Nolan v The Honourable Clyde Holding Minister of State for Immigration and Ethnic Affairs

[1988] HCATrans 115

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M30 of 1987

B e t w e e n -

THERRANCE WILLIAM NOLAN

Plaintiff

and

THE HONOURABLE CLYDE HOLDING

MINISTER OF STATE FOR IMMIGRATION

AND ETHNIC AFFAIRS

First-named Defendant

and

THE COMMONWEALTH OF AUSTRALIA

Second-named Defendant

Demurrer

Nolan

MASON CJ

WILSON J	>
BRENNAN J DEANE J DAWSON J
TOOHEY J
GAUDRON J
TRANSCRIPT OF PROCEEDINGS Al' CANBERRA ON WEDNESDAY, 8 JGNE 1988, AT 10.37 AM
Copyright in the High Court of Australia

ClT 1/1/ND 1 8 I 6 I 88

MR R. CASTAN, QC: If the Court pleases, I appear with my

learned friend, MR P. ROSE, for the plaintiff in

this matter. (instructed by Juliano, Ford & Co)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with MR R.R.S. TRACEY for the defendants. (instructed by the Australian

Government Solicitor)

MASON CJ:	Yes, Mr Castan.
MR CASTAN:	Your Honours, in this matter there is raised questions concerning the application of provisions
of the MIGRATION ACT to a person who came to Australia in 1967 as a 10 year old and in respect
of whom there was issued a deportation order in 1985.
The MIGRATION ACT was amended in 1984 in relevant
respects and before turning to the argument and
the summary - perhaps I will hand Your Honours the
summary and then turn to the background statutory
material.
MASON CJ:	Thank you.

MR CASTAN: If Your Honours please, may I before turning to

the argument, take Your Honours to the provisions
of the MIGRATION ACT as it was applicable in respect

of the plaintiff prior to 1984. I seek to draw

Your_H?nours' attention only to a couple of the

provisions.

MASON CJ:	What particular version of the Act do you have in
front of you, Mr Castan?
MR CASTAN:	I was using the reprint of 1973, Your Honours, which suffices for present purposes.

WILSON J: Unfortunately we have the reprint as at

31 May 1985 which carries the 84 amendments.

MR CASTAN:  Yes, we had, I think, specifically included on

our list - sought to draw attention to the

desirability of access to the pre-1984 position.

(Continued on page 3)

ClTl/2/ND	2	8/6/88
Nolan

MR CASTAN (continuing):  I think that was confirmed with the

Registry in discussion.

DAWSON J: Well, we have the 1958 Act.

MR CASTAN:	Yes, it is marked 1958 but what I sought to draw Your Honours' attention to was the form of the
Act prior to the 1984 amendments,  most conveniently
found in the 1973 reprint volume.
MASON CJ:	Yes, it is 773 of the 1973 reprint volume.
MR CASTAN:	I can, I think, fairly simply and clearly indicate

to Your Honours what the relevant matters are that

we seek to draw to Your Honours' attention in the

Act in that form while copies are being obtained for Your Honours. Section 12 of the Act, as it

then was, dealt with a situation of what are described

in it as a person who is an alien and section 12

provided:

Where (whether before or after commencement

of this Part) and alien has been convicted

in Australia of a crime of violence against

the person or of extorting any money or thing

by force or threat, or of an attempt to commit
such a crim~ or has been convicted in Australia

of any other offence for which he has been

sentenced to imprisonment for one year or

longer, the Minister may, upon the expiration

of, or during any term of imprisonment served
or being served by that alien in respect

of the crime,. order the deportation of that

alien.

So there was a provision there in section 12 providing

for deportation of aliens and that was expressed

in a:iunlimited way and there is a definition of

aliens to be found in that Act in section 5.

(Continued on page 4)

ClT2/l/AC	3	8/6/88
Nolan

MR CASTAN (continuing): Section 5 of the Act confines

a definition of "alien":

"alien" means a person who is not -

that is at page 774 of the print:

(a) a British subject;
(b) an Irish citizen; or

(c) a protected person;

And the concept of British subject is dealt with	in the provisions of the AUSTRALIAN CITIZENSHIP
ACT 1948. That Act in section 7 - and that is
unchanged for all practical purposes, the present
print suffices - provides:

A person who, under this Act, is an Australian citizen or, by a law -

I am sorry, Your Honours, I have expressed that

too broadly. The Act, as then was, provided that:

A person who, under this Act, is an Australian

citizen or, by a law for the time being in
force in a country to whi~h this section

applies, is a citizen of that country has,

by virtue of his Australian citizenship or

his citizenship of that country, as the case
may be, the status of a British subject.

And then it goes on to provide - the countries to

which the section applies are set out. I am

referring to the position prior to 1984 at the

moment, Your Honours, as applicable in tel!'Ills of the

MIGRATION ACT prior to 1984. Your Honours will

see that tlUnited Kingdom and Colonies"·is included

in the list in secticn 7(2). There is a definition

on page 2 of the print of the United Kingdom and

Colonies in section 5 of the AUSTRALIAN CITIZENSHIP ACT

as it was.

"the United Kingdom and Colonies" means the

United Kingdom of Great Britain and Northern

Ireland together with its Colonies, the
Channel Islands and the Isle of Man.

(Continued on page 5)

CIT3/1/JM	4	8/6/88
Nolan

MR CASTAN (continuing): So that the word "alien" in the

Act as it previously was, did not include a person

who is a subject of the United Kingdom as defined.

