Love v Commonwealth of Australia; Thoms v Commonwealth of Australia

[2019] HCATrans 240

[2019] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B43 of 2018

B e t w e e n -

DANIEL ALEXANDER LOVE

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Brisbane  No B64 of 2018

B e t w e e n -

BRENDAN CRAIG THOMS

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 DECEMBER 2019, AT 10.01 AM

(Continued from 8/5/19)

Copyright in the High Court of Australia

____________________

MR S.J. KEIM, SC:   May it please the Court, I appear with my learned friends, MS K.E. SLACK and MR A.J. HARTNETT, for the plaintiff in each of the special cases.  (instructed by Maurice Blackburn Lawyers)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with my learned friends, MR N.M. WOOD and MS J.D. WATSON, for the defendant in both matters.  (instructed by Australian Government Solicitor)

MR P.G. WILLIS, SC:   May it please the Court, I appear with my learned friend, MR T.B. GOODWIN, for the Attorney‑General for the State of Victoria intervening.  (instructed by Victorian Government Solicitor).

KIEFEL CJ:   What is the order of submissions today?

MR WILLIS:   We are in the Court’s hands but we are content to either commence with the plaintiffs, followed by the intervener with the Commonwealth or, if the Court preferred, the Commonwealth to lead, plaintiff to follow.

KIEFEL CJ:   Have the parties not agreed a course?

MR WILLIS:   I am sorry, your Honour.

KIEFEL CJ:   Mr Willis, I will speak to the parties, thank you.

MR KEIM:   The agreed is that I go first, your Honour, but Mr Willis is correct in saying that we were content to take direction from the Court if that was necessary.

Your Honours, the plaintiffs have attempted to express everything we have to say about the matters raised in the Court’s letter in our written submissions on this subject.  So, subject to your Honours’ questions our remarks today will hopefully be of relatively short compass.  Today we will cover the following topics; firstly, we wanted to say something about the Commonwealth’s objection to the Court’s considering Victoria’s submissions.

KIEFEL CJ:   Is that not a matter for Victoria?

MR KEIM:   It is.  We are happy to leave it to Victoria, your Honour.  So, firstly, we shall provide a strategic overview of where we see where the plaintiffs and the defendants part company in their appreciation of the case law.  Thirdly, we would seek to make a more detailed response to the Commonwealth’s reply on the subject of the Court’s propositions.  Because of the nature of those submissions, we will be talking more about the impact of the Court’s decision in Singh than the propositions themselves.  Lastly, we wanted to say something very briefly about where our submissions to the Court with regard to the propositions differ from those of the Attorney‑General of Victoria. 

Your Honours, we say that, as we appreciate matters, there are three central unifying submissions that underpin the Commonwealth’s response to the Court’s propositions.  The first they say while there is a limit to Parliament’s power to define “alien”, that limit is not encroached by including Aboriginal Australians as constitutional aliens.

Secondly, we appreciate that they approached the matter on the basis that the majority reasoning in Singh should be authoritatively applied to construe section 51(xix) in all fact situations which might subsequently arise. Third, we understand the Commonwealth to indicate that Mabo [No 2] should be restricted very much to the facts of that case and the issues that arose therein.

The plaintiff’s argue in contrast that Mabo [No 2] provides the common law with an understanding of the history of Australia, including European settlement and the imposition of sovereignty of the British Crown that accords with the true facts of that history.  The plaintiffs regard Mabo [No 2] as providing the way forward for the common law to deal with a multiplicity of legal and social issues arising out of that history, and obtaining an understanding of the ordinary meaning of “alien” in 2019 for the purpose of construing 51(xix) is one of these.

The plaintiffs also argue that much of the majority reasoning in Singh was not strictly necessary to identify the otherness or strangeness of Ms Singh in the circumstances of her case which was that, although born in Australia, her parents’ presence in Australia at the time of her birth was, in terms of her nationality, incidental.  We say that caution must be applied in applying that reasoning outside the facts pertaining to Ms Singh.  Lastly, in terms of this strategic overview, we say that the present case involves completely different circumstances and raises very different construction questions as to the meaning of “aliens” and “naturalisation”.

It follows that the reasoning in Singh is of little assistance in determining how section 51(xix) should be construed in the circumstances of the plaintiffs in this case, including their indigeneity. It is of little assistance, in our submission, in responding to the propositions which the Court has asked the parties to comment.

So I turn now to a more detailed response to the Commonwealth’s reply submissions upon the propositions which the Court has asked the parties to comment upon.  With regard to proposition 1, it seems to us that the Commonwealth says in response to proposition 1 that the Parliament can determine who is an alien.  At the same time, it acknowledges that there is a constitutional limit to Parliament’s power in this respect.  Eventually, and ultimately, the Commonwealth acknowledges that there is a constitutional meaning of “alien” that is for the Court to ascertain, and outside the lawful ability of the Parliament to alter, and we accept and endorse that acknowledgement.

The plaintiffs ought, by the fact of their aboriginality, be found not to be aliens within the constitutional meaning of that word.  We say several things about the Commonwealth ‑ ‑ ‑

KEANE J:   Mr Keim, would that be true if they actually adopted foreign citizenship, if your clients had chosen to be foreign citizens?

MR KEIM:   We say there is a point at which an indigenous Australian can abandon their aboriginality and abandon their citizenship.  But there is no difficulty with double citizenship being recognised by countries.  So, for a long time, if we go to ‑ ‑ ‑

KIEFEL CJ:   But just focusing on your acknowledgment that they can cease to be a citizen, how does that happen?  How is that consistent with a notion of permanent allegiance?

MR KEIM:   We say that people can abandon their permanent allegiance.  There were examples of that ‑ ‑ ‑

KIEFEL CJ:   Then it would not be permanent.  If it is permanent allegiance, they cannot renounce.

MR KEIM:   Except that the statutory alterations to the common law in the period post the Royal Commission in 1878 did suggest – and I think I am right in saying that legislation was passed, to allow in certain circumstances, people who had – that is, British subjects, English British subjects to have the right to abandon their British subjectship in those circumstances.  Under the common law, there was no ability to renounce, and if one was to ‑ ‑ ‑

KIEFEL CJ:   That might be so, but as I understand your argument adopting these propositions, it would be the case that an Aboriginal person is permanently bound to Australia and that cannot be renounced.  Is that not essentially the proposition which you have adopted – it cannot be abandoned?

MR KEIM:   We say that a person can abandon their aboriginality and that would allow them to abandon their connection to Australia, but that would be in extreme circumstances. 

KEANE J:   Not their aboriginality, their allegiance. 

MR KEIM:   Yes, your Honour. 

KEANE J:   We are not talking about abandoning their identity.  We are talking about this notion of allegiance and permanent allegiance that is part of the case you have adopted. 

MR KEIM:   The two items are related, your Honour.  Can I go back, your Honour - what I was going to say is that there are examples of cases, including the American Revolution cases, where it was held that Americans who were British subjects had abandoned their permanent allegiance to the Crown.  So it is not unknown to the common law that it could be abandoned.  But it is permanent.  It cannot be stripped from them is what we say. 

KEANE J:   But, as between the American colonists and the imperial Crown, the American colonists were rebels.

MR KEIM:   Yes, but they were not all rebels.

KEANE J:   Until the Treaty of Paris, there was a state of war between them. 

MR KEIM:   Yes, your Honour, yes, but what we say is that an abandonment is not completely unknown to the common law and it does not, in our submission, affect the other aspects of the case.

