Love v Commonwealth of Australia; Thoms v Commonwealth of Australia

[2019] HCATrans 90

[2019] HCATrans 090

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 WEDNESDAY, 8 MAY 2019, AT 10.04 AM

Copyright in the High Court of Australia

____________________

MR S.J. KEIM, SC:   Your Honours, I appear with my learned juniors, MS K.E. SLACK and MR A.J. HARTNETT, and we appear on behalf of the plaintiff in each of the matters.  (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 MR N.M. WOOD and MS J.D. WATSON for the defendant in both matters.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Keim.

MR KEIM:   Thank you, your Honour.  Your Honour, it would seem from the parties’ positions that much of the Court’s attention in deciding these special cases will be devoted to considering the authority of Singh v The Commonwealth (2004) 222 CLR 322. In particular, we will focus on those parts of the plurality judgment on which the Commonwealth relies. This part of the submissions, which will take the greater part of our time, is particularly relevant to the position of the plaintiffs as children who were born outside of Australia of Australian nationals.

In this part of our oral submissions our principal focus will be on why the reasons of the plurality in Singh should be restricted to the facts in that case and not treated as a universal guide to determining questions of alienage under section 51(xix) of the Constitution.  Inter alia, we say that is because, firstly, the criterion asserted as being the defining characteristic of alienage did not capture the inherent circumstances of Ms Singh, but brought her within the constitutional meaning of “aliens”.  The reasoning on which the Commonwealth relies was not necessary to the decision in Singh. 

Secondly, the proposition advanced by the Commonwealth in reliance upon the plurality’s reasoning that any person who owes allegiance to a foreign state by being a citizen or subject of that foreign state is ipso facto an alien for the Australian Constitution was not supported by a majority of the judges in Singh.  As a result of the plurality in Singh approaching the construction of section 51(xix) through the narrow prism of the facts in Singh, it did not consider matters going to nationality by descent.   Nationality by descent is central to the facts in the present cases. 

The case of Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 is authority for the proposition that nationality by descent is an independent basis for a person to be an Australian national. The majority in Nolan acknowledges an express exception for persons born overseas with Australian parentage from being aliens.  This part of the decision in Nolan was not referred to by the plurality in Singh, but is consistent with the approach taken by this Court unanimously in Pochi v Macphee (1982) 151 CLR 101.

Fifthly, the proposition relied upon by the Commonwealth is not an appropriate test because of the inconvenience flowing from reliance upon the domestic law of other nations to determine the effect of the Australian Constitution.  Sixthly, the test for nationality articulated by the plurality in Singh did not give sufficient attention to the law applicable in 1901 in construing or applying section 51(xix).

Seventh, the proposition relied upon by the Commonwealth is contra‑indicated for application to claims of nationality by descent by the approach taken in the Australian Citizenship Act 1948 especially at the time that each of the plaintiffs was born.  Lastly, the proposition relied upon by the Commonwealth produces unexpected and concerning results when applied to claims for nationality by descent.  Many of these revolve around the impact upon other examples of foreign allegiance at birth and the resulting dual citizenship. 

That will complete the first part of our submissions. The second, briefer part of our submissions will address the proposition that Aboriginal Australians do not come within the concept of “aliens” in section 51(xix) no matter where they happen to be born.

This part of the submissions will address the following three matters:  those principles of construction of the Constitution which arise from its function as a document which is difficult to amend but which is intended as an enduring document to serve the needs of succeeding generations; secondly, the changes in Australia’s social and legal context, including its international context and including changes in the prevailing values which call for a changed understanding of the potential of section 51(xix) to deal with the position of Aboriginal Australians in Australian society; and, thirdly, the reasons why those changes applied to the construction of 51(xix) require that Australian Aboriginals be recognised as persons no matter where they are born as falling outside the meaning of “aliens”.

GAGELER J:   Are the two parts of your argument cumulative?  Do you need to succeed on both parts?

MR KEIM:   They are independent, your Honour.  We can succeed on either part and be successful, but it is not a major part of our case.  The aspects of our clients actually involve all of those parts so it is possible that if one took a multi‑component approach to alienage then perhaps all four parts could be relevant but that is not the way in which we put the case.  We say they are independent and our clients are entitled to succeed on either part.

NETTLE J:   On the first part of your argument would someone, say, who was descended from British Australians but born abroad to a foreign national and an Australian and not an Australian citizen, be recognised as an alien or not?  In other words, does it require the aboriginality of the plaintiff in order to succeed on the first or would it work that people of any descent ‑ ‑ ‑

MR KEIM:   No, I am sorry, your Honour.  The first part applies to anybody who is born overseas of an Australian national.  The second part is restricted to the special characteristics of Aboriginal Australians.

NETTLE J:   So anyone of any race born abroad from at least one Australian national is not an alien?

MR KEIM:   Yes, your Honour.

KIEFEL CJ:   But you are not contending that Singh was wrongly decided?

MR KEIM:   No, your Honour.  We are restricting the reasons of the plurality to the facts in Singh for the reasons that we have outlined and we will go to in some detail.  Your Honours, can we just start by providing a context of why we concentrate on these parts of Singh by asking your Honours to go to our learned friend’s outline at paragraphs 20 to 23.

GORDON J:   Do you mean their outline or their submissions, Mr Keim?

MR KEIM:   Yes, their primary written outline, not their oral outline.  I am sorry, yes.

KIEFEL CJ:   Their full written submissions.

MR KEIM:   Your Honours will see in paragraph 21 the central statement in paragraph 200 of the plurality’s reasons on which our learned friends rely and your Honours can see from the whole of the four paragraphs that the Commonwealth’s position is that Singh is determinative of all aspects of our clients’ claims.  The second citation or the second extract in paragraph 22 is taken from paragraph 205 and we can take your Honour to those in due course. 

As I just said, in answer to your Honour’s question and as we said in our reply submissions at paragraph 6, the plaintiffs do not seek to challenge the result in Singh.  However, the plaintiffs assert that the reasoning of the plurality which led to the passages in paragraphs 200 and 205 contains errors of principle and for the other reasons which we advance should be confined to the facts of that case.

Can we just remind the Court of the circumstances of Ms Singh.  She was born in Australia in 1998.  Both of her parents were born in India and were citizens of India.  Neither of her parents were permanent residents in Australia.  By virtue of her parent’s Indian citizenship, Ms Singh took Indian citizenship at the moment of her birth.  She was not an Australian citizen and the Court by a 5-2 majority determined that Ms Singh was an alien.

In terms of the proposition that it was not necessary for the decision to lay down the principle with regard to foreign allegiance being the central characteristic, could we just indicate that we say that the reasons of Chief Justice Gleeson and Justice Kirby, but also the case itself, indicates that paragraphs (a), (b) and (c), which I have just outlined ‑ born in Australia in 1998, both of her parents were born in India and were citizens of India and neither of her parents were permanent residents in Australia, would have been sufficient to decide that case in the way that it was decided, without any reference to the foreign allegiance at birth. 

If I can turn to the proposition that the plurality’s reasons were not shared by the other members of the majority ‑ in terms of the joint book of authorities, paragraph 200, is at volume 9, tab 50, page 3623 and page 398 of the report, and I would ask your Honours to go to paragraph 200, and about six lines in draw your Honours’ attention to the sentence that commences: 

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). 

GAGELER J:   What did they mean by the “central characteristic”?  The difficulty I have with that statement is that at the end of paragraph 190, in the last sentence, their Honours accept that a person with no allegiance to any sovereign power can be an alien. 

MR KEIM:   Yes, your Honour.  There is a disjunct, in our submission, between the sentence in 200 and the sentence to which your Honour has just directed our attention. 

GORDON J:   There is a further proposition, too, I think, and that it is recognises dual nationals at 182 as falling outside that general description that is given at 200 – recognition of more than one state. 

MR KEIM:   In 182, your Honour?

GORDON J:   Yes. 

MR KEIM:   Yes, your Honour. 

GORDON J:   Does that mean that the statement at 205 is, in a sense, saying that it is a factor in alienage but not determinative? 

MR KEIM:   We understood it to be determinative. 

EDELMAN J:   It cannot be, you cannot ‑ ‑ ‑ 

MR KEIM:   But we say that there are difficulties with it.

