful submission, really attempting to re‑agitate the submissions that he agitated in Singh itself.  He has pressed again the notion that there is in truth a core.  He identifies that core as one which, although I think he got to the stage of acknowledging that there were grey areas, involved being born in Australia to Australian parents, but that is a rubbery core.  That does not guarantee that there was immunity from alienage.  In that core there can be persons who have allegiance to a foreign power.  It is not a core of any sort at all.  Our friend’s core is only a reminder that, in order to determine alienage, it is necessary to look at the circumstances of a particular case. 

Now, my friend referred to various aspects of Singh.  He has not addressed those pointed and consistent aspects of the joint judgment in Singh which rejected that submission as an appropriate way forward.  He has not addressed that.  He has pointed to paragraph [197], but that was a paragraph that was addressing an issue that was run in Singh that we did not run in this case.  It was addressed to the question of what happens when the applicant said, “There is a positive characteristic that I’ve got that makes it impossible for me to be an alien”.  The Court rejected that.

The Court went on to decide the matters in the way that we indicated as best we could in our submissions this morning and that indication included what the joint judgment said in paragraph [144] in relation to the issue of parentage, none of which our friend has addressed in his submissions, but he has re‑agitated the question.  Our submission is that an approach to this issue on the basis of what constitutes a core and the rest of it does not need to be examined is not an appropriate way to deal with the constitutional question, and nothing that has arisen in the case today has changed that situation.

Your Honours, secondly, in relation to what happens when you get to the second question, our friend’s position, as we understand it, is that the Parliament is at large in relation to the combined – a choice in relation to what it does in relation to the jus sanguinis and the jus soli.  If the Court accepts that, the only submission I have made about it – I have made two submissions about it.  I have submitted that that goes beyond anything that emerged from Singh and it is a very large submission because it carries with it the conclusion that there are very large people who are subject to the categorisation of aliens in this country.  It has not been accepted ‑ ‑ ‑

KIRBY J:   We decided that there was such a very large person, or the Court decided it, in Shaw.  They were a million people or 900,000 or so.  This is an immigrant country, so every decision on the borderline is significant and it does not prove anything.

MR KENZIE:   No, your Honour.  My point was that the case that is advanced here is essentially the case that was advanced in Singh and it achieved the result it did, at least so far as the joint judgment was concerned.  That did not carry our friend to the length that he needed to go and that is because the Court did not accept the fullness of his submission.  If we are wrong about that, we are wrong about that and the aliens power is indeed wide.  The Court has our submission in relation to it.

Your Honours, I can confirm that there has been no application under section 23D of the Act. It appears to proceed on a basis that is not a basis advanced in our submissions, that is that it may be taken to assume that there is not the black hole because if you are born in Australia and you are not a citizen of another country, well, then you are in a position where you need to be preserved from becoming stateless. That is the assumption that underlies 23D.

Your Honours, that, of course, is a statutory and not a constitutional provision.  Our submission is that we, because of the characteristics that we have, and that is essentially because we were born in Australia and we have not been absorbed into the community but were born in Australia, we had and have Australian nationality, that we are a citizen of Australia in the constitutional sense.

There may be a question as to what citizen in section 23D(1)(b) means in that regard, but our contention is that we are not a person who has never been a citizen in a constitutional sense of any country. We are a citizen or, to use the expression in the way that Justice McHugh used it Hwang, we are a national of Australia and, accordingly, we simply do not answer the description of stateless.  That is not a circular proposition.  It is a single proposition.  The effect of that is that we cannot be grafted on to any category of alien persons on that account and the Court has our submission in relation to that.

We agree with what our learned friend has to say about the questions.  Our position is ultimately that we do not bear the constitutional description of “alien”, that section 198 does not validly apply to us.  The question was relevant when asked and continues to be relevant, in our respectful submission.

HAYNE J:   Just apropos of the questions, Mr Kenzie, the point I want to make is not a captious one about drafting; it is to try to get under the question.  If you go to page 7 and question 1:

are the Applicants ‘aliens’ within the meaning of section 51(xix) of the Constitution?

Phrased in that way, the question presupposes that there is a singular meaning of the word. Is the essence of what is being asked sufficiently captured in these terms: is section 10(2) of the Australian Citizenship Act 1948 (Cth) in its operation with respect to the applicants such that neither by virtue of birth in Australia is an Australian citizen a valid law? Is that the essence of it?

MR KENZIE:   Your Honour, I think we are not comfortable with that in this sense, that if our fundamental point is that we are not aliens, then there simply could not be any basis for the exercise of power under the Migration Act, and that is the fundamental question that we have sought to answer.