KEANE J:   It works only one way?

MR KEIM:   Yes, your Honour.

KEANE J:   You accept that it works only one way?

MR KEIM:   Yes, your Honour.  While a person is an Aboriginal Australian and maintains that identity then they are permanently Australian nationals and not aliens in Australia.  So, I was in the process, I think, of saying that we say several things about the Commonwealth’s attempt to use certain dicta expressed by the majority in Singh to demonstrate what is an expansive nature of Parliament’s power to determine what an alien is. 

Firstly, the Commonwealth in claiming that Ms Singh was an alien, only because of legislation to that effect, misstates the true situation. Because Ms Singh was a constitutional alien the legislature was permitted by section 51(xix) to provide for her deportation. What the Commonwealth might have said, correctly, is that Ms Singh’s constitutional alien status would not have been an issue had the legislature not sought to exercise those deportation powers. If the legislature had offered naturalisation under the term “citizenship” to Ms Singh, then it would equally be exercising the naturalisation power being part of section 51(xix).

KEANE J:   Mr Keim, both your clients have not sought to become naturalised.

MR KEIM:   They have not sought to become citizens, yes, your Honour, yes.

KEANE J:   The power is – the relevant power is the power in respect of naturalisation and aliens.  Are your clients outside the power of naturalisation?

MR KEIM:   Yes, your Honour.

KEANE J:   So they cannot be naturalised?

MR KEIM: They cannot be. They can be granted citizenship. Can I discuss that in this way, your Honour? It does explain some of the confusion that does arise in the area. What the Citizenship Act does is multi‑faceted. So what it does is it offers by way of administrative process a naturalisation process to people who the Parliament considers to be aliens. It also offers naturalisation by way of statutory process with regard to people who, within the Commonwealth’s view of the effect of Singh, would be aliens.

Ms Waters and Mr Joyce in Re Canavan fall into that area of being statutorily naturalised because under the Commonwealth’s view of Singh and the dictum in Singh, those people are naturalised by the Citizenship Act. So, Mr Joyce, despite all of his Australianness, despite serving in the Australian defence forces, was an alien and, according to the Citizenship Act, he became a citizen upon his birth.

But thirdly, and the third role – and they are not distinguished necessarily in the words of the Citizenship Act ‑ is it declares all of those people who are not aliens to be citizens. So it does more than naturalise. It states that people who are recognised as not being aliens are citizens. It gives a naturalisation administrative process to people who are confidently thought to be aliens, and people in the middle who are more Australian but on some views are aliens, they are naturalised by a statutory process taking effect at their birth.

KEANE J:   If a person is not within the naturalisation or aliens power, where does the Commonwealth have the power to naturalise them?

MR KEIM:   They do not need to, your Honour, because they are not aliens.  The Commonwealth has power to grant them citizenship or declare that they are citizens.

KEANE J:   If they are not within the naturalisation power, where is the Commonwealth’s power to give them citizenship?

MR KEIM:   Citizenship is a statutory concept, your Honour.

KEANE J:   The source of the power to confer it is the naturalisation power, is it not?

MR KEIM: No, your Honour. What we say is, to the extent that the granting of citizenship is naturalisation, using the term “citizen”, that comes from section 51(xix). Everybody who is not an alien who is declared to have the statutory role of citizenship, that does not flow from section 51(xix). That is just a way in which the Commonwealth decides to – the Commonwealth decides to create a bundle of rights to call it citizenship and to declare all of those people who are non‑aliens are citizens. It is in that sense – that is the sense in ‑ ‑ ‑

KEANE J:   Where does that power come from?  In section 51, where is that power?

MR KEIM:   That power comes from the nationhood power for the Commonwealth to say with regard to all Australians, they will be called citizens and they will have these rights, the rights to obtain a passport.  It is, we say, within the power of a nation to grant a passport whether “passports” appears in section 51 or not.  So those bundle of rights ‑ ‑ ‑

KEANE J:   Is it within the power of the nation, pursuant to the nationhood power, to create benefit schemes that spend money by giving benefits to citizens?  Is it within the nationhood power to make people citizens and so eligible for the receipt of benefits, pecuniary benefits from the Commonwealth purse, pursuant to the nationhood power?

MR KEIM:   Well, to the nationhood power and other powers that allow those benefits to be provided.

KEANE J:   What are the other powers?  I mean, you are saying it is not 51(xix), so what is the other power?

MR KEIM:   Your Honour, if I can take an example; if, for example, the right to be enrolled and to vote was deemed to be dependent upon citizenship, then it is within the power with regard to Commonwealth elections to grant that right to people whom the Commonwealth has called citizens, though it is simply a way of classifying people who are not aliens or who have been naturalised to say that the power under Commonwealth elections will be exercised by granting those persons who have become citizens or who are deemed to be citizens, that power.  So it flows from that.  It is a statutory creation; it is a statutory administrative way of classifying people who are regarded as being Australians. 

The second thing we wanted to say with regard to the Commonwealth use of the dictum in Singh was that the decision in Singh should be understood in the context of what was argued by Singh which was that the common law, and through it, the jus soli, necessarily formed the content of section 51(xix), so that was very much the emphasis of the argument there.

The Court, in that context, rejected Ms Singh’s argument that an essential characteristic of aliens is that they were born outside Australia and that can be seen in the Chief Justice’s reasons in Singh at paragraph 11.  Singh is at volume 9, tab 50, and paragraph 11 is at page 357.  It was in response to that argument that the Court considered, and decided, that the jus soli test could be displaced in certain circumstances – which in fact was what happened in Ms Singh’s case.

The third thing that we wanted to say about the Commonwealth’s view of Singh is this.  We say the Commonwealth disregards the vastly different circumstances in Ms Singh’s case, compared to those of the plaintiffs.  These include Ms Singh’s birth in Australia was the only factor that tied her to the Australian body politic.  Secondly, Ms Singh’s parents had only arrived in Australia less than one year prior to their birth, and they were seeking asylum, and had no more substantial rights than a temporary visa for the purpose of seeking asylum.  Thirdly, as a result, her birth in Australia was, we say, merely incidental, and gave her very little connection to the Australian community ‑ and that is essentially the core of what this Court recognised in Singh. 

Fourthly, and this really responds to a point that we have just made ‑ in contrast, the circumstances of the plaintiffs, who despite not being born in Australia, involve a many‑layered connection to the Australian community.  Each has a parent born in Australia and so can justify the jus sanguinis test, a parent born in Australia about whom there is no suggestion that they were aliens.  Secondly, each has ancestors – and this is the key to this case – who at the time of Federation were made British subjects due to their presence in Australia at the time of sovereignty, and as such have ancestors, beginning with their parents, who have an allegiance to the Crown in right of Australia.  So that is the contrast, we say, between the circumstances of Ms Singh on the one hand, and the plaintiffs in these special cases.

With regard to the Commonwealth’s statements with regard to proposition 2, we say that the Commonwealth ignores the circumstance that the law that existed in both Britain and Australia for hundreds of years prior to Federation was permissive with regard to who could be a British subject.  If a person could not satisfy the jus soli ground, that was not the end of the inquiry.  A person may have satisfied the jus sanguinis ground, the options of being recognised as a British subject were not binary.  And that law is set out in the reasoning of Justice McHugh at paragraph 82 and Justice Callinan at paragraphs 303 to 304 in Singh, Justice McHugh’s paragraph 82 is at page 3584, Justice Callinan’s reasons are at 3653.