GORDON J:   It cannot be determinative, though, can it, given the way in which you have just been taken to those two passages at 182 and 190? 

MR KEIM:   No.  We say there are inconsistencies in what their Honours have said at 190.  I do not know whether the passage at 182 was anything more than a history but it is part of the proposition ‑ ‑ ‑ 

GORDON J:   It is more than a history, Mr Keim.  It is recognising the existence that you can have someone who has a dual nationality, which would mean that - there are a lot of dual nationals in this country.

MR KEIM:   There are, your Honour.

GORDON J:   They are not, by their dual nationals, aliens.

MR KEIM:   They are not, your Honour.

GORDON J:   The mere fact – so it cannot be determinative, can it?

MR KEIM:   It cannot, your Honour.  That is so.

NETTLE J:   The reason they are not aliens is because they are Australian citizens, despite what other citizenship they might hold.  That is what makes them non‑aliens, but they are Australian citizens. 

MR KEIM: Can I approach it in this way, your Honour. The effect of applying the criterion in paragraph 200 as determinative in all situations means that all persons who are born with a foreign allegiance are aliens at birth. We will take the Court to some examples later on. With regard to some of these persons, the Citizenship Act deems them to be citizens from birth, so at a single moment in time they are aliens and are naturalised. In other cases the Citizenship Act provides pathways to citizenship but treats them as aliens to start with.

But the problem in the result of treating all of these people who start off through the domestic law of another nation as aliens, as an essential proposition, is it exposes to denaturalisation in all of the negative aspects in which the aliens and naturalisation power can be used to being denaturalised, to having their citizenship stripped from them and to being detained and being removed from the country. 

The point that we make is if you apply this as the central characteristic, as our learned friends seek to do, as the definitive criterion, a very large sum of people, even people born in Australia, who at their birth have New Zealand citizenship, for example, are aliens by that. Even though the Citizenship Act says a person born in Australia to somebody who has lived here for a sufficient number of years is a citizen, that is a statutory naturalisation process, so they are exposed to the power of 51(xix) in its negative form.

So that is how they become dual citizens.  If one treats the reasoning of the plurality in the way that our learned friends rely upon it, then all of those people have to be naturalised to become dual citizens.  That is the central point that we make.  We say that it cannot be the case, for the reasons that we have said, that that is the central characteristic.  It was unnecessary and outside the facts of that case.  It produces concerning results. 

NETTLE J:   But your contention at base is that citizenship and alienage are not the same thing.  They are not the opposite thing.

MR KEIM:   Yes.

NETTLE J:   One is not the ‑ ‑ ‑

MR KEIM:   What we say is - and we have set out the authorities in our primary outline of submissions and we will take your Honours to the passage in Nolan in due course - we say that citizenship is a statutory approximation to non‑alienage, that in many of the cases to which our learned friends refer in their outline it was an effective synonym because those people failed the test in Pochi v Macphee without any difficulties.

So all of the people who have come as asylum seekers and who are born in Myanmar or Vietnam or China or England, they are aliens because of what Sir Harry Gibbs said in Pochi v Macphee. So, when they are declared by the Citizenship Act or the Migration Act to be non‑citizens, it is an exact approximation to a synonym. But in those cases where the Parliament gets it wrong and applies section 51(xix) to people who are not yet granted citizenship, then the synonym does not apply and there are several statements in the authorities that indicate that. In fact, we say ‑ ‑ ‑

EDELMAN J:   This first submission, though, would not apply, for example, to an Aboriginal Australian born in Australia to two non‑citizen parents, for whatever reason.  That would be your alternative submission, would it?

MR KEIM:   Yes, it would be.  If I could put some bones on your Honour’s example – if, for example, the two plaintiffs in this case who we say are Australian nationals although they are non‑citizens, if they had a child both of their parents would be non‑citizens.  They would be indigenous, as their parents are indigenous Aboriginal Australians and, in those circumstances, they would succeed on our second proposition but not necessarily on our first proposition – well, they would succeed on the first proposition because no matter where they are born they are born to Australian nationals, even though they are non‑citizens.

GAGELER J:   When you say “Australian nationals”, are you drawing a distinction between nationals and citizens?

MR KEIM:   Yes, I am, your Honour.  We originally in our written outline of submissions used, I think, Justice Kirby’s terminology of “non‑alien, non‑citizen”, but “Australian national” we have adopted as a generic form of category upon alien, so it deals with people who are treated as subjects, it deals with - as in 1901, it deals with people who - where the nationality is generally citizenship as well.

GAGELER J:   Yes.  So I am understanding you are currently addressing a submission to the effect that a person born to an Australian national parent while that parent was outside of Australia cannot be an alien.

MR KEIM:   Yes.

GAGELER J:   In that proposition, how do you define “Australian national parent”?

MR KEIM:   “Australian national parent” is somebody who is not an alien but who has not been granted citizenship under the Australian Citizenship Act 2007 or its earlier forms.

GAGELER J:   I am sorry, I do not understand that – someone who is not an alien but who has not been granted citizenship?

MR KEIM:   Yes.

GORDON J:   How can that be anybody other than an Aboriginal Australian on your argument, that is, why is it not that the second limb of your argument is, in a sense, the precursor to this?  Or, to ask Justice Gageler’s question, who else could it be other than an Aboriginal Australian, on your argument?

MR KEIM:   It could be anybody who, according to the law in 1901, would have received – in the law as it was in 1901 and as it has evolved – who was a national by descent.

EDELMAN J:   A British national?

MR KEIM:   At that time, a British subject by descent, the modern analogue is an Australian national by descent.  So what we say is that if neither of our clients were Aboriginal Australians but, for example, a couple went to New Zealand for a holiday and a child was born prematurely and they came back as soon as the child was born, they are Australian nationals, whether they have taken out citizenship or not.  But that child, we say, is an Australian national by descent.

We say that is recognised by the Citizenship Act because there are pathways to citizenship for those people. People who are born overseas to Australian nationals, whether they are citizens or not, are entitled to nationality by descent. In the case of both our clients, one of their parents was an Australian citizen.

GAGELER J:   Mr Keim, can you point, please, to somewhere in some authority where “Australian national” has been used in the sense in which you now use it?  I just want quite a clear definition of what you mean by “Australian national”.

MR KEIM:   I cannot, your Honour.  I say the closest synonym of it – the closest terminology is Justice Kirby’s use of the word.

GAGELER J:   Where do we find that?

MR KEIM:   I will find that for your Honour.  He used the term “non‑citizen, non‑alien” in ‑ ‑ ‑

EDELMAN J:   Your second submission is, in a sense, a very narrow submission.  The second submission is that whatever the bounds of the word “alien” in 51(xix) are they do not extend to the special and sui generis category of Aboriginal Australians.

MR KEIM:   Yes, your Honour.

EDELMAN J: Why do you need to have this vastly expansive rewrite of the whole of our understanding of section 51(xix) as your first submission? I am not sure I follow where it is going and what it adds to the second submission.

MR KEIM:   They are independent pathways to being a non‑alien, your Honour.

BELL J:   Looking at the first of those pathways, you have been developing a concept of “Australian national” which might, on a view, simply add confusion to the debate.  Your contention is, going back to Chief Justice Gibbs in Pochi that, firstly, the constitutional content of the word “alien” cannot be defined by the Parliament in terms of providing for Australian citizenship, that is, there is some content that is beyond the scope of the Parliament to exhaustively define in terms of citizenship legislation, as I understand it ‑ ‑ ‑

MR KEIM:   That is the proposition.

BELL J:   ‑ ‑ ‑ and, secondly, his Honour’s further conclusion that it is within the scope of the power conferred under 51(xix) for the Parliament to treat as an alien a person who was (a) born outside Australia, (b) whose parents, that is, both parents as I understand it, were not Australians and who has not been naturalised as an Australian.  If you take the middle one of those three propositions “whose parents were not Australians”, on your own case each plaintiff had a parent who was an Australian citizen. 

MR KEIM:   Yes, your Honour.

BELL J:   So that if we were to understand Chief Justice Gibbs in speaking of a class of people whose parents were not Australians was referring to people who were not Australian citizens, your argument remains.