GLEESON CJ:   But I thought you agreed on a couple of occasions this morning that the question is whether it is within the power of Parliament to treat your clients as aliens.

MR KENZIE:   That is correct.

GLEESON CJ:   Is not Justice Hayne’s question simply another formulation of that question?

HAYNE J:   It was intended to be so.  Whether it has achieved the intention with my drafting is always open to doubt, Mr Kenzie.

MR KENZIE:   Your Honour, the question arises in the same way in the context of section 198.  We say that we are not an alien and Parliament does not have the power to pass a section in the form of section 198 which would apply to persons who are not constitutional aliens.

HAYNE J:   Section 198 hinges on a statutory concept of citizenship, see the definition of “non-citizen”, which takes you into the 1948 Act.  Ultimately, it seems to me that the question is rooted in the valid application of the Citizenship Act 1948 and whether that has the valid application it purports to have, namely that birth in Australia does not suffice, in the case of these applicants it is said, to bring them within Australian citizenship.

MR KENZIE:   Yes, I accept that, your Honour.  I think our fundamental point was that the questions that were addressed in this case were the questions that were addressed in Singh.  I think they really are the same questions.  They were answered in Singh.  The first question was answered in Singh on the basis that it was an appropriate question, and this really follows the same form and was able to be given an appropriate answer.

KIRBY J:   You want to hang onto the first question because you say it emphasises the affirmative way that the Commonwealth has to bring you within that power and if the consequence is that there is a statutory black hole, well, that is just too bad for the Commonwealth.

MR KENZIE:   That is so, your Honour.

GLEESON CJ:   If the applicant in Singh had not been a citizen of India, what would have been the difference between that applicant and your clients?

MR KENZIE:   There would not have been a relevant difference, save for perhaps this, and this raises the matter raised by Justice Kirby.  Singh was dealt with on the basis that the entitlement to Indian – or the fact of Indian citizenship arose, certainly originally, without any application and the like. It simply was there from day one. There was not an equivalent of section 12 of the Fijian Constitution. But subject to that – and we have said what we have said about that – there would be no difference.

Our friend ran Singh on the basis of the same arguments that he runs here.  He is correct in that the response to his arguments in Singh was, insofar as the majority was concerned, that different characteristics of alienage were identified as a means of answering the question.  So the joint judgment dealt with the question by pointing to those characteristics and your Honour the Chief Justice pointed to those characteristics and one more.  But the case that was advanced and the question that was identified both by Justice Kirby and Justice McHugh was the general question raised in this case, your Honour; exactly the same general question.

The consequence in Singh was a different consequence because of that which was identified as the central characteristic that does not exist here.  The factual difference in terms of the applied law, the jus sanguinis, it really is a demonstration of the fact that if you are going to take on board the jus sanguinis you are potentially taking on board whatever different system involved in a country which applies the jus sanguinis is.

So India has a variant of the jus sanguinis.  It applies the jus soli but says you can register.  India, on day one of Singh at least, had a system which said if you are born to Indian parents you are Indian.  Other countries and systems may have different approaches.  In some countries there are entirely different systems.  In the Vatican City you are a national because you hold an office.  There are a whole host of possibilities out there.  You have to go further than looking at this matter in the abstract and the question is if you take on board the notion that alien covers the jus sanguinis what is it taking on?  The Court has our submissions in relation to that.

KIRBY J:   Were the siblings in paragraph 7, did they become Australian citizens by adoption did they?

MR KENZIE:   One of them became a citizen by adoption.  One was born to an Australian parent and two were simply old enough to have reached the 10‑year period within section 10, your Honour, so we have the circumstance in this case that on the Commonwealth’s case the applicants are aliens because they fall on the wrong side of section 10.  The siblings, for different reasons, are on the right side of section 10, your Honour.  If it please your Honours.

MR BENNETT:   Would your Honours permit me to very, very briefly, in one or two sentences, answer one new point my learned friend made?

GLEESON CJ:   Yes.

MR BENNETT:   That is this, your Honour.  He submitted no doubt in reliance, though he did not quote the number, on paragraph [152] in the joint judgment, he seemed to suggest that my submission about core and

penumbra was rejected by the Court.  It was not rejected.  The Court simply said, when one reads that paragraph, that it was undesirable to define what the core was and what the penumbra was and to talk in those terms rather than decide the individual case.

It did not reject the approach.  For the reasons I have submitted, we would submit the approach as such was accepted.  It is a different way of saying that the Parliament can legislate subject to the Pochi qualification.  That is one way of saying it.  Another way is to say there is a core and a penumbra, but they mean the same thing.  In my submission, it was not rejected in that paragraph.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow.

AT 3.33 PM THE MATTER WAS ADJOURNED