We then go back to the MIGRATION ACT in its

previous form, prior to 1984. Section 13 provides:

Subject to section fifteen of this Act, where
(whether before or after the commencement of

this Part) an immigrant -

Your Honours will then see that there is a separate

set of provisions applying to personswho are defined

as "an immigrant". Then, a series of provisions:

(a) has been convicted in Australia of an
offence punishable by death or by imprisonment

for one year or longer, being an offence

committed within five years after any entry

by him into Australia;

(b) has been convicted in Australia of an

offence by reason of being a prostitute or of

having lived on, or received any part of, the

earnings of prostitution or of having procured

persons for the purposes of prostitution, being

an offence committed within five years after
any entry by the immigrant into Australia; or

(c) is, within five years after any entry by

him into Australia, an inmate of a mental

hospital or public charitable institution,

the Minister may order the deportation of the

immigrant from Australia.

Section 14 provides a similar distinction.

Your Honours will see in Section 14(1):

of an alien (whether in Australia or elsewhere)	If it appears to the Minister that the conduct
has been such that he should not be allowed to
remain in Australia, the Minister may, subject
to this section, order the deportation of that
alien.

Your Honours will see that there is no time restriction

imposed on section 14(1) just as there wasno time

restriction imposed in the legislation as it stood

under section 12, both of those being provisions

providing for deportation of aliens. Section 14(2)

provided that:

Subject to the next succeeding section, if it appears to the Minister that, in the case of

an immigrant who entered Australia (whether

before or after the commencement of this Part)

not more than five years previously -

ClT4/l/SH	5	8/6/88
Nolan

(a) his conduct (whether in Australia or

elsewhere) has been such that he should

not be allowed to remain in Australia; or

(b) he is a person who advocates the

overthrow by force or violence of the

established government of the Connnonwealth

or of a State or of any other civilized

country or of all forms of law, or
advocates the abolition of organized
government or the assassination of public

officials, or advocates or teaches the

unlawful destruction of property, or is

a member of an organization which

entertains and teaches any of the doctrines

and practices speci·fied in this paragraph,

the Minister may, subject to this section,

order the deportation of that immigrant.

So, a different set of further possible deportation

criteria were provided for with respect to immigrants,

different both to those in section 13, dealing with
conviction and living off the earnings of prostitution

and mental hospitals and so on and different also to

the aliens provision, both in 12 and 1~ which were

unlimited as to time.

(Continued on page 7)

ClT4/2/SH	6	8/6/88
Nolan

TOOHEY J:  Mr Castan, are those provisions relating to aliens,

on the one hand and irnmigrant on the other,

mutually exclusive or is there any area of overlap?

MR CASTAN:  No, they are not mutually exclusive, Your Honour.

They may overlap considerably because an irnmigrant, of course, encompasses any person who comes as an

immigrant, which would include numerous persons who

would be aliens and numerous persons who would be

non-aliens or because they are as defined British
subjects by reference to the definitions as they
stood. So there is a considerable area of overlap
but also, we would submit, a considerable area for
separate operation, at least with respect to aliens
entering Australia, for reasons which we will come

to and for reasons which appear to have been

acknowledged, at least, in the structuring of this

legislation as it stood. The legislature appears

to have sought to draw both on the immigration power,
but to have provided -perhaps acknowledged- the

doctrines established in this Court, that there is

an ultimate limit on the immigration power, in terms

of migrants arriving in Australia and becoming part

of the community while, on the other hand, relying

upon the alien's power in section Sl(xix). The

doctrines of this Court seem to make it clear, and

we certainly do not seek to argue otherwise, that

an alien, of course, remains an alien however long

absorbed and therefore may be deported without

limit as to time.

Can I then briefly turn to the provisions of

the MIGRATION ACT as it applies currently, as it applied as from
1984 - I am not sure of the date, I do not Lnink it

matters for present purposes. 2 April, I am

indebted to my friend - as from 2 April 1984 and

as it was applicable at the time the deportation
order in question was in fact made.

(Continued on page 8)

ClTS/1/SR	7	8/6/88
Nolan

MR CASTAN (continuing):  The deportation order was purportedly

made pursuant to section 12 of the MIGRATION ACT 1958

as amended in April 1984. The deportation order

was made, I think, in September 1985. And section 12

of the Act as it became and as it now is, is as

follows:

Where:

(a) a person who is a non-citizen has, either

before or after the commencement of this section,

been convicted in Australia of an offence;

(b) at the time of the commission of the

offence the person -

(i) was not an Australian citizen; and

(ii) had been present in Australia as a permanent

resident for a period of less than 10 years

or for periods that, in the aggregate, do

not amount to a period of 10 years; and

(c) the offence is an offence for which the

person was sentenced to death or to imprisonment

for life or for a period of not less than

one year,

the Minister may order the deportation of
the person.

Section 14 deals with deportation for other reasons including, "threat to the security of the Commowealth" -

I will not read the whole of it, or go through

the whole of it, it is not directly applicable

to this case.	I simply draw attention to the first
two lines:

If it appears to the Minister that the conduct

(whether in Australia or elsewhere) of a person

who is a non-citizen -

the category of persons in respect of whom

sections 12 and 14 of the Ac~ as it now stands,

being confined to a single category of persons

defined as non-citizens.