MR KEIM:   Yes, your Honour.

BELL J:   So, I am just wondering why we are being enticed into some very fuzzy concept of Australian nationals being persons who, for the purposes of this part of your argument, one of whom is an Australian but does not have citizenship and who gives birth to an individual outside Australia by some accident of history.  It just seems to me to add a level of complexity which may not assist. 

MR KEIM:   That is certainly true, your Honour, of the case which this Court has to decide.  There are some issues of consistency, I suppose, that stand outside that.  Once you say that citizenship is not definitive of who is or who is not an alien that could extend through several generations.  You could have people who are not aliens but for whatever reason did not take out Australian citizenship and then they give birth overseas.  So, it is not necessary for the decision in this case, your Honour.

BELL J:   Is it possible to confine your argument to that which is necessarily raised?  It seems to me ‑ ‑ ‑

EDELMAN J:   But there is no special concept in the Constitution of Australian “national” but there is a special concept of “Aboriginal”.

MR KEIM:   Yes, your Honour.  Yes, your Honour is asking a slightly different question.  I can simply use the terminology of “non‑alien” rather than using the word ‑ ‑ ‑

EDELMAN J:   No, I was making the same point as Justice Bell which is I still do not see why you need for the purposes of this case to go beyond your second proposition or what it adds to your second proposition to create these expansive new concepts?

MR KEIM:   We say they are not expansive new concepts.  We have used the word “national” simply as a convenient word. 

NETTLE J:   Well, the Court has not before recognised a category of “non‑citizen, non‑alien” except once - Justice Kirby to whom you refer - and he subsequently too stepped back from that.  The Court regards “citizenship” and “non‑alienage” as the same. 

MR KEIM:   In our submission, they are not, your Honour. 

NETTLE J:   Well, I understand you argue against that but that has been the accepted wisdom until this point. 

MR KEIM:   We say that the Court has continually stated that it is not within the power of the Parliament to define who is or who is not an alien. 

NETTLE J:   Well, it is said repeatedly that it is within the power, subject, perhaps, to some outer limit of the kind that Justice Gibbs described in Pochi. 

MR KEIM:   It is the outer limit that we are interested in, your Honour. 

EDELMAN J:   That is the core of your second submission. 

NETTLE J:   All right.  Well, that is where, if I may say so, where you ought be going, to the outer limit. 

EDELMAN J:   The core of your second submission is if there is any outer limit, that outer limit is Aboriginal Australians. 

MR KEIM:   We say the outer limit includes Australians by descent. 

GORDON J:   But why do you need to go that far?  That is our question.  We are dealing with Aboriginal Australians ‑ Aboriginal Australians who are referred to in the Constitution, as is “alien”.  As I understand your argument, and I do not mean to put it in simple terms, but as I understand it, your propositions are alienage should not be equated with non‑citizenship, alienage should not be equated with foreign citizenship and you do not equate it with birth outside Australia. 

MR KEIM:   Yes, your Honour. 

GORDON J:   The critical proposition is then what do you with your clients who are Aboriginal Australians, which is the outer limit.  So why not focus on them? 

MR KEIM:   Because ‑ ‑ ‑

GORDON J:   You do not need to go any further, do you? 

MR KEIM:   Well, our learned friends say that their aboriginality is irrelevant ‑ ‑ ‑ 

GORDON J:   And you say it is ‑ ‑ ‑

MR KEIM:   Our learned friends say ‑ ‑ ‑

GORDON J:   ‑ ‑ ‑ and you need to explain why it is. 

KIEFEL CJ:   Mr Keim, it may perhaps simplify matters to focus attention on this reality and that is that the Court will be determining the questions raised by reference to the facts in the special case, which is to say upon the matters raised by the plaintiffs concerning their aboriginality and how it relates to the question of alienage. 

I cannot, of course, be assured that my colleagues will not go a little further, but it is generally the case that the Court will not decide a question wider and you are inviting the Court to decide a much larger question.  The chances are that it will not be answered.  Your focus should be upon the facts put forward in the special case as the foundation for the argument in relation to the two plaintiffs. 

It is one thing to say that – it is one thing to use wider propositions perhaps to challenge reasoning in a case for the purpose of the plaintiffs’ case, but it is another thing to invite this Court to go beyond what is required for these to be determined in the plaintiffs’ cases and to engage in a much larger proposition involving much greater facts which are actually not before the Court. 

MR KEIM:   But the fact that each of the plaintiffs had citizens as one of their parents are in the special case, your Honour, and we say that is sufficient on its own for the plaintiffs to succeed. 

GAGELER J:   Mr Keim, I have rewritten your first proposition.  I want to put it to you to see if I have understood it.  Does it come down to saying that a person born to a non‑alien parent outside Australia is a non‑alien?

MR KEIM:   Yes, your Honour.

GAGELER J:   Thank you.

KIEFEL CJ:   Mr Keim, do you take issue with the statement by Chief Justice Gibbs in Pochi v Macphee that any person born outside Australia whose parents are not Australian, which you have accepted means Australian citizen, and who has not been naturalised as an Australian, is an alien?

MR KEIM:   No, we accept that as a statement of the law, your Honour.

KIEFEL CJ:   But you say that just does not deal with your clients’ cases?

MR KEIM:   No, it does, your Honour, we say that should be applied to us but ‑ ‑ ‑

KIEFEL CJ:   But if it applies, you are aliens, are you not?

MR KEIM:   No, one of our parents is an Australian and that is sufficient.

KIEFEL CJ:   A citizen of Australia.

MR KEIM:   We say – yes, one of our parents is a citizen of Australia.

KIEFEL CJ:   Yes, I am sorry, I had forgotten that you distinguish between one parent and two parents.  But Chief Justice Gibbs was actually saying both parents, was he not?

MR KEIM:   Can I go to that passage, your Honour, because it is important. 

BELL J:   I think his Honour was saying it was open to the Parliament to treat as an alien a person who was born outside Australia whose parents, plural, were not Australian and who has not been naturalised as an Australian and your contention is one is not within that definition if a parent is an Australian and for present purposes we need not concern ourselves with the notion of whether the parent is a non‑alien or not because the fact is on each of the plaintiff’s case a parent was an Australian citizen at the time of the plaintiff’s birth.

MR KEIM:   Yes, your Honour.

KIEFEL CJ:   But the point is you do not gain that – your submission does not arise from what Chief Justice Gibbs said.  You cannot take from what his Honour said about both parents that one will do, can you?

MR KEIM:   Yes, well, we can, in terms of the way it is framed, in fact, in the way that her Honour ‑ ‑ ‑

KIEFEL J:   You were going to take us to that.

MR KEIM:   I will take your Honour to the passage.  We say it is consistent with the law in 1901 because all you needed to be a British subject was a father.  Now, we think that the law may have evolved from that particular patriarchal view.  So we say that what his Honour Justice Gibbs is saying in that is that if those three characteristics are not met then you are not an alien.

EDELMAN J: Well, this really does undercut then your second submission because as I understood – as I understand your second submission, your second submission really does depart from a legal conception of “alien” as governing section 51(xix) and it is saying it is relying upon probably a majority approach in Singh that “alien” at its core involves notions of outsider – outsider‑ship and for that reason it does not encompass Aboriginal people.  But now, in the first submission, you seem to be focusing very heavily upon a similar approach to that taken by Justice McHugh in Singh.

MR KEIM:   Your Honour is absolutely right.  What we say is that the law as stated by Sir Harry Gibbs and the law as it existed in 1901 did not envisage any special place in alienage law for indigenous people.  What we say is that applying the principles of construing the Constitution as an enduring document, that what was not considered in 1901 is a potential in the words in “alien” that is now crucial, that is, this Court reflects the changes in society by which what was understood as “aliens” in 1901 now has something which says that Aboriginal Australians just cannot be aliens or cannot have alienage bestowed upon them. 

At the narrowest, it is that an Australian Aboriginal cannot be an alien just because she was born overseas.  We say that that is something that the Court would recognise now which a court - would not necessarily have arisen in 1901 when travel was much less frequent in any event, so the question was unlikely to arise in 1901.