Now, we acknowledge that both Justice McHugh and Justice Callinan were in the minority, but in terms of the law in Britain, and Australia at that time, we have not seen anything to suggest that that analysis is controversial, and it is supported by the royal commission to which their Honours refer in each of their reasons.

Secondly, with regard to proposition 2, we say that the common law is not rigidly confined to cases that have only considered section 51(xix) of the Constitution. The common law as a whole is capable of informing the ordinary understandings of the word “alien” in section 51(xix). It is due to the unique factual scenario that arises in each of these special cases, which have not arisen for this Court’s consideration previously, that recourse to the common law relevant to the role of indigenous Australians, in the Australian constitutional framework, is permissible and necessary in our submissions.

It is also important ‑ and this is the third thing with regard to proposition 2 ‑ to recognise that the construction of constitutions ‑ and in this regard we refer to Chief Justice Gleeson’s reasons in Singh at paragraphs 16 to 18, that is at pages 3559 to 60, they are those paragraphs where he quotes Sir Alfred Deakin at some length ‑ but it is important to recognise that the construction of constitutions and the development of the common law are both evolving processes and they both evolve in response to many of the same societal stimuli.

Accordingly, there may be, and in this case there are, good reasons to place significant weight on common law doctrines which have been articulated in more recent times, and to deviate from older common law doctrines that have lost much of their societal relevance, when construing section 51(xix), and in fact, deviation from the older common law doctrine that was seen to have lost much of its societal relevance appears to be what the Court has done in Singh in deciding that jus soli was not all determinative, at least in a favourable way.

The fourth thing we wanted to say with regard to proposition 2 is this - and it flows from what I have just said. Because of this both in the common law and in the interpretation of section 51(xix) weight is to be given to the role of Aboriginal Australians as the first peoples of what is now the Australian community.

While this was discussed in the previous hearing in the context of rejecting a comment by Geoffrey Sawer, Professor Sawer, that race was irrelevant to nationality – Professor Sawer’s comments appear in volume 10, tab 53 at page 3974 in Appendix III to his report, which is a report to a bigger document - what we say is with the evolution that has taken place with regard to the understanding of the role of Australia’s first peoples that the converse to race being irrelevant to nationality is not that race is relevant or that the argument is about race at all, but rather what is relevant is the historical status as first peoples of the Australian community that is relevant.  That is what we wanted to say with regard to what the Commonwealth says about proposition 2. 

I turn now to proposition 3.  The Commonwealth response to proposition 3, in our view, lapses back into reliance on the false premise that there is no constitutional meaning of “alien” and that the Parliament’s power to determine who is an alien is unbridled.  In response to what the Commonwealth says in paragraph 5 of its reply, the plaintiff maintains that the result of Singh is that a person can simultaneously be both a citizen – a status that is determined by criteria established by Parliament and liable to be removed by Parliament - and an alien.  A person can be both a citizen and an alien within the constitutional meaning of that term. 

We say that this flows from what was said in Meyer v Poynton by Justice Starke.  Meyer v Poynton appears at volume 7 at tab 32.  The passage is at pages 440 to 441 of the report which is pages 2625 to 2626.  What it does is that it confirms that naturalised British subjects in 1920, through the naturalisation power, could be denaturalised and expelled from Australia. 

That passage, if your Honours are referring to the report, starts at the bottom of page 440, 2625. It is the last paragraph, last new paragraph on the page.  It starts with the words “Two other points were referred to by Mr Latham” and it goes over to the end of that paragraph on page 441 which ends:

It seems to me that if the power given by the Naturalisation Act to admit to Australian citizenship is within the power to make laws with respect to naturalization, so must authority to withdraw that citizenship on specified conditions be also within that power. 

So what the effect of that is, even though you have been naturalised the fact that you are a naturalised alien means that you are susceptible to the denaturalisation process and you have the vulnerability of being susceptible to being denaturalised and expelled from Australia. 

The effect is that any person who is a constitutional alien we say retains that characteristic even after being naturalised, granted citizenship.  Because of this, a wide interpretation of “alien” that foists alienage upon third‑generation Australians would place perhaps a half or more of the population at risk of denaturalisation and deportation, and it would amount to a large stripping of the rights compared to Australian‑British subjects at Federation.

The Commonwealth, at paragraph 5 of its reply, appears to concede that dual‑citizen citizens, that is naturalised aliens, are liable to denaturalisation and deportation, although it maintains a semantic difference with the way in which I have just expressed these matters.

Thirdly, on the third proposition – and really I have dealt with that with my answer to your Honour Justice Keane – if the beneficiary of citizenship is a constitutional alien, being declared a citizen operates as naturalisation and it has those other two roles as well.

Going on to the fourth proposition, the prevalence of double citizenship highlights the problematic nature of using the dictum from Singh that allegiance to a foreign power is the criterion of alienage as all determinative, in our submission.

Fifthly, with regard to proposition 3 – and I just wanted to go into a little bit more detail with regard to the facts of Mr Joyce and Ms Waters’ cases.  Re Canavan is at volume 8, tab 41.  Ms Waters was born in Winnipeg, Canada.  Both her parents were Australians in Canada for work and study purposes.  Ms Waters’ birth was registered with the Australian High Commission.

Pursuant to the 1948 Naturalisation Act, Ms Waters was an Australian citizen by descent.  This Court held, however, that by Canadian law, Ms Waters was a Canadian citizen.  Treating the Singh dictum as all determinative, Ms Waters was not an Australian by descent, although obviously she was, but an alien who had to be naturalised by registration at the High Commission and, on the same basis, Ms Waters was always subject to denaturalisation and deportation.

Ms Waters’ situation would apply even to a child born prematurely in the United States to Australian Aboriginal parents on a short holiday in that country because, of course, the 14th amendment of the United States would make that person a US citizen by US law.  So even though you are an Australian Aboriginal, even though it is your premature birth on a holiday that makes you a US citizen, if one strictly applies the dictum from Singh, then even a person like that is an alien and has to be naturalised and can always be denaturalised and deported.

With regard to Mr Joyce – and this is Mr Joyce, the former Deputy Prime Minister of Australia, not Lord Haw‑Haw – we have already alluded to his circumstances.  He was born at Tamworth Base Hospital.  He grew up in Australia, was educated in Australia and served in the Australian defence forces before he first became a member of the Australian Parliament in 2004.

Despite these quintessential qualities of Australianness as a double citizen, Mr Joyce would be susceptible to denaturalisation and deportation even though he is one of those people that the Citizenship Act deems to be a citizen from birth because he is born in Australia either to a permanent resident or to a citizen of Australia. But he is still, according to the dictum in Singh, is a person who was born with foreign allegiance and, therefore, commences simultaneously as an alien and a citizen.

Moving on to propositions 5 and 6, our learned friends did not, in their submissions, talk about proposition 4, so we rely on what is in our written submission with regard to that.  Contrary to the Commonwealth’s submission in paragraph ‑ ‑ ‑

KIEFEL CJ:   Just in relation to proposition 4 ‑ ‑ ‑

MR KEIM:   Yes, your Honour.

KIEFEL CJ:   ‑ ‑ ‑ in your written submissions you say that the three‑stage test of recognition or acceptance of someone by an Aboriginal group, you describe that as ‑ or explain it was framed for the purpose of recognising native title but you say whilst it is useful it is not necessarily exclusive as an evidentiary tool, I take it that you are saying that it is a matter for each Aboriginal group to determine the means by which they recognise or do not recognise someone as belonging to that group.