(Continued on page 9)

ClT6/l/AC	8	8/6/88
Nolan

MR CASTAN (continuing): For completeness may I take

Your Honours, since it is relevant to this case,

to section 14A, as it is now to be found, which

provides:

Where a person has been convicted of any

offence (other than an offence the conviction in respect of which was subsequently quashed) the period (if any)

for which the person was confined in a
prison for t..1-iat offence shall be
disregarded in determining, for the
purposes of section 12 and sub-section 14(1),

the length of time that that person has been

present in Australia as a permanent resident.

(2) In section 12 and sub-section 14(1),

"permanent resident" means a person

(including an Australian citizen) -

I will not go through that definition, but perhaps more significantly subsection (3):

For the purposes of this section -

(a) a reference to a prison includes a

reference to any custodial institution at

which a person convicted of an offence may
be required to serve the whole or a part

of any sentence imposed upon him.

It is not necessary to go - perhaps I should just

take Your Honours to section 5, the definitions, where

the words "non-citizen" are defined and:

"non-citizen" means a person who is not an

Australian citizen.

The only other comment relevant for present purposes

in relation to the statutory material is to mention

that the definitions of "British subject" that I

referred to in the AUSTRALIAN CITIZENSHIP ACT were
also repealed in 1984.	Now, the net position we
have is thus that - - -

WILSON J:  Excuse me, Mr Castan, that section 7 was repealed,

because it appears in the reprint as at July 1985.

MR CASTAN:  There is a minor confusion about that. The

position is that that section 7 was still applicable

in 1985. It was repealed by an Act passed in 1984

but was not proclaimed and did not come into force

until May 1987. So the position with respect to

section 7 of the AUSTRALIAN CITIZENSHIP ACT is that

it was still there at the time of the deportation order that we are concerned with in 1985, though subsequently it has been repealed.

ClT7/l/HS	9	8/6/88
Nolan

WILSON J:  Have you got the number of the Act in 1984

that repealed it?

MR CASTAN:  We will obtain that, Your Honour. I do not have

it immediately before me. The pertinent matter for

present purposes is that - I am assisted by my learned

friend. It is Act No 129 of 1984.

WILSON J:	Thank you.
MR CASTAN:	The date of assent may not necessarily appear on

the print of that item.

WILSON J:  Assent does not matter if it did not come into

operation until 1987.

MR CASTAN:	To summarize the position relevant for present purposes, so far as this legislation is concerned,
the plaintiff entered Australia in 1967, was born
in the United Kingdom, in England, in 1957,
entered Australia at the age of 10.

(Continued on page 11)

ClT7/2/HS	10	8/6/88
Nolan

MR CASTAN (continuing):  In 1972, five years had passed,

he was then not quite 15, so that the five years
had expired that are referred to in some of these

provisions that I took Your Honours to in the

legislation applicable at the time of his entry,

in 1967. By 1972 the five years that I have

adverted to, applicable in old sections 13 and 14

of the legislation, had passed. In 1985, when the

deportation order was signed, he had been in
Australia for some 18 years, almost, but he had

spent periods in prison, so that he had not yet spent a period of 10 years in Australia, not in custody, though he had been in Australia 18 years.

And thus, on the face of the operation of

sections 12 and 14A of the Act, at it stood in
1985, he was on the face of the Act liable to the

making of a deportation order, he then not having

been in Australia for more than 10 years as counted

when one applies section 14A which says, "Don't

count time spent in custody.", and perhaps I should

add, he at no stage has taken out Australian

citizenship. So that in 1985, when the deportation

order was made, he was a non-citizen in the defined

sense.

When he entered Australia in 1967 he was not

capable of being made subject to the operation of section 12 of the Act as it then stood. That was the section, Your Honours will recall, which provided

for the deportation of aliens. And that is because,

as a matter of statutory application, leaving aside

any constitutional issues, when he entered Australia

he was not an alien as applicable under the provisions
of the MIGRATION ACT,applicable to his immigration

in the sense of his entry into Australia.

The only provision that might have applied,

or been relevant, in respect of any possible

deportation that might have been contemplated at

the time when he entered Australia in 1967 was

section. 13, dealing with people who commit offences

of a certain kind within five years, being

incarcerated in a mental institution within five

years and so on. And that was still the law

applicable to him in 1972, the five years having
expired and he having not then been put in a mental

institution or done any of the things that might

have otherwise rendered him liable to deportation.

So that is an outline, if I might say so,

Your Honours, of the factual and legislative context

in which it is necessary to examine, in particular,
the application of section 12 of the current Act,
the Act und~~ which the deportation order purports

to have been made.

ClT8/l/ND	11	8/6/88
Nolan

MR CASTAN (continuing): It is our first submission that

section 12 is not a valid law of the Commonwealth

within the aliens power provided in section Sl(xix)

in so far as the category of non-citizens includes

non-aliens. Putting it another way there is a

constitutional power in section Sl(xix) to make

1 aw s w i th re s p e c t to a 1 i ens . At 1 ea s t up u n t i 1

1984 the Parliament appears to have sought to,

so to speak, expressly or overtly call in aid that

power by expressly providing provisions which refer

to aliens and deal with their deportation. We are, of course, all the time here dealing with

permanent residents - people who have come here

to stay, and up to 1984, at least, the Parliament expressly purported to rely upon the aliens power

by expressly referring to aliens, admittedly with

a statutory definition but one that, for present

purposes, we do not quibble with or need to address.