So, you are right, your Honour. We accept that our second proposition is - our first proposition is anchored very strongly in the meaning of “alien” as it was understood by the founders with minimal changes for the changes in values which have taken place in the 120 years. We say that our second proposition conversely is anchored in the social changes that have occurred since 1901 and requires the Court to find the potential in the words of section 51(xix) that were always there but would not have been recognised in 1901.

KIEFEL CJ:   Mr Keim, if one focuses just for a moment on the words adopted by the Constitution in relation to the power to legislate it is not one just with respect to aliens, it is called “naturalization and aliens” in 51(xix). 

MR KEIM:   Yes, your Honour. 

KIEFEL CJ:   “Naturalization” being understood to be the process by which you become ‑ ‑ ‑ 

MR KEIM:   An Australian national.

KIEFEL CJ:   No ‑ ‑ ‑

MR KEIM:   Sorry, your Honour.

KIEFEL CJ:   By which you become a non‑alien.

MR KEIM:   Yes.

KIEFEL CJ:   It is the cure for your being an alien.

MR KEIM:   Yes, your Honour.

KIEFEL CJ:   And in the legislation which has occurred that process is one by which you become a citizen.  Naturalisation equates in legislative terms to citizenship.  I do not think anyone has suggested that that is not within the naturalisation power.

MR KEIM:   No, that is right, your Honour.

KIEFEL CJ:   If that is the case, is not the dichotomy of “alien” and “non‑citizen”, which has been put to you earlier I think by Justice Nettle, evident as flowing from the Constitution and the powers with respect to naturalisation?  Is not that the position that prevails in Australia, that an alien is simply a non‑citizen?

MR KEIM:   No, your Honour.  If the power is exercised in a positive way so that ‑ ‑ ‑

KIEFEL CJ:   Which power?

MR KEIM:   If the naturalisation power is exercised in a positive way it does not ‑ ‑ ‑

KIEFEL CJ: But you are not challenging the Citizenship Act.

MR KEIM:   No, I am not, your Honour.  Well, I am, your Honour, challenging the Migration Act so far as it seeks to treat our clients as an alien.  Where the ‑ ‑ ‑

KIEFEL CJ:   You are not challenging the validity of any legislation as far as I was aware.  You are saying that, as I understood the case stated, it is that the facts and particular aspect of your clients as having aboriginality, as being Aboriginal persons, takes you out of any notion of status of aliens.

MR KEIM:   Yes, your Honour, so that those powers which are sought to be exercised with regard to us in an adverse way must be read down as being in excess of the power.

BELL J:   Your contention is that sections 189 and 198 of the Migration Act are invalid in their application to the plaintiffs by reason of the fact they are not supported by the aliens power, neither of the plaintiffs being aliens, for the reason that though each is not a citizen of Australia they fall within the outer boundary, if you like, of the concept of “alien” as that term is used in the Constitution because of their connection to Australia?

MR KEIM:   Yes, your Honour.  So far as we talk about ‑ ‑ ‑

KIEFEL CJ:   That is not invalidity.  It is just you say section 189 does not apply because your client is not an alien?

MR KEIM:   Yes, your Honour, it is just that.

KIEFEL CJ:   It is not invalidity we are talking about.

MR KEIM:   I accept what your Honour says, yes.

GORDON J: As I understood your argument about that, it was that if you look at it in effect chronologically, at Federation Aboriginal Australians were not aliens, the Citizenship Act did not affect that status. This is as I understood your argument.

MR KEIM:   Yes.

GORDON J:   And in a sense, because of their connection to land that in effect recognition of that by this Court and elsewhere has increased rather than decreased that recognition, and, yes, it is possible for someone by their Aboriginal descent to take a disqualifying step in respect of their being a non‑alien to bring about them being an alien, but there is no such disqualifying step here, as I understand you say.

MR KEIM:   Yes.

GORDON J:   And that if one goes back to the propositions that were put to you before, as I understand it, one then looks to see what is the definition of “Aboriginal Australian” and by that you pick up Justice Brennan’s description in Mabo.  Is that right?

MR KEIM:   Yes.

GORDON J:   Is that not a shorter route home for you than the other route?

MR KEIM:    Except that our learned friends say that being an Aboriginal Australian is irrelevant and ‑ ‑ ‑

GORDON J:   You are answering that, are you not, by the propositions that you have just accepted?

MR KEIM:   Yes.

EDELMAN J:   Speaking for myself, I think that is a much more logical and simpler starting point than the creation of a new edifice.

KIEFEL CJ:   It is in fact the question you pose in your written submissions at paragraph 3, when you describe the task of the Court as being:

to determine whether an Aboriginal Australian with at least one parent who is an Australian; who was born outside of Australia; who first arrived in Australia as a young child; has only departed Australia for brief, temporary periods; and is not an Australian citizen, is an “alien” for the purposes of s 51(xix) of the Constitution.

That is the way your case was presented to the courts and the defendants have prepared it really on that basis.  That is what we were to address.

MR KEIM:   Yes, your Honour, and that is what we are addressing.  I was asked right at the beginning do the two separate parts of the argument – are they independent bases and we say that they are.  We say that being born overseas ‑ ‑ ‑

KIEFEL CJ:   I am sorry, Mr Keim, that is not how you stated the question in your written submissions.  What has happened, I suspect, is that you have moved on and decided to – when you were preparing for argument you prepared, effectively, a new argument, one which focuses just on the Australian parentage.  If you wish to take up the time you have for oral argument on that and not on the basis upon which the argument was initially put, which focused upon the aboriginality of the plaintiffs, then that is a matter for you.  But, as I say, time is finite in this Court for oral argument and you have given your estimate.

MR KEIM:   I realise that, your Honour.  Can I just ‑ ‑ ‑

KIEFEL CJ:   The Justices are not being unhelpful to you.

MR KEIM:   I understand that, your Honour.  Can I just explain in answer to your Honour’s suggestion that we have thought up a new argument, our learned friends have responded to that by saying that aboriginality is irrelevant and being born overseas to an Australian parent makes you an alien.  We say that there is a satisfactory answer to both of those propositions.

Can I just perhaps deal with the Pochi matter first and your Honour the Chief Justice did ask me about that.  The report appears at tab 38.  The particular passage is at page 109 of the report, which is page 2973 of the joint book.  It starts at the bottom of page 109, in the last new sentence.  I would ask your Honours to read the sentence starting “However, the Parliament can in my opinion treat as an alien”.

GAGELER J:   You want to get some negative proposition out of that, do you?

MR KEIM:   We say this - yes, we do, your Honour.  We say ‑ ‑ ‑

GAGELER J:   I think we understand what you say, but where does the negative proposition come from?  Do we just get it out of these words or is there something more in the history?

MR KEIM:   There is something more than that, your Honour.

GORDON J:   The preceding few lines might help, where the Chief Justice  said, it seems, that you cannot expand the definition of “alien” to simply answer something which is beyond that in the Constitution.  In other words, Parliament cannot expand it just to make it mean whatever it thinks it means.

MR KEIM:   Yes, your Honour.

GORDON J:   That is a pretty good starting point. 

MR KEIM:   That is why we say there is an area where a person who is not a citizen can also be not an alien, because whereas Parliament tries to approximate what its view of what an alien is, Parliament can treat as aliens people who are not aliens.  We fall into that category, and Parliament is not entitled to do that.

KEANE J:   But the point about this passage is that Chief Justice Gibbs is distinctly not saying that anyone who falls outside this description is not an alien.  He is saying it is unnecessary to address the outer limits of the concept of “alien”.  He is saying whatever those outer limits may be this - the person he is describing - is within the limits.  He is not stating a negative proposition.  He is not saying these are the people who cannot be regarded as aliens.

MR KEIM:   I understand what your Honour is saying.  What we say with regard to that is that that test, when you look at the other parts of his judgment, is actually based on his view of the law as to what an alien is.  Can we just explain it in this way, and I will take your Honours to Quick and Garran in a moment.  We say that Chief Justice Gibbs is saying that if a person is born outside Australia that blocks the birthright pathway to Australian nationality.  Neither of the person’s parents are Australians.  That blocks the jus sanguinis pathway to being an Australian and has not been naturalised.  That blocks the exercise of the naturalisation power.