MR KEIM:   We go a little bit further, your Honour, and this is where we depart not in contradiction to but perhaps in supplementation to the propositions.  We say that an Australian Aboriginal who through dispossession and disturbance is no longer part of a recognised group is no less an indigenous Australian, no less a first people and it then becomes a matter of evidence as to whether that person is an Australian Aboriginal or not.  We give ‑ ‑ ‑

KIEFEL CJ:   By reference to what criteria, that is really what your written submissions leave open.  Is it the case that this fact finding will take place by reference to whatever the societal Aboriginal group determines as being referable to its membership or is it by reference to some other objective criteria such as the three‑stage test which has been referred to in authority which is applied to every Aboriginal person?  What is the criteria?

MR KEIM:   We say it is analogous.

KIEFEL CJ:   Analogous with?

MR KEIM:   Analogous to the three‑part test.  If I can give the example of firstly ‑ ‑ ‑

KIEFEL CJ:   What if an Aboriginal group does not agree with the three‑part test?

MR KEIM:   The three‑part test is a logical construction ‑ ‑ ‑

KIEFEL CJ:   But it is a construct.

MR KEIM:   Yes, it is, it is, but it picks up the internal workings of the Aboriginal group because it says a person is recognised by the Aboriginal group.

KIEFEL J:   But, that is the point.  So you are saying it is recognition according to whatever the group determines is the criteria for recognition and that will alter, may alter, from group to group.

MR KEIM:   It may.  For example, the requirement that a person be a descendant would rule out somebody who was adopted three generations ago by the group.

KIEFEL CJ:   For instance, one of the missing facts in a way in this case is that in relation to Mr Love only one person from his group, one elder, has recognised him.  There are no other facts in relation to recognition.

MR KEIM:   There are not, your Honour, and I did say on the last occasion that that was partially an artefact of the fact that time is running out to settle that particular special case but if that were a concern for the Court then that could be remitted to the Federal Court in that regard.

BELL J:   The time for that, it might be thought, was before the parties – and by that I refer to both parties – agreed to a special case presenting a sole question whether the plaintiff in each instance is within the reach of the aliens power by reason of the circumstance that the plaintiff in each case asserts he is an Aboriginal person. 

MR KEIM:   I accept that.

BELL J:   So it was hardly right for settlement of a special case if the issue that was to be determined by the Court were not accepted for the purposes of that case.

EDELMAN J:   Special cases are settled against an understanding of the issues in dispute.

MR KEIM:   Yes, your Honour.

EDELMAN J:   And the Commonwealth has never disputed ‑ whether it has accepted it or not might be another question – never disputed that Mr Love is an Aboriginal person.

MR KEIM:   Yes, your Honour.

GORDON J:   Not only that; he is a descendant of a particular named tribe, that the tribe exists, and is an elder of that tribe.

MR KEIM:   Yes.  But I do accept the criticism of the Chief Justice and Justice Bell that it could have been more fully agreed upon and that failure – not defence but plea in litigation is that there was a shortage of time at that point in time.  We say that the Court should be satisfied on the basis of the facts, but if that were a concern it could be addressed by being remitted.

KIEFEL CJ:   More broadly in relation to your written submissions, you say it would be a matter for each Aboriginal group to apply their laws and customs in relation to a recognition?

MR KEIM:   I do say that, your Honour.  But can I address something that lies beneath and beyond your Honour’s concern.  We have a concern that there may be some indigenous Australians who because of disturbance and dispossession can no longer say that they are members of the Wik community or any specific – the Quandamooka community or whoever ‑ but nonetheless have been for three generations indigenous people ‑ ‑ ‑

KIEFEL CJ:   You do not even need to go that far.  It is not unknown in native title cases that there are disputes about membership of the group.  I would not say common, but it happens.

MR KEIM:   Yes, but a person who is not a member of a specific group could still be well recognised by Aboriginal people from numerous groups to be a genuine descendant and identify – so we say your Honour is right, we do not have to go that far in this case, but we do not want to say that you have to be a member of a group that still exists, that exists at this point in time, to be an indigenous Australian, because there may be some people who simply – and we give the example, the last woman standing in a massacre is no less Aboriginal despite the fact that no one exists to recognise her at that point in time.

GAGELER J:   Is the recognition pursuant to traditional laws and customs of Aboriginal peoples?

MR KEIM:   You are now asking a person who knows nothing about native title, your Honour, but yes, it is traditional laws and customs.

GAGELER J:   I am just asking - must it be traditional laws and customs in the native title sense?

MR KEIM:   It does not require the continuity that native title requires to ensure continuity of connection.

GAGELER J:   I am not talking about continuity of connection.

MR KEIM:   Yes.

GAGELER J:   I am talking about continuity of the tradition.

MR KEIM:   Yes. 

GAGELER J:   Can it be a new tradition?

MR KEIM:   It can be a new tradition, your Honour. 

GAGELER J:   Can it be a new group?

MR KEIM:   It can be a new group, your Honour. 

GAGELER J:   So the only connection then is race, is it?

MR KEIM:   The connection is aboriginality, your Honour, in the sense that if the person is a descendant and identifies as Aboriginal it cannot be the case, we say, that because – and to some extent Yorta Yorta is the example in this regard - it cannot be the case that because Yorta Yorta people were so dispersed from one another that they no longer knew each other and identified a group, but have since come together and found their identity and come together as a new group – if they are indeed the facts of Yorta Yorta, I am using it as a broad example, then that is a renewal of the old tradition, even though it does not have the continuity for native title purposes, we say.

GAGELER J:   So your proposition is although it starts with Mabo‑type analysis, at some point it disconnects from that?

MR KEIM:   It does, your Honour, because aboriginality is a more diffuse concept and because it is recognised that there are many indigenous Australians – it is recognised in the prefatory section to the Native Title Act that there are many indigenous Australians who no longer hold native title because of dispersion and dispossession, but it is recognised by the Native Title Act that they are nonetheless indigenous people. 

So their indigeneity is a question of fact which is to be determined by reference to their claim to be indigenous Australians and so you are not simply cut off because the group that you are part of was dispersed by being taken to centres and because children were not allowed to speak indigenous languages in dormitories and because they lost contact with their aunties and their uncles and their grandparents.

EDELMAN J:   You are really talking about subgroups, are you not, that one can lose their membership of a subgroup without losing their identity and membership of the larger group of indigenous people.

MR KEIM:   Yes, your Honour, that is exactly right.  So in looking for customs and looking for laws then you can look on the broader basis and on looking on recognition you can look at a broader basis.  For example, there may be people who do not have native title who are not part of a recognised subgroup, but are recognised by members of many, many, many subgroups as being authentic indigenous Australians, and have been over generations.

KIEFEL CJ:   Would the Commonwealth Parliament have power to legislate for the criteria in connection with membership of an Aboriginal group?

MR KEIM:   They would not.

KIEFEL CJ:   That is for the purpose of the Court determining the question, if that is where factual dispute ends up.

MR KEIM:   Well, ultimately, not definitively, because the question is whether you are one of the first peoples and therefore not an “alien” under subsection (xiv), so the Commonwealth Parliament cannot say ‑ ‑ ‑

KIEFEL CJ:   Not necessarily the alien power, what other powers?  Are there other powers?

MR KEIM:   What I am saying is that ‑ ‑ ‑

KIEFEL CJ:   The race power?