It is sufficient for us to point O11t that

there was that clear distinction made~ an attempt

made, which we say was effective for all purposes -

it is not sought to attack it, to rely upon the

aliens power by saying that aliens may be deported.

And "aliens", we respectfully submit, has a meaning

under the CONSTITUTION which has not been called

in aid in the the current legislation. In other

words by defining as the group of persons those

who may be deported under ser.tion 12(a), those

who are non-citizens, there presumably is,· an 2ttempt

to seek to obtain validity or seek to use as a

source of power for the operation of section 12,

among others, the aliens power.

In our respectful submission, a definition

of the persons to whom it applies, which includes

persons who are clearly not aliens in the onstitutional

sense, must be too wide and the present case

illustrates precisely the kind of case in respect

of which it is too wide. Putting it another way:

the present plaintiff was not an alien in the
constitutional sense.	He was a subject of the
Queen.	As a subject of the Queen he could not
be made -

WILSON J:  He still is, is he not?

MR CASTAN:  He still is. He is and always has been a subject

of Her Majesty. As such, in our respectful submission,

he could not be made the subject of a law under

section Sl(xix) which deals with aliens. The present

law is drawn in a way that would, on the face of

it, and the deportation order presumably is issued
on the basis that he is capable of being treated

as an alien or that the law may be supported upon

that ground.

ClT9/l/AC	12	8/6/88
Nolan

BRENNAN J: 

Do we need to bother about the statutory background

through which you have been taking us or is the
question simply whether or not he answers the

constitutional description of "alien"?

MR CASTAN: 

For the purpose of this argument it is solely

the question of whether he answers the constitutional

description of an alien. It is our respectful

submission that the CONSTITUTION itself, in effect,

tells us who are aliens and who are not.

Your Honours will be familiar with section 117

of the CONSTITUTION. Section 117 provides that:

A subject of the Queen, resident in any

State, shall not be subject in any other

State to any disability or discrimination

which would not be equally applicable to

him if he were a subject of the Queen resident

in such other State.

That is the widest category, it would seem, of

people dealt with by the CONSTITUTION. The other

categories in the CONSTITUTION are, of course,

the people of Australia, the people of a State,

and I will come to those, but one finds the terminology
of "a subject of the Queen" also in section 34(ii)

of the CONSTITUTION. That is the section that

in section 34:

provided for the qualifications of members of see
the House of Representatives and ultimately of
the Senate, also, until the Parliament otherwise

provided, and we know the Parliament has provided.

Until the Parliament otherwise provides,

the qualifications of a member of the House

of Representatives shall be as follows:-

and leaving aside requirement (i) -

(ii) He must be a subject of the Queen,

either natural-born or for at least five

years naturalized under a law of the United

Kingdom, or of a Colony which has become

or becomes a State, or of the Commonwealth,

or of a State.

And, we would put rhetorically, clearly enough

the present plaintiff is· a person who meets that

qualification.	He is a natural born subject
of the Queen.	Of course the Parliament has since

otherwise provided so there are different tests

now but, in so far as if one were required to

app]y that test he would clearly meet it.

ClTlO/1/SDL	13	8/ 6 I 88
Nolan

Section 44(i) does not use that terminology but refers to the counterpart in providing for

disqualifications. It provides:

Any person who -

(i) Is under any acknowledgement of allegiance,

obedience, or adherence to a foreign power,

or is a subject or a citizen or entitled

to the rights or privileges of a subject

or a citizen of a foreign power .....

shall be incapable of being chosen or of

sitting as a senator or a member of the

House of Representatives.

Again one could rhetorically ask: could it

be said of the present plaintiff, and perhaps

many like him, that they are disqualified under

the disqualification provided in section 44(i),
being subjects of the Queen, citizens of the

United Kingdom, not yet having taken out Australian

citizenship? We would respectfully submit they

could not be disqualified under that disqualification.

One might perhaps then ask, when looking

at section 117, to what does the word "the Queen"

refer?

(Continued on page 15)

ClTl0/2/SDL	14	8/6/88
Nolan

MR CASTAN (continuing):  One is then driven to the words of

the CONSTITUTION ACT, the covering clauses,

as they are sometimes referred to. We would

seek to draw Your Honours' attention to the

preamble which recites that:

WHEREAS the people of New South Wales,

Victoria, South Australia, Queensland,

and Tasmania, humbly relying on the

blessing of Almighty God, have agreed to unite in one indissoluable Federal

Commonwealth under the Crown of the

United Kingdom of Great Britain and

Ireland, and under the

hereby established.

So that it is under that Crown that the Commonwealth

was established and that the people had agreed to

unite. Then in covering clause 2 - section 2 of

63 and 64 Victoria, Chapter 12, there is the

express provision:

The provisions of this.Act: referring to the

Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the

United Kingdom.

So that the sovereignty of the United Kingdom is

expressly applicable and if there were any doubt

or hesitation about the meaning of the words

"subject of the Queen' :as applicable in section 117,

it is clarified by covering clause 2.

It is, of course, notable that the CONSTITUTION

does not refer to the concept of citizenship, or

citizens of Australia. It does particularly

advert to the people of the Commonwealth and that

phrase seems to be the next gradation of termimlogy

used. If one moves from a generality of terminology

being subjects of the Queen, one comes then to the

people of the Commonwealth and then people of the

State.