We say that although it has been framed in that negative way, each of those reverse‑positive propositions represent the Chief Justice’s view of the law at the time that he was deciding that case.  The reason why we say that is because he makes a reference to the law in Quick and Garran.  If I can take your Honours back to page 107 of the report, at the bottom of that page, page 2971 in the book:

To enable this highly technical argument to be understood it is necessary to refer to the manner in which the status of a British subject is acquired under the Australian Citizenship Act.  At the time of federation, the status of British subjects was governed mainly by the common law, which applied in both England and the Australian colonies, with some immaterial statutory modifications.

After his reference to Blackstone, he says at the top of the next page:

(See also Quick and Garran, The Annotated Constitution of the Australian Commonwealth, p. 599.)

If we can take your Honour to that, that is at tab 54, volume 10.  If your Honours can go to page 3965 of the book behind tab 54 ‑ ‑ ‑

KIEFEL CJ:   You might have to read it out since it is almost impossible to read:

MR KEIM:   Your Honour:

In English law an alien may be variously defined as a person who owes allegiance to a foreign State, who is born out of the jurisdiction of the Queen, or who is not a British subject.

Then the law is stated in the next couple of sentences:

The rule of the common law is that every person born out of the British Dominions is an alien, and that every person born within British Dominions is a British subject.

That was really the question that was before the Court in Singh:

This is known as the jus soli or the territorial test of nationality, which is contrasted with the jus sanguinis or the parentage test of nationality.

That is perhaps, your Honours, where I started to use “nationality” as a descriptor:

There are several exceptions to the territorial rule:  (1) legitimate children born out of the British Dominions, whose fathers, or grandfathers on their fathers’ side, were natural‑born subjects –

and so on.  So, what we are saying is that Justice Gibbs was representing in modern terms – was representing the jus soli test for nationality as at 1901, adjusted because he talks about parents - he does not talk about fathers and he does not talk about grandparents, he talks about parents - the jus sanguinis test, which is what is before the Court here, and he also talks about the naturalisation power, so we say that his Honour in formulating that test was having regard to what he saw was the definition of an “alien”.

KIEFEL CJ:   But there is a distinct majority, is there not, in Singh which holds that at the end of the 19th century pre‑Federation there was no fixed meaning given to the term “alien”.  There was no specific requirement for whether you fell within or without.  It was not completely settled.  As the Chief Justice in Singh pointed out, it was a matter referring to the class of persons of the plaintiff there.  The question of alienage was a matter for legislation.  That is what happened post‑Federation.  So, why are we spending time back in pre‑Federation common law, unsettled as it was?

MR KEIM:   We say the law was settled as Chief Justice Gibbs and Quick and Garran indicates.

EDELMAN J:   But one thing that Singh does decide is that Calvin’s Case does not govern the meaning of section 51(xix).

MR KEIM:   That is because, your Honour, the law at 1901, as Chief Justice Gibbs states, was an amalgam of the common law and statutes which were passed in 1730, 1772 and 1870.  In answer to your Honour Chief Justice’s question, what was dealt with in Singh, was the birthright pathway to nationality and what the court held – what we say the Court is holding in Singh should be understood as what was necessary for that case is that it is no longer sufficient to be born in Australia to not be an alien.  We say that it did not consider the jus sanguinis pathway to nationality and so it should not be held as authority in that case.  In terms of its statement that the law was unascertainable in 1901, if that is the way in which it is to be interpreted, we say the Court should depart from that. 

KIEFEL CJ:   I think their Honours said “no fixed meaning”. 

MR KEIM:   Yes.  Yes, your Honour.  We say that it did have a fixed meaning.  We say that that is indicated by Chief Justice Gibbs.  It is indicated by Quick and Garran, and we say ‑ ‑ ‑ 

KIEFEL CJ:   You say “fixed meaning” but different pathways. 

MR KEIM:   Yes.  It had a fixed meaning in which you could be a British subject ‑ ‑ ‑

KIEFEL CJ:   You could approach it by different methods.  That is a fixed meaning. 

MR KEIM:   What I am saying, your Honour, is yes, that it had a fixed meaning which involved two different ways in which you could be a British subject.  Both were accepted. 

KIEFEL CJ:   Mr Keim, in relation to Singh, do you say that there is a ratio or not? 

MR KEIM:   Yes, we say that in the most narrow approach to a ratio it is that a person born in Australia incidentally, if I can put it that way, whose parents are foreign citizens, is an alien.  In terms of the fixed meaning of the law, we say that Chief Justice Gibbs’ statement of the law in Pochi v Macphee is restated in longer terms by the minority in Singh.  Both Justice McHugh and Justice Callinan set out in some detail what was – what the 1870 Royal Commission stated, and subject to the fact that one of the recommendations was not put into law as we see from Quick and Garran, that statement of the law was the fixed meaning that would have been applied to the law if a case had arisen in 1902 or 1903. 

BELL J:   And that is on the way ‑ on your first argument, Mr Keim, but as, I think, you acknowledged somewhat earlier this morning, that does involve an essential inconsistency with the second way you put your case based on aboriginality.  Coming back to Chief Justice Gibbs, what Chief Justice Gibbs said in Pochi at 109 was that, firstly, a clear acceptance that the Parliament cannot by legislation define the outer limits of the concept for the Constitution of “alien”.  That matter was not raised in Pochi.  His Honour referred to the inability of the Parliament to include persons who could not possibly answer the description of “aliens” in what his Honour said was the ordinary understanding of the word. 

If one takes from Singh acknowledgement that the ordinary understanding of the word “aliens” for the purposes of 51(xix) did not and does not have a fixed meaning, that, as I would see it, is important to your argument on the second basis that you advance. 

MR KEIM:   Tempting as it is to agree with your Honour, can I just say this?

BELL J:   Yes.

MR KEIM:   In terms of construing the meaning of “aliens”, I say it is very similar to the approach that was taken by this Court in the St George County Council Case which is referred to by Chief Justice Gleeson in Singh, that is that one of the ways in which you construe the Constitution is to work out what the legal meaning of the word was at the time and we say that is the approach that Chief Justice Gibbs took, that is the approach that Justice McHugh in Singh took and that is the approach that Justice Callinan in Singh took.  What we say is ‑ ‑ ‑

GORDON J:   If you take that approach, then I think it is common ground, as I read the Commonwealth’s submissions, that Aboriginal Australians were not aliens at Federation.

MR KEIM:   They are not, your Honour, but our learned friends say ‑ ‑ ‑

GORDON J:   So let us just stop and take that in stages.  If that is right, why is that not your starting point and then move to say, well, what has happened since?

MR KEIM:   Because our learned friends say that if you are born overseas you are an alien.

GORDON J:   I know.  That is what your learned friends say.  I am asking you what your argument is.  I just do not understand why you do not embrace it.  Why complicate it?  As a starting point, it is common ground, as I read the Commonwealth’s submissions, that Aboriginal Australians were not aliens at Federation.

MR KEIM:   Yes, your Honour, but ‑ ‑ ‑

GORDON J:   And “Aboriginal Australians”, as I understand your submissions, has a particular descriptor which is that the test set out or the description set out – “test” is probably the wrong word – what has happened since to disqualify them?

MR KEIM:   Nothing, your Honour.  In fact, things have moved in the other direction and so we say even more strongly now that they are not aliens and certainly the accident of being born overseas does not make them an alien.  But we say also that the accident of being born overseas does not make people who are the children of Australian citizens aliens either.

KIEFEL CJ:   But your case is not that persons of Aboriginal descent who have a connection with Aboriginal communities in Australia but who are not born in Australia – I am sorry, I will start that again.  Your case is not as posited as accepted at Federation that Aboriginal Australians are citizens.  It is that persons of Aboriginal descent who were not subjects of the Crown and then came to be citizens of Australia are necessarily non‑aliens.  Your argument is that persons of Aboriginal descent who were born elsewhere are non‑aliens.

MR KEIM:   Yes, your Honour, we have to make out that case.

NETTLE J:   Because of their race.

KIEFEL CJ: That is not the case that is accepted at Federation though; it is different. It is not suggested that the power under section 51(xix) has been exercised by the Parliament to make Aboriginal Australians aliens, and that would be the kind of case that Sir Harry Gibbs and others were referring to and say it is beyond the power of the Parliament to make some people who are obviously not aliens, aliens. If there was a law which said Aboriginal Australian people – Aboriginal people born in Australia are aliens that would clearly be beyond power. That is the kind of area – but that is not this case.