MR KEIM:   The race power could be used, but not to contradict something that flows from the meaning of 51(xix).  So somebody who is not an alien according to 51(xix) cannot be legislated out of that non‑alien status by legislation that says you can only be an Australian Aboriginal if you comply with these 10 criteria.  So there is certainly - the Parliament can set up administrative mechanisms by which this can be determined but they cannot - there is a limit to that power, they cannot ultimately say that a person who is, in fact, an indigenous Australian, Aboriginal Australian, is not an Aboriginal Australian and therefore that person is an alien.  That is the point at which the power is limited.  Your Honour was asking me about proposition 4.  I was going on to respond to the Commonwealth’s reply with regard to propositions 5 and 6.

KIEFEL CJ:   Yes.

MR KEIM: Thank you. Contrary to the Commonwealth’s submission in paragraph 6 of their further reply submissions, the plaintiffs do not ask this Court to consider whether Parliament could remove citizenship from Aboriginal persons. It does not arise here, because it has never been suggested, by us or anyone else, that the plaintiffs - it has never been suggested that they are Australian citizens under the Citizenship Act.

However, there are examples which indicate the harshness of the Commonwealth’s position with regard to applying the Singh dictum that are close, or rise out of the facts in this case.  For example, there is the example of Mr Love’s sister.  She is an Australian citizen, because she pursued the administrative mechanisms to be recognised as an Australian citizen, so in that sense she has been naturalised, quasi‑naturalisation, your Honour, but was born in Papua New Guinea and was a Papua New Guinea citizen when born, so she is an alien if you apply the Singh dictum as all determinative. 

On the Commonwealth’s application of the Singh dictum, Ms Love is an Australian citizen and an Aboriginal Australian, but is nonetheless liable to be denaturalised and deported, so that is an indigenous Australian who has done all the right administrative things, but because of - she is recognised as an alien if you apply Singh and ignore her indigeneity she is still liable to be deported.

Mr Thoms’ son is potentially closer to the example used by the Commonwealth, in that, like Mr Joyce, and this does not all - some of this is hypothetical because it does not all appear in the special case, but he is born in Australia, he is an Australian citizen as a result of being born of Australia and being the child of Mrs Thoms.  He is also indigenous, but on the Commonwealth’s approach to Singh, he would, if like Mr Joyce he remains a New Zealand citizen, he would also be liable to denaturalisation and deportation.

So the vulnerability does not only apply to indigenous Australians.  But the vulnerability to being denaturalised and deported spreads very far within the Australian population.  It is not in the facts, but I think the latest Bureau of Statistics is that one third of Australians are born overseas.  I mean, if we include all of the grandchildren of Irish and Italian and South Sudanese ancestors then it is much more than a third who are aliens under the Commonwealth’s view of Singh. 

And lastly with regard to propositions 5 and 6, we say that, as Aboriginal Australians, the plaintiffs do not belong to another place.  We are taking that from Nolan.  A determination that they are aliens would be a denial of their irrevocable connection to their ancestral country and their membership of Australia’s first peoples.  That is what we wanted to say in response to the Commonwealth’s reply to us.

I just wanted to say something very briefly just indicating where we diverge from the analysis put forward by the Attorney‑General for Victoria.  We say, of course ‑ and we say that this is clear from the positions of both parties ‑ the intervener’s submissions complement in various respects the submissions of the plaintiffs.  The key difference between our position, as we apprehend it, is that the plaintiffs do not consider it necessary for the Court to find that an Aboriginal society’s bond with the land is analogous to or equivalent to citizenship.

As I think I have indicated already this morning, the plaintiff’s position is more elementary than that.  It goes to the definition of alien in the constitution and does not seek to invoke notions of citizenship in aid of the plaintiff’s argument at all.  Indeed, the plaintiffs say that citizenship status is irrelevant if the plaintiffs are not constitutional aliens.  And we are also much more comfortable with using the feudal notions of allegiance because we think they are applicable to the position of Australian Aboriginals. 

We are, however, indebted to our learned friends who represent the Attorney for the manner in which they have supplemented the survey of the case law on native title, with references, for example, to passages from Ward v Western Australia, Yorta Yorta and this year’s decision of Griffiths to mention but a few.  The additional case law indicates, in our submission, the depth of the appreciation by the judicial branch in Australia of the special relationship that Australian Aboriginals have with the Australian continent.

And I say the judicial branch in Australia rather than the common law because a lot of those statements are made pursuant to applying the Native Title Act, which of course is meant to be reflective of the common law as expressed in Mabo but we say, obviously, those cases are very analogous to the common law because of what the Native Title Act picks up from the common law. 

We would finish with an observation about the relationship between the authority provided by Singh and the circumstances of this case seen through the prism of Mabo [No 2] and the Native Title Act and the native title case law of the last quarter century.  Victoria’s submissions at paragraph 31 quote from the famous definitional passage in Nolan, that is, definition of the concept of “alien”.  We refer to this at paragraph 49 of our original submissions in the special cases and that passage emphasises belonging to another person – emphasises as part of the inherent meaning of “alien” the longing for another person or place and the Justices in Nolan go on to say:

An alien . . . is, in essence, a person who is not a member of the community which constitutes the body politic of the nation state –

So, where does that leave Singh and the propositions that the Court has asked us to comment upon in this case?  We say that there is absolute consonance between the decision that is the result in Singh and the propositions which the Court has put forward for comment by the parties.  Ms Singh was held to be an alien not because Indian law said that she owed allegiance to India, although that was referred to in some of the reasoning, she was an alien because her parents had only been in Australia for a fraction of time and she and they did not belong to the Australian community in any real sense. 

The plaintiffs, in contrast, as descendants of the first peoples of Australia do belong to the Australian community.  In fact, we say that the Australian community is best conceived of – best perceived as a continuity from when the first of the first peoples came to Australia right up to the present moment and the settlement by people from Europe and Federation are part of the continuity and evolution of the Australian community.

But, going back to the plaintiffs, as members of Australian societies – sorry, as members of Aboriginal societies, they belong to the Australian community and this belonging in all its dimensions was recognised by the common law in Mabo and that recognition has been developed and deepened by the thicket of native title case law which has continued to develop in the intervening years.

So, what was decided in Singh and what we ask the Court to decide here and what is reflected in the Court’s propositions, we say, there is absolute consistency between those things because it goes back to that inherent meaning of “alien”, the word that is used in 51(xix) which is belonging or not belonging to a person or place.  Those are our supplementary submissions, your Honours.

KIEFEL CJ:   Yes, thank you, Mr Keim.  Yes, Mr Willis.  Mr Willis, the State of Victoria did not intervene at the outset of this matter, it has intervened at the point where this matter is brought back before the Court to deal with particular propositions.  The Commonwealth has said that you have gone outside the ambit of those propositions.

MR WILLIS:   We acknowledge what your Honour has said.  Our response is that everything that the State of Victoria has put before the Court here is prompted by and in response to the particular supplementary question posed by the Court.  We are conscious that we were not here at the outset.  It is only in response to the questions as they were framed.  What we have sought to do, however, is to provide in a nutshell or an overview the analysis that Victoria applies so that its particular responses to the particular steps that have been laid out in the question and asked for which comment is made, can be understood as a matter of methodology. 

Our first work was, just as the plaintiff and the Commonwealth have tended to do, was to go proposition by proposition to make a point or to respond.  We did so and our written submissions on which we rely did so, but as we did that we appreciated that we were either repeating ourselves or spreading an argument across different points.  So we sought to bring together in one spot at the outset the fundamental propositions for which Victoria submits – addresses the supplementary question.