Could I direct Your Honours' attention to

section 24, which provides:

The House of Representatives shall be

composed of members directly chosen by

the people of the Commonwealth -

and it goes on:

The number of members chosen in the

several States shall be in proportion to

the respective numbers of their people .....

be determined ..... in the following manner:-

. (i) A quota shall be ascertained by dividing

the number of the people of the Commonwealth

..... by twice the number of the senators:

ClTll/1/JM	15	8/6/88
Nolan

(ii) The number of members to be chosen in

each State shall be determined by dividing

the number of the people of the State - and section 25 provides:

For the purposes of the last section, if

by the law of any State all persons of any

race are disqualified from voting at elections

for the more numerous House of the Parliament
of the State, then, in reckoning the number
of the people of the State or of the

Commonwealth, persons of that race resident

in that State shall not be counted.

,Your Honours will recollect that until 196 7

the provisions of section 127, since repealed,
provided that:

In reckoning the numbers of the people of the Commonwealth, or of a State or other

part of the Commonwealth Aboriginal natives

shall not be counted.

Your Honours, there is some useful discussion

in Quick and Garran's Annotated Constitution to

the context and background of the enactment of

these provisions and. I would seek to take

Your Honours briefly to some of the passages.

In Quick and Garran from pages 953 to 961 there

is discussion of the concept of "a subject of the

Queen" as dealt with in section 117.

(Continued on page 17)

CITI2/2/JM	16	8/6/88
Nolan

MR CASTAN (continuing): In particular, I would refer

Your Honours to the brief history that is

summarized at page 954, the way in which this came about. About 12 lines down from the top

of page 954 in Quick and Garran, talking of the

Melbourne Convention, the work states:

At a later stage Dr Quick moved to insert

in the "powers of Parliament" clause a

new sub-clause - "Commonwealth citizenship".

The importance of the question was recognized;

but there were three different opinions

expressed: - (1) That the Parliament should

have power to deal with the question;

(2) that citizenship ought to be defined in

the CONSTITUTION itself; (3) that the rights

of citizenship were already secured in the

CONSTITUTION, and that citizenship itself

had never been defined in Great Britain, and

was better not defined. The sub-clause was

negatived by 21 votes to 15.

And then, three lines further down, Dr Quick tried

again:

Dr Quick moved as an amendment to insert a definition of Commonwealth citizenship.

And it quotes:

"All persons resident within the Commonwealth,

being natural-born or naturalized subjects of

the Queen, and not under any disability

imposed by the Parliament, shall be citizens

of the Commonwealth". This was thought too
wide, and opinions were expressed that the
better plan would be to empower the Parliament

to deal with the question.

And then the drafts of the clause which ultimately

found its way to become section 117 are set out and

I will not go through all of that. Then there is some

discussion under the heading, paragraph 463 "A

Subject of the Queen" and, at the top of page 955, the work states:

Section 117 of the present CONSTITUTION

represents the modest outcome of an attempt

on the part of the Convention of 1898 to

improve the work of 1891, and to establish a

status capable of being designated "Federal

citizenship". It was suggested that in a

federal Commonwealth, such as was being called

into existence, there should be a full-bloomed

national citizenship above and beyond and

immeasurably superior to State citizenship.

ClT12/l/SH	17	8/6/88
Nolan

A person might be a domiciled resident of
a State and an elector for a State, but at
the same time he would occupy a broader and

more dignified relationship in his membership

of the great federated community, of which the

States were separate parts and entities; and

that relationship ought to be expressly

defined. These contentions, apparently

logical, were not sustained. Membership of

the Federal Commonwealth may, as a legal

relation, be deduced from the CONSTITUTION,

but it is not expressed there in the concrete

form which the advocates of the foregoing

views proposed.

And then there is a lengthy and interesting discussion

of the concept of civitas and the ancient Greeks and

Romans and could I take Your Honours briefly to

page 957, in the fourth paragraph:

Whatever be the reason, rightly or

wrongly, the term "citizen" has been rejected

and does not appear in the CONSTITUTION.	In
several notable passages in the instrument,

the phrase, "the people of the Commonwealth",

is used to denote the personal units composing

the national elements of the Commonwealth.

The members of the House of Representatives - and there is a reference to section 24, 25 and

section 127.

(Continued on page 19)

ClT12/2/SH	18	8/6/88
Nolan

MR CASTAN (continuing):

This is the nearest approach in the
CONSTITUTION to a designation equivalent

to citizenship, and intended to indicate

membership of the Federal community. When

it is sought to express a narrower political

relationship than that of the Commonwealth,

the phrase "the people of the States" is

used -

and there are references t.o section 7 and section 24 - Where it is sought to express a political

relationship more comprehensive than either

that of the State or that of the Commonwealth,

the term used is one denoting British

nationality - "a subject of the Queen".

Thus the different gradations of political status recognized by the CONSTITUTION are:-

Subjects of the Queen:

People of the Commonwealth:

People of the State.

In their political relations, as subjects

of the Queen, the people are considered as

inhabitants and individual units of the Empire

over which Her Majesty presides. That is the

widest political relationship known to British

law. "I am a British subject," is equal in

practical and Imperial significance to the proud

boast of the Roman "civis Romanus sum." Subjects

of the Queen, or British subjects, have rights,

privileges, and immunities secured to them by Imperial law, which they may assert and enjoy

without hindrance in any part of the Queen's

dominions, and in British ships on the high

seas ..... The naval and military strength will

enforce them -

and so on. Then the last paragraph:

The people of the Commonwealth constitute only

one group of the subjects of the Queen. The

people of the Commonwealth are those people

who are permanently domiciled within the

territorial limits of the Commonwealth.