MR KEIM:   No, your Honour.  We do not necessarily agree with what your Honour said that Sir Harry Gibbs was referring to, but that would be an extreme case and that would clearly come within what he said about Parliament’s inability ‑ ‑ ‑

KIEFEL CJ:   That would be an expansion of the power under 51(xix), the example I posited.

MR KEIM: Absolutely, your Honour. Your Honour, if I can turn to the second leg of our argument, as we acknowledge at paragraph 14 of our reply submissions there is no evidence in the historical record that, at the time of Federation, the law of nationality paid any heed to the possibility that Aboriginal Australians may have been thought to be aliens under the Constitution. It is unlikely to have been raised on many occasions in an era when travel was much more arduous for most strata of society and Aboriginal Australians were regarded as being on the fringes of colonial society, in any event. To support that last proposition we say the content of the now repealed s 117 of the Constitution is evidence that the framers of the Constitution at least regarded Aboriginal Australians in that way.

It is the plaintiff’s case that changes in the social and legal context, including the way in which the Australian community has come to understand the fundamental role played by Aboriginal Australians in Australian society, have led to different understandings of section 51(xix).

GAGELER J:   Mr Keim, before you come to the changes, could we just go back to 1901.

MR KEIM:   Yes, your Honour.

GAGELER J:   In volume 10 of the joint book of authorities – I am not sure who is responsible for putting this in – there is behind tab 53 a report from the Select Committee on Voting Rights of Aboriginals.  At page 1433, which is also helpfully numbered page 3947, there is an opinion by Professor Sawer which goes directly to the question at about point 3 of the page.  You see there is a sentence:

After 1901, the Commonwealth acquired concurrent power with the States on nationality questions (sec.51(xix), but did not deal with nationality by birth . . . It is clear that on these principles –

That is, the principles applicable in 1901:

every aboriginal native of Australia born in Australia after 1829 . . . became a British subject by birth; his race was irrelevant, and there were no other circumstances capable of qualifying the allegiance.

Now, do you accept that as the starting point?

MR KEIM:   Yes, your Honour.

GAGELER J:   Thank you.

NETTLE J:   You are pushing an open door, because that is what the Commonwealth accepts.  The Commonwealth accepts that was the position.

MR KEIM:   Yes.

EDELMAN J:   Except you say that the reason why Aboriginal people are not aliens, in 1901, was not because they were British or was not only because they were British.

MR KEIM:   Yes, your Honour.  That is how the law regarded them in 1901, particularly the phrase that ‑ ‑ ‑

GAGELER J:   When did race become relevant, on your submission?

MR KEIM:   We say that it became relevant by the time of our client’s birth, but we say that somewhere the judicial recognition of those changes occurred after their birth.  So the question arises at this point in time.  We want to take the Court to what was said in Mabo and other cases to indicate that change of values.

EDELMAN J:   But why was race not relevant in 1901?  If we are not governed in the meaning of “aliens” by a strict legal meaning and if there are some ordinary conceptions of the word that lie at the core of the power, why would not one look to the literal meaning of the word, which is “from another place”, and that in 1901 Aboriginal people were not from another place?

MR KEIM:   We accept that, your Honour.  We accept that in the sense that, while it may not have been recognised if the question had arisen then, what we say about Australian Aboriginals’ fundamental connection with Australia and with the Australian community ab origine that it was a basis for not treating them as aliens in 1901.  What we say is that the changes which have occurred now mean that this Court should recognise that, whereas the Court may not have recognised it in 1901.  I am not sure if I have answered your Honour’s question.

KIEFEL CJ:   Mr Keim, the Court will take its morning break.

MR KEIM:   Thank you, your Honour.

AT 11.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

KIEFEL CJ:   Yes, Mr Keim.

MR KEIM:   Thank you, your Honour.  A question that your Honour Justice Gageler asked me earlier was the reference in Justice Kirby’s judgment in Singh to the terminology of “non‑citizen non‑aliens”. That can be found at page 408 of the report, page 6633 of the joint book at paragraph 234. In terms of the changed understandings and values, changes in the social and legal contexts which we say have taken place since 1901, we say may include a better understanding of the fundamental role played by Aboriginal Australians in Australian society; may also include the adoption of newly articulated values going to the need for the law to be consonant with notions of justice. In this new context section 51(xix) does not comprehend that Aboriginal Australians fall within the concept of “aliens” in the ordinary – or that they are alien to the Australian community in the ordinary sense of those words.

We will not take the Court to the various paragraphs, particularly in Chief Justice Gleeson’s reasons in Singh, which talk about the importance of the Constitution being an enduring document. He quotes Sir Alfred Deakin from a speech in 1903. He does make a reference at paragraph 18 on page 335 to the need to “explore the potential inherent” in the words of the Constitution as time goes on.

But if we can summarise the various phrases that have been used by Chief Justice Gleeson, also by Justice Kirby at paragraph 246, Justice McHugh at paragraph 53 and by the plurality at paragraph 160, the sorts of phrases used are developments “in the national and international context”, the aspects of the present of which the founders had no “capacity to foresee”, the circumstances differing “widely from the expectations” then held, the changed needs and the new problems, the changing circumstances, the “life and progress of the community” and/or the changed wishes and expectations which allow us to press upon - and the changed wishes and expectations.  We say all of those phrases are applicable to the task which we say is before the Court in dealing with our second proposition.

In terms of the potential in the inherent meaning of the words, which your Honour Justice Edelman I think raised with me, we have given the Court definitions of “alien” and “aborigine” from the 6th edition of the Macquarie Dictionary.  We say that outside its technical legal meaning, “alien”, which is derived from “aliēnus”, meaning belonging to another, means “outsider”, “foreign; strange; not belonging”.  “Aboriginal”, in contrast from “ab origine”, means from the beginning, from the earliest period, “from the source”.

In terms of recognition of new values, can we just note the number of the international instruments which Australia has become a party to. They include the Universal Declaration of Human Rights, which is a non‑binding instrument, in 1948; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Racial Discrimination; and, in more recent times, Australia joined itself to the Declaration on the Rights of Indigenous Peoples.  A number of those instruments use a phrase of which – this is an example that goes across a number of instruments:

recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

They go on to recognise that human rights derive from the inherent dignity of the human person.  In terms of how those values might be different from those values that guided the drafting of the Constitution, can we ask the Court to go to a passage in Singh in Chief Justice Gleeson’s reasons at page 341 of the report, paragraph 31, page 3566. His Honour was there discussing aspects of the Convention Debates concerning the rejected proposal for a citizenship power. His Honour then notes something said by Sir Isaac Isaacs. In particular, I draw the Court’s attention to about four lines from the bottom, starting with the sentence:

Some regarded a definition of citizenship as unnecessary.  Some saw the proposal –

and then particularly going from the third last line “He expressed concern”, I would ask your Honours to read the rest of that paragraph on the top of the next page about race being of “great concern to the framers”. 

In his Honour’s statement: 

The subject of race was of great concern to the framers, and their views on that matter quite different from those which now prevail.

So that evidences the values at the time, and we say that the international instruments which Australia has adopted or ratified indicate the change in values of the Australian community over that period of time.  We wanted to take the Court to various passages in decisions in this Court which reflect those changes in the values.  Perhaps we could start with a decision in the Federal Court of Milirrpum v Nabalco. 

GAGELER J:   Does the 1967 referendum have anything to do with your argument that you rely on? 

MR KEIM:   It does, your Honour, and I intend to take the Court to passages in the Tasmanian Dam Case in which some comment is made with regard to the impact of that.  We say it does indicate a change in values with regard to - and change in recognition of Aboriginal people that is not found in the Constitution as it was originally written, and that is reflected in the judgment in the Tasmanian Dam Case.  Have I answered your Honour’s question?

GAGELER J:   You can point generally to changes in values, but is there anything specific upon which you rely that has occurred since 1901 that you wish us to take into account?