KIEFEL CJ:   I see from your outline of oral argument now that you have distilled it to the point of making a general submission to reconceptualise the meaning of “aliens” altogether.

MR WILLIS:   That takes up and wears as a badge an analysis proposed by the Commonwealth in their response.  I think it is a fair description, but it is not, we would submit, a variance to what essentially has been put and already argued before the Court.  But what we sought to do was to get to an underlying or basal principle on which the Court could make sense of the arguments about aboriginality of the plaintiffs, of these two individuals and the facts in the stated case, and how should that be linked to or understood in the context of the existing jurisprudence on aliens that the Court has found. 

What we are really saying is that, just as the meaning of “aliens” in the Constitution was not fixed in 1901, and the Court has said that in Singh – it is in the plurality judgment in Singh in numbers of places and the Commonwealth agrees with that – it did not have a fixed or immutable meaning in 1901, and quite clearly it has evolved – what is or who is an alien has evolved.  There is no reason in principle why the law, as it stood in 2004 or before this case was brought, is the endpoint of the evolution of the meaning of “aliens”.  Essentially our proposition is that there are two streams of jurisprudence and two streams of understanding within the Court which can be brought together in a coherent and logical way so as to ‑ ‑ ‑

KIEFEL CJ:   Looking at the final point that you make in your outline at paragraph 11 though, the point you make is that the relationship of Aboriginal Australians to land and waters of Australia equates to the bonds of citizenship.

MR WILLIS:   Yes, that ‑ ‑ ‑

KIEFEL CJ:   So do you accept that citizenship is the synonym for alienage?

MR WILLIS:   It has become – there is a fundamental dichotomy, or there is a – to be an alien implies an alternative.  Through the course of decision to this point, citizenship has become the most convenient summary of a dichotomy between ourself and others and it has become expressed as “citizen” and “alien”.

Now, we accept that that is the course of the Court’s decision making, but what we say is that that is not – you have to look through what does citizenship represent?  Is it citizenship per se, or is it some qualities which citizenship expresses, and therefore has citizenship just become a convenient, and readily applied in most cases to date, a ready reckoner of who is an alien and who is not an alien? 

What we say is that when you look at citizenship first, it is a highly abstract notion.  It is filled with words of allegiance, and a reciprocal duty of protection from the state to the individual.  It is about who is a friend and who is an enemy, in history, in a very crude sense.  But if we go even further back to a matter of etymology, it is a matter of who belongs here, and citizenship has become a ready way of dealing with that.

KIEFEL CJ:   Do you accept that it is within the power of the Parliament to determine who is a citizen?

MR WILLIS: We are not challenging the Citizenship Act, or our submissions do not seek to challenge the Citizenship Act.

KIEFEL CJ:   No.

MR WILLIS:   So we would accept that.  Recognising, as Pochi v Macphee, or the Communist Party Case, that there are always limits to the power of Commonwealth Parliament, and it is this Court’s function to determine what those limits are for any particular constitutional head of power.

So far as aliens are concerned, the question is who belongs to Australia, and in what way do they belong?  The submission of Victoria is that the two gentlemen in this case, who are bound – or who are said on the stated case to be Aboriginal by descent ‑ you know the other two, to assert Aboriginal identity to a particular subgroup, an identified subgroup, to use Justice Edelman’s phrase, and who are recognised by that subgroup or that community with which they seek to identify ‑ ‑ ‑

GAGELER J:   According to traditional laws and customs, or not?

MR WILLIS:   Your Honour’s question which was asked of my learned friend is a very important one to which we would say it would appear in this case that they are in accordance with the traditional laws and customs, certainly in the case of the native title holder because that is a precondition of native title.  For our understanding, it comes in two parts.  We say that to decide this case the Court needs only to be concerned with the three‑part test.

GAGELER J:   But you are not here just to decide this case; you are here as an intervener on a point of principle. 

MR WILLIS:   We have an interest in the wider implications of the case.  That is palpable, yes, your Honour.

GAGELER J:   That is what I am trying to explore.

MR WILLIS:   We would say that it is first and foremost for each Aboriginal subgroup, community or society to determine its own rules of composition and that may or may not be traditional in a native title sense, traditional in a native title sense of course requiring the demonstration of continuity to a pre‑sovereignty time.

GORDON J:   Is that right?  If you look at Yorta Yorta, it seems to suggest that continuity can be interrupted as long as it is not substantially interrupted.  It can evolve.  It can change. 

MR WILLIS:   Precisely.

GORDON J:   It is a very large statement to accept, is it not?

MR WILLIS:   Your Honour’s qualification or application is one with which I entirely agree and is a fundamental point of the Yorta Yorta jurisprudence, that tradition, connection are capable, one, of evolution.  When the case was argued, there was a great debate about whether tradition or connection was frozen in time.  It is not used in the judgment but that was the ‑ ‑ ‑

GORDON J:   Whether it was static or not.

MR WILLIS:   Correct, and clearly it is not.  So the first point – and I think your Honour Justice Gordon, for that clarification, the first point is that tradition, connection, even in the native title context, are not static and are capable of evolution and inevitably have, all because of the continuing interaction within the social dynamics of this ‑ ‑ ‑

GAGELER J:   That can be taken as given. 

MR WILLIS:   Certainly.

GAGELER J:   That is the native title sense of tradition, but you go beyond that and I am just trying to understand how you go beyond and what conceptual basis you have for going beyond.

MR WILLIS:   If we step beyond that, we would say that that is open, that that is a matter for either subsequent determination at a judicial level and, so far as social dynamics are concerned of any particular Aboriginal community or society, that that is a matter which, in the first instance, within the rules of that society is for that society to constitute itself.

GORDON J:   But it is nothing more, though, than the tripartite test identified by Justice Brennan, is it not?  What does it add?  The reality is this – and I ask this question for this reason – it addresses, as we see in Yorta Yorta, although that was dealing with the Native Title Act, it was dealing with dispossession, it was dealing with interruption.

MR WILLIS:   Yes.

GORDON J:   It was dealing with the all of the things which would otherwise give rise to questions about what is an Aboriginal Australian.

MR WILLIS:   Yes.

GORDON J:   It was flexible enough to address each of those issues, so why the need to go beyond it?

MR WILLIS:   I am going beyond it because Justice Gageler has asked the question and because ‑ ‑ ‑

GORDON J:   But it is your submission.

MR WILLIS:   In a sense, from where I stand, Victoria is embarking on a process of its own negotiations and discussions with its own Aboriginal Victorians in which questions of this very question have not been decided as a political or policy matter and are open for discussion with Aboriginal Victorians as between the State of Victoria, or the State Government of Victoria and their Aboriginal people. 

So Victoria does not know the answer for itself.  So far as the Court is concerned, as I say, the first thing - and this in part reflects the United Nations Declaration on the Rights of Indigenous Peoples, and we footnote the relevant article in our submissions - it is, as I submitted, according to that declaration, in the first instance, a right of indigenous peoples to themselves determine who are their own members.

Now, whether the Court has to embrace that for the purposes of deciding this case, I am in the happy position of leaving to your Honours.  But we would say that certainly the native title Yorta Yorta understanding of society and of community and of the functions of an Aboriginal society are well recognised, adaptable, flexible, and experience shows across the range of decisions that it is capable of embracing a great many Aboriginal persons.  But undoubtedly there are people who cannot establish native title, and that is one of the points that I wanted to address your Honours on.