Territorially such people may be called

Australians, but constitutionally they are

described as British subjects or subjects of the Queen. They do not lose their character

as people of the Commonwealth by migrating

from one State tc another, any mor~ than they

lose their national character by migrating

from one part of the Empire to another, or

sojourning in foreign countries.

ClT13/l/HS	19	8/6/88
Nolan

Then it goes on to consider what are the incidences and privileges that section 117 might

deal with. Can I then take Your Honours to

page 599 of the same work which briefly discusses

section 5l(xix) "Naturalization and aliens". Under

paragraph 193 on page 599 of Quick & Garran we see

a commentary:

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. The rule of the cormnon 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. This is known as the jus soli or

the territorial test of nationality, which is

contrasted with the just snaguinis or the

parentage test of nationality.

Then it goes on with exceptions and refers to CALVIN's

case at the foot of the paragraph. Then there is a lengthy discussion of the kind of allegiance that is

owed.

(Continued on page 21)

ClT13/2/HS	20	8/6/88
Nolan

MR CASTAN (continuing): And at page 601 there is discussion

of "Naturalization":

Naturalization is the process, defined

by law, by which an alien renounces his

original allegiance and is converted into a

subject or citizen, entitled to all the rights

and privileges of natural-born subjects and

citizens in the country in which he domiciled.

There is then a discussion of the development of

the notion of naturalization in the United Kingdom,

the various Acts passed by the British Parliament,

and stating the position as it was seen in Canada

at the time of the writing of this work, the first

quotation commences:

"No question of naturalization arises 1n

connection with the emigration of British

subjects to British colonies. Settling therein

makes no more change in this respect than a

removal from York, Glasgow, Swansea, or Dublin,

to London, and a new arrival has all the
privileges of a fellow-subject. This is very
important when compared with the position of
a person who contemplates emigration from the

United Kingdom to the United States ... "

And it goes on and deals with the United States and

the necessity to renounce allegiance to Her Majesty.

And there is further discussion. There is similar

commentary at page 491 of Quck and Garran in dealing

with the disqualification provisions that I adverted
to, section 44 of the CONSTITUTION, and it is not

necessary to read that, similar comments appear, indicating the nature of the relationship of the subject to the Crown.

DAWSON J:  Or is it directed to showing that a citizenship

is an irrelevant concept so far as the CONSTITUTION

is concerned?

MR CASTAN: Yes, Your Honour, it is directed to that. It is

also directed to showing that for constitutional

purposes a person who is a subject of Her Majesty

cannot be an alien. But the word "aliens" cannot

encompass those who are a subject of the Queen.

There is some distraction about that notion caused

by references to a British subject in the previous

legislation but that, in our respectful submission,

is, in truth, in dealing with a constitutional concept,

something of a misnomer. The question is not whether

a person is a British subject but whether they are

a subject of the Queen in the sense in which that

terminology is used, say, in section 117 or the

other provisions we have referred_to, and in turn if

ClT14/l/ND	21	8/6/88
Nolan

a person is then they are not an alien and a law
cannot be made with respect to them which is founded

on the power with respect to aliens.

Some of this was discussed, though not fully

explored, in the case of P0CHI V MacPHEE,

(1982) 151 CLR 101. Mr Pochi was of Italian

citizenship and had not taken up Australian

citizenship.	He was, therefore, an alien in the
constitutional sense.	Some argument,

described in the judgments as somewhat technical,

was addressed to the operation of that definition
of subjects of the Queen in the CITIZENSHIP ACT and

we need not concern ourselves with that but more

general matters were also discussed, to a limited

extent, in the judgment of His Honour

Sir Harry Gibbs, commencing at page 107. Towards

the foot of the page, the last paragraph on

pagw 107, His Honour says:

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. The

rule of the common law was stated by Blackstone

in his Commentaries, as follows: -

and it sets out that that fundamental concept.

"Natural-born subjects are such as are born

within the dominions of the crown of England;

that is, within the ligeance, or as it is

generally called, the allegiance of the king;

and aliens, such as are born out of it."

(Continued on page 23)

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Nolan

MR CASTAN (continuing):  He then refers to the Quick and

Garran extracts that I have just taken

Your Honours to.

It is unnecessary to trace the history of the statutory amendments of the common law

before 1948, when laws giving effect to a

new concept of the status of a British subject

were enacted in the United Kingdom, Australia

and other Commonwealth countries. The

Australian statute was the NATIONALITY AND

CITIZENSHIP ACT 1948 (Cth), which took effect on 26 January 1949, and in its amended form

has been renamed the AUSTRALIAN CITIZENSHIP ACT.

The English statute was the BRITISH

NATIONALITY ACT 1948 (U.K.). The principles

to which this legislation gave effect were

that the peoples of each of the countries

of the Commonwealth should have separate

citizenship, but that all citizens of

Commonwealth countries should have the common

status of British subjects. Section 7 of

the AUSTRALIAN CITIZENSHIP ACT gave effect

to this common status, which was, of course,

derivative, being dependent on the possession
of citizenship.