MR KEIM:   There is, your Honour.  I want to take your Honours to the joint reasons of Justices Deane and Gaudron in Mabo (No 2) in which their Honours say that the common law’s role in dispossession - in promoting the doctrine of terra nullius and recognising the role of terra nullius in fact contributed to the dispossession and oppression of Aboriginal peoples.  That was a reason those two judges gave for the need to change the common law.

What we say with regard to this case is that this Court has to give a meaning to “aliens” in the Constitution which raises similar questions.  I know that the Court cannot just do what it likes and I know that expounding the common law and construing the foundation document, the Constitution, are two different judicial tasks.  But what we say is that to interpret the aliens clause in the Constitution to say that it is all right to remove Aboriginal Australians from their country, from the country which they have occupied for 80,000 years, on the mere basis that they happened to be born overseas is a similar proposition - it is another dispossession in itself and it raises similar challenges to what endorsing terra nullius raised with this Court - for this Court in 1992.  I hope I have answered your Honour’s question because I cannot say very much more.

Your Honours, can I just say something briefly by way of conclusion in relation to the second way our friends put the case which I have already dealt with in significant part in the submissions I have already made.  But, in answer to a question that your Honour Justice Gageler asked, our friends first said that the law was as stated in Sawer and in Quick and Garran and your Honours were taken to both of those passages. 

I will not take your Honours back to it but the Quick and Garran passage – I might take your Honours back to it, if you will forgive me.  It is in volume 10, tab 54, because this is the passage – page 599 halfway down the page.  I think it is 3965 in the book.  Under the heading “Aliens” in the middle of that page:

In English law an alien may be variously defined as a person who owes allegiance to a foreign State –

We have that present here:

born out of the jurisdiction of the Queen –

We have that present here:

who is not a British subject.

We have that present here.  So, if that is the applicable criteria, all three of those limbs were satisfied on the facts of both plaintiffs.  It was said that – and your Honours will recall Professor Sawer said all Aboriginal persons, at least from 1829, were British subjects and race was irrelevant.  Your Honour Justice Gageler said, well, when did race become relevant?  The answer was at some time before the plaintiffs were born, which was 1979 or 1985, but the mechanism by which criteria about legal status where race was irrelevant became subject to a requirement where race was relevant was, in my submission, never satisfactorily explained. 

Your Honours were taken to passages that – with which we do not quibble, where the Court has recognised the long and deep connection to the land of Australia’s indigenous persons and to passages that recognise an evolution in understanding of the relationship between the Australian body politic and indigenous persons.

But those developments in the law are developments in the law that cannot just be assumed to translate to introduce new criteria into a different area of legal discourse and certainly not in circumstances where – as your Honour the Chief Justice pointed out - there were mechanisms available under the laws that would have made it possible for the connection to land to be maintained. 

So this is not, in my submission, a case of dispossession.  The fact that particular people with particular characteristics can be treated as aliens cannot properly be generalised to a proposition about indigenous persons more generally.  The Constitution now – now, post 1967, does not use the words “Aboriginal person” or “Aboriginal race”.  It does not appear. 

That is discussed by Justice Deane in Tasmanian Dams at 272 and 273, and you have been taken to it.  In my submission, there are real dangers in picking up the three‑part definition, which is a definition proffered by Justice Brennan and, I think, used by Justice Deane as well, but principally reflected in legislation that has been enacted dealing in various ways with Aboriginal persons, Aboriginal representative bodies, different government programs, it has been used in a statutory context in many ways and it has evolved over a period of time.

So up until I think around the 1980s, the concept of an “Aboriginal person” would principally have been focused on biological descent and the inappropriateness for that was recognised and the additional second and third criteria were developed for various purposes.  But ultimately, none of that – the words themselves, “Aboriginal person”, do not appear in the Constitution, and there are dangers in taking a concept of that kind and constitutionalising it, which is what your Honours are being asked to do because you are being asked to read the phrase in, as a limit on 51(xix), and then to give it a meaning that constrains the reach of a head of power which, according to ordinary principles, should be construed with all the generality that the words admit. 

As a matter of ordinary theory of constitutional interpretation, your Honours should not, in my submission, read in language of that kind, certainly without the foundations that are absent here because of the clear meaning of the boundaries of that legal status reflected in the authorities. 

To the extent that the three‑part test calls for self‑identification and group identification, it certainly seems to have the potential to operate in such a way that status depends on things that happen in Australia - the person, to take the example of my hypothetical person who grew to adulthood overseas and then moves to Australia and connects with the indigenous group and is recognised as a member. 

If the effect of the argument is that a person in that category arrives in Australia as an alien ‑ because at that time they do not meet the three‑part test ‑ but come, over time, to meet the three‑part test, then that would be to recognise the possibility that alienage can be lost by a process outside the process of parliamentary naturalisation and that is something this Court has emphatically denied. 

In Pochi, for example – I will not take your Honours to it – but in Pochi at page 111, Chief Justice Gibbs, with Justices Mason and Wilson agreeing, said the argument that a person can cease to be an alien by absorption:

is impossible to maintain –

and the Court in Te likewise held you cannot cease to be an alien by any mechanism other than legislative naturalisation.  So if the test operates in that way then it collides with another area of authority.  Your Honours, we otherwise rely upon our written submissions.

Can I make one closing point about relief?  It is a minor point.  If your Honours go to either of the questions in the special case you will see the question your Honours are asked to answer is:

Is the Plaintiff an ‘alien’ within the meaning of s 51(xix) of the Constitution?

That question follows the form of the question the Court answered in Singh, and your Honours may be content with it.  In my submission, it is a little infelicitous in the sense that it suggests that one can answer the question is the person an alien by reference to the direct application of the constitutional meaning without looking at the question of how Parliament has dealt with the person.

KIEFEL CJ:   Are you suggesting more of a speaking order?

MR DONAGHUE:   I was going to suggest, your Honour, that it might be better phrased as saying, “Is the plaintiff within the reach of the legislative power in 51(xix)?”  It might frame the issue more accurately but, ultimately, whether reframed or not, the answer is, no, in our submission.

BELL J:   Mr Solicitor, do you accept that each of the plaintiffs meets the tripartite Justice Brennan test in Mabo (No 2)? 

MR DONAGHUE:   The answer to that question is no, but I do not affirmatively advance a submission against that proposition.  If your Honours are against us – against the arguments I have raised – and you find that this is a relevant criteria, then you will need to answer that question.  Your Honour drew attention to – can I interrupt my answer to your Honour to say I misspoke.  The answer to the question is yes, not no.

KIEFEL CJ:   I was wondering why this was not in the Federal Court.

MR DONAGHUE:   Yes – a fair question, your Honour – my apologies.  Your Honour, the facts about satisfaction of the three‑part test are not within our knowledge.  They are within the knowledge of the plaintiff.  The facts that we were asked to agree, and did agree, as your Honour noted in questioning, are different between the two plaintiffs.  The difference includes, in the case of Mr Love, that – by contrast, Mr Thoms is agreed to be a person who identifies and is accepted by the Gunggari people as a member of the Gunggari people.  By contrast, Mr Love identifies as a descendant of the Kamilaroi tribe and is recognised as a descendant of the Kamilaroi tribe by one identified elder.

So, one does not have a fact about membership of the group in relation to Mr Love, and one has a fact about one person.  If your Honours get to this point, you will have to marry that up with whatever tests you identify as appropriate.  I note that the way Justice Brennan framed it – he was talking about identification in the plural.  So, there would be a question there for your Honours.  But, in our submission ‑ ‑ ‑

GORDON J:   He is talking about mutual recognition, you mean.  Is that what you mean by plural?

MR DONAGHUE:   Mutual recognition but, also, he did not seem to be suggesting that if you could find one person who recognised you as a member of the group that that would do it and, yet, that is what you have in relation to Mr Love.  But we are conscious of the historical difficulties that have attended questions of definition in relation to Aboriginal persons.  We have preferred to approach the case at the level of urging your Honours not to read in a definition of that kind.  But, if we are wrong about that, then I do not affirmatively submit either way.  If the Court pleases.

KIEFEL CJ:   Thank you, Mr Solicitor.  Anything in reply, Mr Keim?

MR KEIM:   Yes, please, your Honour.  I am aware that the time is late. 

KIEFEL CJ:   We have not finished yet.