GAGELER J:   The Yorta Yorta community for a start.

MR WILLIS:   Your Honours will find on your desk a map which is - will now find - a public document from the Aboriginal Heritage Council, a statutory body of the State of Victoria, which shows areas of Victoria for which there are Aboriginal heritage protection groups called registered Aboriginal parties.  The Yorta Yorta people are those in the middle of Victoria, just beneath the - in the centre of the page, along the Murray River, there is what looks like a broadly V‑shaped purple area of land.  That is an area of Victoria for which the Yorta Yorta people, the same who were the unsuccessful applicants in this Court and below in 2002, the area of Victoria, which was substantially co‑extensive with their native title claim, for which they are now recognised under Victorian law as the cultural heritage protectors, in accordance with Aboriginal tradition and Aboriginal principles.

GAGELER J:   What do we get from that, for constitutional purposes?

MR WILLIS:   The point that I wanted to make about that was that there are more ways of expressing aboriginality and more ways of expressing the connection, or rather, the relationship with land and waters, and the special relationship with land and waters with which your Honours are all familiar, there are more ways of expressing that than simply through the Native Title Act.

GAGELER J:   Well, are you saying that State legislation bears on whether an individual is or is not an alien for constitutional purposes and if so, how are you saying that?

MR WILLIS:   I am saying that the Court - not only this Act but a range of Acts which we have given extracts of in the attachment to our written submissions shows that legislatures throughout Australia have acknowledged and recognised special relationship with the land and waters and that that is a matter of which your Honours can take notice.

KIEFEL CJ:   Take notice, but what is becoming evident here is that the plaintiffs’ case was originally premised on the connection recognised in Mabo and then legislated into the Native Title Act.  We seem to be moving well beyond that now into territory which seems to take us into Mabo [No 3] but we have not really had either a special case or argument which would establish - or a much wider proposition.  That might be a convenient time.

MR WILLIS:   I would be pleased to address it afterwards, your Honour.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

KIEFEL CJ:   Yes, Mr Willis.

MR WILLIS:   Your Honours, whether this is a revolutionary step or a step of a Mabo [No 3], as might be thought, or is merely the orthodox application to an area which is incapable of change is a point of distinction between ourselves and the Commonwealth.  Our submission is that, clearly enough, this is quite simply the working out, on a case‑by‑case basis, of implications which are consistent through the Court’s jurisprudence of the last 20 years – predating Mabo [No 2], found in the Court’s expressions in R v Toohey; Ex parte Meneling Station, found indeed in the very early case on standing of Onus v Alcoa of Australia 149 CLR 27 – to which, if I have the opportunity, I might take your Honours, but certainly to which a passage in the judgment of Justice Wilson is particularly instructive at page 62 of that case.

But in addition to those cases, which cover Commonwealth standing, cover the statutory land rights legislation in the Northern Territory as well as the customary native title and the statutory native title, in all of those the courts have expressed an understanding – and most recently, of course, and I have not repeated it because you were taken to it in May and the Court is fully familiar with this through the prism of the Northern Territory v Griffiths decision on compensation for loss of native title.

There are expressions and insights into the nature of the relationship between Aboriginal peoples and the land and waters of Australia.  Now, we say that it is simply a logical, coherent extension to apply that insight, those understandings, when for the first time the Court has to consider the position of two persons who are not citizens, but are, on an agreed statement of facts, persons of Aboriginal status – who are Aboriginal.

KIEFEL CJ:   Are the connections of which you speak the same - the Griffiths connection, the spiritual connection to land and waters and the question which arises with respect to alienage, which might be described as a person’s connection with the polity.

MR WILLIS:   Your Honour, we acknowledge that there is a critical distinction.  Is alienage only determined by or about some political relationship between the person and the sovereign power?  How is that to be expressed?  As I said, the early law – I am not going to get into a debate about whether it is medieval or early renaissance in origin – is about deemed or abstract notions of loyalty, a duty of loyalty of the villein or the citizen or the subject and the imputed abstract reciprocal relationship of protection. 

Now, is that the sole criterion?  We would submit no, that those as are seeking perhaps to develop before, or to summarise before, that those notions by their very abstraction hide beneath them some other criterion or principle and that that principle can be expressed relevantly as a matter of relationship that the world has moved a long way from when you fought for the King of France or the King of England or any other version of that and that therefore to only apply this bond of – between the polity ‑ between the subject ‑ or the citizen as it is now expressed and the State ‑ ‑ ‑

I think that that was the point your Honour was raising this morning and it is an idea reflected there and also in Koroitamana, which I will not go back to, in paragraph 13 where Chief Justice Gleeson and Justice Heydon made the same point.  It is a very uneven sort of allegiance and protection that can be controlled by a person but not in any way by the State and, indeed, it involves a significant abstraction from the State’s power conferred by 51(xix) in terms that should, on ordinary principles, be construed with all the generality the words permit. 

Finally, your Honours, and briefly on proposition 7 because proposition 7 builds on all of the other propositions that we have already been addressing, our ultimate submission is that the legal framework that is in issue in this case is one of very longstanding that draws no distinction between people by reason of race and that has no general implications for the status of the overwhelming number of indigenous Australians. 

It will be relevant only where those indigenous Australians have a characteristic that if it were to be held by any other person would be relevant to their citizenship.  So your Honours are not, in our submission, being asked to decide Mabo [No 3].  Your Honours are being asked to do something much narrower, which is to decide whether two particular people with particular characteristics are persons who it is within the power of the Parliament to treat as aliens.

Putting the question in that way emphasises the fact that what Parliament has done here by law passed under 51(xix) has said, in effect, that if you are born outside of Australia you are not going to be a citizen unless you apply and in that way we make sure that the Australian Government, the Australian body politic is aware of you.  You are born outside of our territory, so you have to tell us, you have to identify your connection with the Australian body politic, meet the statutory criteria, have that statutory status formally conferred upon you and evidenced in such a way that then allows the proper operation of the borders. 

You can determine who gets travel documents.  You can determine who needs visas.  You can answer all of the otherwise imponderable questions that would be thrown up by a status in this third category of non‑citizen/non‑alien.  The way that the statutory status is aligned with the constitutional limit is by focusing attention on the question in two parts, as we put at the first hearing. 

You ask first is it open to Parliament to treat a particular person as an alien – that is a constitutional question – and then you ask, second, has Parliament treated the person in that way. So that if, looking at the Citizenship Act, it cannot be said that Parliament has adopted a criteria – looking at people as a class, because obviously Parliament is not making this judgment fact by fact, person by person.  Parliament is saying what criteria are we going to use to identify whether people are aliens or not.  The criteria that Parliament has used here are criteria that fix upon place of birth, relevantly.

Unless it be said, and it has not been said, and it could not have been said, that to fix upon place of birth as a relevant criteria is outside the realm of reasonable options available to the Parliament, then its choice of status is valid and the resulting statutory status determines the question:  is the person an alien or not?  These two people are aliens on that statutory criteria.  The statutory criteria are not invalid, indeed not challenged and so the answer to the question is both plaintiffs are aliens, in our submission. 

That is a conventional analysis that does not involve any Communist Party problem.  It just recognises that when asks the question, can Parliament treat a person as an alien, one is asking a question about the permissible criteria, not about whether, on a unique set of facts about a particular person, the person is an alien or not.  Unless your Honours have any questions, those are our submissions.