He then goes on to deal with what is described as the somewhat technical argument - I will not

trouble Your Honours with that but on page 109,

in the first full paragraph about a third of the

way down the page, His Honour then says:

This argument proceeds on the assumption

that any person who is a British subject under
the law of the United Kingdom cannot be an

alien withs. Sl(xix). That assumption is

incorrect. The scope of the legislative power

conferred on the Parliament bys. Sl(xix)

is not determined by the BRITISH NATIONALITY ACTS

of the United Kingdom -

and we would not seek to differ from His Honour's

statement in that respect -

In recent times the status of a British subject

has lost much of is former significance to

Australian citizens. It has ceased to carry

with it practical advantages, such as the

unrestricted right to enter the United Kingdom

or other Commonwealth countries, or the right

to a British passport. The allegiance which

Australiqns owe to Her Majesty is owed not as British subject but as subjects of the

Queen of Australia.

ClTlS/1/AC	23	8/6/88
Nolan

We would express some reservation about the use

of the phrase "the Queen of Australia" in that

context. It is a phrase which has come into common

parlance but which, we would endeavour to argue,

has no separate significance once carefully analysed.

Now, once the BRITISH NATIONALITY ACT 1981 (U.K.)

has come into force, the principle that every

Commonwealth citizen is a British subject will have finally been abandoned, and the

status of British subject will be restricted

to a narrow group. If English law governed

the question. who are aliens within

section Sl(xix), almost all Australian citizens,

born in Australia, would in future be aliens

within that provision. The absurdity of such

a result would be manifest.

And we certainly do not differ from that.

The meaning of "aliens" in the CONSTITUTION

cannot depend on the law of England. It must

depend on the law of Australia. It is true

thats. Sl(xix) presents some difficulties.

Clearly the Parliament cannot, simply by giving

its own definition of "alien", expand the

power under s.5l(xix) to include persons

who could not possibly answer the description

of "aliens" in the ordinary understanding

of the word.

And we would say, and further, who could not possibly

answer the description of aliens in the constitutional

meaning of the word that we have been putting forward

for Your Honours' consideration.

This question was not fully explored in the

present case, and it is unnecesary to deal

with it.

And then His Honour expresses an opinion with which

we would, with the greatest of respect, differ.

His Honour then says:

However, the Parliament can in my opinion

treat as an alien any person who was born

outside Australia, whose parents were not

Australians, and who has not been naturalized

as an Australian.

Now, we would respectfully submit that goes too

far because it encompasses persons who are subjects
cf the QvPPn in the constitutional sense and, in
our resepctful submission, the Parliament cannot

treat as an alien a person who constitutionally

is a subject of the Queen as provided by the

ClTlS/2/AC 24 8/6/88

Nolan (Continued on page 24A)

CONSTITUTION and is therefore not an alien.

Parliament cannot transform persons who were not aliens in the constitutional sense as the

CONSTITUTION has operated until 1984 - passed

legislation in 1984 abolishing the line between

subjects of the Queen and others and then rely

on the aliens power to encompass those who

remain subjects of the Queen.

(Continued on page 25)

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MR CASTAN (continuing):  They do not cease to be subjects of

the Queen, in the constitutional sense, by virtue
of an enactment passed in 1984 by which Parliament

chose to merge the various categories of persons

coming into the country.

BRENNAN J: Is it your submission that aliens and subjects

of the Queen are mutually exclusive and exhaustive

categories?

MR CASTAN:  Yes, it is, Your Honour, that is exactly how we

put it. There are, of course, other categories or

ways of describing such persons, thus immigrants,
which would encompass all of them, at least for

a period of time.

BRENNAN J:  And what is then your definition for the

constitutional purposes of "subject of the Queen",

any person who is born in a British dominion?

MR CASTAN:  In fact one defines it by reference to a given point of time. Any person who owes allegiance to

the Queen and that may change. For instance, there

may be persons who are born in a British dominion and

are subjects of the Queen, but by virtue of
departing from the Commonwealth and no longer having
the Queen as head of State, and perhaps as in the
case of Burma, ceasing totally to be associated with
the Commonwealth, the persons cease to be subjects

of the Queen for the purpose of a determination,

although they were so born and that is because there

was a change.	They no longer held any allegiance
to the Queen.	So one looks at it as at a given

point of time and birth may be the relevant criteria

but other events may have supervened so as to

terminate that allegiance.

DAWSON J:  So that until recently Fijians would not be aliens in Australia?

MR CASTAN:  No, they would not, Your Honour.

DAWSON J: They would not be people of the Commonwealth?

MR CASTAN:  They would not be people of the Commonwealth at least until they became permament residents. They

would, of course, be immigrants, at least until they

became part of the people of the Commonwealth. We

stress the immigrant matter because it should not

be assumed and I do not know if it can be said that

this is some bizarre result that somehow strips

the Parliament of the capacity to control those who
are coming here or in sorne way inhibits the

Parliament in its management of national affairs and

so on. Of course, the immigration power extends

right. across all persons, including subjects of the

ClT16/l/SR	25	8/6/88
Nolan

Queen and has considerable width and we will turn

to that also in the context of the present problem.