MR KEIM:   I am sorry, your Honour?

KIEFEL CJ:   Time is not up. 

MR KEIM:   Yes.  Thank you.  I wanted to deal at the level of principle with the distinction that our learned friends make with regard to the concept that a person is an alien and the concept that a person may be treated as an alien.  Of course this must be taken in the text of the conceded point by our learned friends that Parliament’s power comes from 51(xix), so the person must be an alien before the Parliament has any power to deal with the matter.

It is important, in our submission, to be conceptually clear and it is important not to confuse the width of the power itself and this can be done if one reads some of the statements in the cases out of context.  The power is a very strong power ‑ I will give some examples of that in a moment – but it is only exercisable with regard to a person who is constitutionally an alien.

KEANE J:   So you are submitting that the meaning of the term “alien” was fixed at 1901?

MR KEIM:   No, we are not, your Honour.  We are saying that “alien” in 1901 had a clear, ascertainable meaning of the kind set out in Quick and Garran and of the kind set out in detail in the 1870 Royal Commission, which we have given your Honours copies of, and as set out in more detail in the reasons of Justices McHugh and Callinan in Singh.  So what the law in 1901 was is clearly ascertainable and we say that also is recognised by his Honour.

KEANE J:   So that Parliament cannot add to the concept of alienage?

MR KEIM:   The Parliament can only deal with people who are aliens ‑ ‑ ‑

KEANE J:   Sure.  So is that your submission that the Parliament can only make laws with respect to people who satisfy the term “alien” in 1901?

MR KEIM:   No, your Honour.  The second aspect of it is, in accordance with those principles of interpreting or construing a constitution that is difficult to amend and is intended as an enduring document – and I gave your Honours the citations without taking your Honours to those paragraphs – the Court can come to a view of the meaning of “aliens” in 1920 which may be different to the view that the Court would have taken in 1901.  As with any other power in the Constitution the connotation, as opposed to the denotation – I probably put that the wrong way round – of the words can change over time. 

A good example is Cheatle v The Queen where this Court held that unanimity of a jury was a fundamental point that could evolve or, at least, had evolved but other aspects of the law with regard to juries in 1901, like the fact that they had to own property or they all had to be male, those matters were matters that had evolved over time with the changing standards.

Our second point is based on that power of the Court to re‑visualise the words in the Constitution in the context and that is why the authorities such as Sir Alfred Deakin, cited in Justice Gleeson’s reasons in Singh, that is why the Constitution is written in broad terms.  So, if one looks at the Parliament and the Court together, the law with regard to aliens will evolve over time but at any point in time it is 51(xix) as interpreted by the Court which decides who is an alien.  That is the starting point. 

Then, I move to an area that is not far removed from the position taken by our learned friends.  The power with regard to aliens includes both negative and positive aspects.  The most obvious positive aspect is that the Parliament can treat any person who is an alien and turn them into a citizen by naturalising them.  So that is a positive power. 

So in that sense – and our learned friends indicated this, a person who is an alien, the Parliament can say this group of people who are aliens by the effect of the Citizenship Act at birth they become naturalised and they are treated as citizens, or the Parliament can say this group of aliens, if you want them naturalised you have to apply, you have to live in Australia for 10 years and your naturalisation will be subject to a decision by the Minister in accordance with the criteria laid down in the Act.

So, that positive power of naturalisation does give the Parliament a great deal of leeway as to who they treat as welcome aliens and turn them into citizens and who they treat as unwelcome aliens and they remove them from the country as soon as possible.  There is also the negative aspects of the power which I have just alluded to which is the power to detain people for the purpose of removing them from the country and the power to strip away their citizenship, the power to denaturalise them and that is very clear in Meyer v Poynton, which is one of the cases that we have given your Honours. So, we say, that it is not a fudgy approach to what “aliens” means in section 51(xix) but neither is it a fixed approach. It is an approach that will change over time.

The other aspect in which we disagree with this fundamental approach of our learned friends in this regard is we say they turn the law as at 1901 upside down.  As we said to the Court earlier, the law in 1901 bestowed rights on people to be British subjects and so anybody who had those rights if the British Parliament had a written constitution would not be able to be taken away.  We have – so you do not say, well, in 1901 there were some rules with regard to foreign allegiance, therefore, you can make anybody who has foreign allegiance an alien. 

What you have to look at is look at the context in which foreign allegiance is relevant, look at the rights associated with birthright, look at the rights associated with nationality by descent and see what those rights were then.  This Court can, as it did in Singh, as we say it did in Singh, the Court can say if Ms Singh was born in Australia in 1902 she would not have been an alien.

But in effect what the Court has said in Singh is, “There has been a period in which circumstances have changed.  We now think that we should read “alienage” to give the Parliament a slightly broader power than it would have had in 1902”.  So it is not fixed.  It is not immutable.  It can evolve.  But it is this Court who decides to what extent it has evolved and what the meaning of “aliens” is at any time.  That is the position we take.

The other sorts of cases - we say the law in 1901 was not a case of cross‑currents and we say that the rights associated with being a British subject are quite different from the patents power and the inventions power, because inventions are completely unpredictable as to how the future will change.  But we say that this case is like Cheatle.  This case is like St George County Council, which Chief Justice Gleeson referred to in Singh, in that you looked at what “trading corporations” meant in the law in 1901 in order to interpret it today.

That does not mean that it could not have changed from 1901, but in order to understand what it meant you had to look at the law in 1901.  Also, Cole v Whitfield is a very good example of - the way in which section 92 was understood in 1901 was very, very influential in the decision in Cole v Whitfield.  In fact the Court tended to say that there had been very little evolution in the meaning during that period of time.

One other reason – no, I will not cover that, your Honours, not in reply.  In answer to your Honour Justice Edelman’s question ‑ I am not saying that this is the last word on the subject – in volume 2 at tab 12, we have included the 1870 Act, which was passed in the light of the recommendations of the 1869 report of the Royal Commission, and there is a provision in there allowing aliens to own property.  What we do not know, is whether that was declaratory of previous law, or whether that was the point in time when the rights changed. 

BELL J:   What page number in the volume is that? 

MR KEIM:   I am sorry, your Honour.  It is page 797. 

BELL J:   Thank you. 

MR KEIM:   And it is at tab 12.  With regard to Ame, we would just point out that Ame was decided on the basis of the territories power, and so any rearticulation of what they saw as the principles in Singh, did not go to the heart of the decision.  In M76 at paragraph 265, where our learned friend said that his Honour Justice Kirby had recanted, Justice Kirby’s words in paragraph 265 really have to be understood in the context that in the earlier cases he had been talking about being a British subject.  So it is not accepting the logical impossibility that non‑citizen and alien must be exactly the same thing. 

With regard to the reference to Quick and Garran, the opening words are really a definition of what the concept was generally understood to be and the following words to which we took the Court is an elaboration of what the law was at the time of that publication, in our submission. 

One last point in response to our learned friends - we are not suggesting that the three‑part test for aboriginality be constitutionalised.  Whatever that test is, as to whether a person is an Aboriginal or not, whatever facts the person can put before the Court to indicate to the Court or to indicate to the Executive that they are Aboriginal persons, that is a matter that is not part of the Constitution and is not a part of section 51(xix).

It is the inherent fact that a person is an Australian Aboriginal which we say is now a matter which is part of the construction of section 51(xix). It is not constitutionalising the test; it is elaborating the principle that is contained in the test, in our submission. Back to your question, Justice Edelman, at tab 54, at page 3966 – so it is the last page of the extract from Quick and Garran – in the second last paragraph, the sentence which starts “The Act 7 and 8 Vic.” indicates that in 1844 that Act, of that year:

first allowed aliens to take and hold every species of personal property—but not real property –

So it would seem that the 1870 Act may in fact be the first legislation with regard to real property.  Your Honours, we have not placed any evidence

before the Court, but the internet does reveal that South Sudan grants South Sudanese citizenship to great grandchildren of South Sudan children.  So if you are looking for an extreme example, there is one.  That is all we had.  Thank you, your Honours.

KIEFEL CJ:   Yes, thank you, Mr Keim.  The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.

AT 4.21 PM THE MATTER WAS ADJOURNED