KIEFEL CJ:   Thank you, Mr Solicitor.  Do you have anything in reply, Mr Keim?

MR KEIM:   In rising to reply we are conscious that particularly our learned friends for the Commonwealth and ourselves have exchanged material in writing or orally probably at least half a dozen times by now.  So, I will try and restrict ourselves to particular matters. 

Your Honours, can I just go back to the issue of the three‑part test and something that your Honour the Chief Justice said about having to decide Mabo [No 3]?  Can I just say two things about that?  One is at all times we have not been seeking to bring on Mabo [No 3] but we were seeking not to close off options of issues that might be decided in future cases which is why we have been cautious about the three‑part test. 

Having listened to the various words this morning, certainly from our point of view if one is looking not at the subgroup level exclusively but also looking at the broader level of a three‑part test within the Aboriginal community as a whole within Australia then we think that there would be very few, if any, difficulties with that being an evidentiary approach that dealt with the issue on most occasions.

There is still perhaps some possibility of someone who has been locked up for so many years that no one knows who they are or where they came from, but in practical terms, the thee‑part test, looked at on the broader level, which I think was more the level expressed in the Tasmanian Dams Case, it would not be an issue from our point of view.  That was the first thing that we wanted to deal with. 

A point that we have made previously but which we may not have communicated particularly well, our learned friends for the Commonwealth speak about the concept of alienage as something that you would not cut back the power as it was at Federation or at some other time.  That is understandable because it is a head of power in a written constitution.  So it is important to governments to be able to exercise such powers as the Constitution bestows upon them.  But the point that we make is that while 51(xix) is a head of power the concept of whether a person is an alien or not is about pathways to being recognised as a member of the community of which you claim to be.

So, that is why it is important to look at the law, both statutory and common law as at Federation, as including both the common law jus soli test and the statutory jus sanguinis test, and approach it in 2019 on the basis, not only as to what the words mean for the government’s ability to control who are members of the community but also the rights it takes away from people to be part of – to be members of the community which they want to be part of and which they have, on some views of the law, rights to be part of the community. 

So, the permissive aspect of not being an alien is as important, at least, as the head of power aspect of it.  Obviously, they relate together but it should not be just conceived of as the Commonwealth must have at least as much power as it had at Federation.  It can just be as equally stated as a person who has a claim to be considered as a member of the community should have those claims recognised just as much as they were at the time of Federation unless the changes in the nation over the period of time justify a more restrictive approach, which is what the Court decided with regard to aspects of jus soli in Singh’s Case.

The only thing I wanted to say just about some of the language in what I called this morning the famous definition of alienage in Nolan’s Case, in terms of looking at the ordinary meaning of it, it does talk about a person is an alien if they owe allegiance to another country.  But, understood properly, what that is really saying is if you want to know what an alien is, a German is an alien in France, an Englishman is an alien in France, a Frenchman is an alien in Great Britain. 

At that broad common sense crude level that is true, but of course to describe it in terms of owing allegiance to another country and not understanding the complexity of it, of the dual citizen issues that have operated not just in the last 20 or 30 years, but for hundreds and hundreds of years – so I wanted to say that with regard to that passage in Nolan.

Our learned friends went to Te and made references to Patterson and Shaw and that line of cases.  That statement in some of those passages saying that perhaps non‑alien/non‑citizen was not a relevant concept any more, it is important when one approaches those passages to take into account that there had been this issue of people who were British subjects from Britain who had been in Australia for a long time, and the issue in those cases was how had Australia’s status as becoming a fully independent nation affected their status within Australia.  It was in that context that the concept of non‑alien/non‑citizen was promoted.

Once that issue had been decided in a particular way, as far as those people were concerned it was no longer relevant to talk about non‑alien/non‑citizen.  But it will always arise, it will always arise, where the approximation – the statutory approximation of the constitutional concept does not get it right, there will always be the potential for non‑alien/non‑citizens to exist within the Australian community.

Our learned friend discussed at considerable length the issue of what does protection and allegiance mean and it has changed over the years as well.  But the point that we make is that it is sufficient to consist of loyalty and obedience to the sovereign and protection of laws from the sovereign – and we have developed that in paragraph 25 of our submissions in reply to the Commonwealth. 

People whose country – the sovereignty of whose country has been taken from them by what was previously a foreign sovereign, obedience to the sovereign, from that point in time, is not an insignificant matter.  As we pointed out, the protection of the laws for indigenous peoples, not that it was always effectively implemented – but the protection of the laws of indigenous people in a circumstance where colonisation is taking place is important.

In our submission, that is sufficient.  You do not have to look at whether you can get the consulate to send somebody around when you are arrested overseas.  The two concepts of obedience to the Crown and protection of laws from the Crown are more than sufficient to establish an important relationship that then goes on to have implications with regard to whether somebody is a stranger in the land or not.

We say two things.  Our learned friend took the Court to paragraph 91 of Western Australia v Ward and talked about the inherent fragility of native title and raised an issue of a stream or source question.  In our submission, no such stream or source question arises and that is because what we are looking at here is the meaning of “alien” in a head of power in the Constitution. 

So whatever provides assistance with regard to giving that word both an ordinary meaning and its legal meaning based on its ordinary meaning is relevant and of assistance and is able to be given effect to because it is the word “alien “ which gives the power.  If a full knowledge and understanding by the common law of the history of colonisation and the history of the extension of sovereignty to Australia provides a guide to what that ordinary meaning is, then no stream or source question arises.  It is just simply giving meaning to the word and then that has effect in terms of the power that it extends to the government, to the Parliament.

Lastly, we wanted to refer to what our learned friends talked about in paragraph 15 of their outline of oral submissions, which our learned friend the Solicitor‑General did touch upon in his oral remarks. The Citizenship Act, excluding section 35 is permissive. What it says is if you fit some credentials then we will grant you a statutory status of citizenship and that will have legal implications. Whether that approximates the meaning of “alien” in some cases or in some provisions or not or whether it is simply deeming somebody who has – about whom there is no question that they are an alien and grants or declares that they have citizenship, they are not matters that are dependent upon section 51(xix) and the meaning of “alien”. It is simply saying you may become or you are a person who fits the criteria for this statutory concept.

So, the question of whether they are valid or not is not a matter that arises here, it is not a matter which it is incumbent upon the plaintiffs to challenge in any way. Section 35, on the other hand, which says that certain citizens can be denaturalised and lose all of their rights within Australia, that is an issue which says to some people we are operating and we are taking away rights from you based on section 51(xix) of the Constitution.  That is an aspect that could be challenged but obviously that is not applicable to the plaintiffs in these special cases.

What, and this was discussed, I think, with your Honour the Chief Justice on the last occasion, what we are challenging is not the validity of section 189 of the Migration Act, but the extent - whether section 189 of the Migration Act can extend to us as people who we say are not aliens and we say that section 189 of the Migration Act does depend on its extension to whomever it is applied to on section 51(xix), even though it uses the term “non‑citizen”. It can only be effective if the non‑citizen to

whom it is applied is an alien for the purpose of section 51(xix) of the Constitution. 

Those were the particular matters in reply that we wished to raise.  Many of the matters which our learned friend the Solicitor‑General has referred to are dealt with in our written submissions, and in their written submissions as well, but unless the Court has any other questions of us, that is all we wish to address.

KIEFEL CJ:   Yes, thank you, Mr Keim.

MR KEIM:   Thank you, your Honour.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise to 9.45 am.

AT 4.01 PM THE MATTER WAS ADJOURNED