There are, of course, as much authority dealing

with the Queen-this concept or much discussion and

certainly much general discussion of the concept

of the Queen as Queen of Australia as distinct

from some other Queen. But in our respectful

submission, the Queen is one and indivisible. There

are not two Queens. For political purposes, of
course, there is the Crown in right of Australia or
other Territories and for those political purposes

there are the well-established doctrines that ensure

that the Crown acts on the advice of Australian

ministers and that is the Crown in right of Australia

for a whole variety of purposes and we do not seek

to canvass that.

(Continued on page 27)

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MR CASTAN (continuing):  But for purposes of the question

of allegiance and a person being a subject of the	Crown and for the purpose of the concept of an
alien, the Crown is, of course, one and indivisible
briefly to passages which emphasize that notion. throughout Her Majesty's dominions and we refer
One passage in fairly forthright terms is to be
found in AMALGAMATED SOCIETY OF ENGINEERS V ADELAIDE
STEAMSHIP COMPANY, (1920) 28 CLR 129 at page 152, in
Rich and Starke. Their Honours said this at page 152, the judgment of Chief Justice Knox and Justices Isaacs,
the first full paragraph:

The CONSTITUTION was established by the

IMPERIAL ACT 63 & 64 Viet. c. 12. The Act

recited the agreement of the people of the

various colonies, as they then were, "to

unite in one indissoluble Federal Commonwealth

under the Crown of the United Kingdom of Great

Britain and Ireland, and under the CONSTITUTION

hereby established". "The Crown", as that

recital recognizes, is one and indivisible

throughout the Empire. Elementary as that

statement appears, it is essential to recall

it, because its truth and its force have been overlooked, not merely during the argument of

this case, but also on previous occasions.

Distinctions have been relied on between the

"Imperial King", the "Commonwealth King" and the "State King". It has been said that the

Commonwealth King has no power to bind the

first and the last, and, reciprocally, the

last cannot bind either of the others. The

first step in the examination of the CONSTITUTION

is to emphasize the primary legal axiom that

the Crown is ubiquitous and indivisible in the

King's dominions. Though the Crown is one and

indivisible throughout the Empire, its

legislative, executive and judicial power is

exercisable by different agents in different	localities, or in respect of different purposes
in the same locality, in accordance with the
common law, or the statute law there binding the Crown ...... The Act 63 & 64 Viet. c. 12,
establishing the Federal CONSTITUTION of Australia, being passed by the Imperial Parliament for the express purpose of
regulating the royal exercise of legislative,
executive and judicial power thoughout Australia, is by its own inherent force binding on the
Crown to the extent of its operation.

And it-goes on to deal with questions about Crown
right of a State and whether the States were bound.

In the same context, may I refer Your Honours to a

brief passage in the IRISH ENVOYS case, (1923)

32 CLR 518 at pages 576-7.

ClT17/l/SH	27	8/6/88
Nolan

In the fifth-last line at the bottom of page 576,

one sees the passage:

The cases of ATTORNEY-GENERAL FOR THE COMMONWEALTH V AH SHEUNG and POTTER V

MINAHAN show, of course, that British

but MINAHAN's case recognizes that all	subjects may be prohibited immigrants;
the King's subfects, being bound by the one tie of allegiance to the one sovereign, are free to move at will throughout the
Empire unless some law forbid them.

(Continued on page 29)

ClT17/2/SH	28	8/ 6/ 88
Nolan
MR CASTAN (continuing):

The subject has this right by virtue of

his natural liberty - and libertas

naturalis est facultas ejus quod cuique

facere libet nisi quod jure prohibetur

(Bracton). The position is different

with regard to aliens, who have no enforceable

right to enter British territory (MUSGRAVE V

CHUN TEEONG TOY); and I have no doubt that

under pl. xix of sec. 51 of our CONSTITUTION

the Parliament could pass a law for the
expulsion and deportation of aliens. But

these plaintiffs are subjects of the King.

DAWSON J:  So that you cannot expel a New Zealander once he has

ceased to be an innnigrant.

MR CASTAN:  Once he has ceased to be an innnigrant. When

adverting to the concept of the Queen of Australia -

the term is used from time to time rather loosely -

which make clearer the precise status of Her Majesty.

can I take Your Honours to the relevant ROYAL STYLE AND

The ROYAL STYLE AND TITLES ACT 1953 was Act No 32

of 1953, and the recitals in that Act are helpful.

It provides:

WHEREAS it was recited in the preamble

to the STATUTE OF WESTMINSTER, 1931

that it would be in accord with the

established constitutional position of all

the members of the British Connnonwealth of
Nations in relation to one another that

any alteration in the law touching the Royal Style and Titles should, after the

enactment of that Act, "require the assent

as well of the Parliaments of all the

Dominions, as of the Parliament of the

United Kingdom": 

appertaining to the Crown at the time of
the enactment of the STATUTE OF WESTMINISTER

1931 had been declared by His then

Majesty King George V. in a Proclamation

in pursuance of the ROYAL AND PARLIAMENTARY

TITLES ACT, 1927 of the United Kingdom, and

were, in consequence of the establishment of

with the assent as well of the Parliaments
of Canada, Australia, New Zealand and the the Republic of India, subsequently altered of the United Kingdom:

AND WHEREAS it was agreed between the Prime

Ministers and other representatives of

Her Majesty's Governments in the United

AND WHEREAS the Style and Titles

ClT18/l/HS	29	8/6/88
Nolan

Kingdom, Canada, Australia, New Zealand,

the Union of South Africa, Pakistan and

Ceylon assembled in London in the month of

December, One thousand nine hundred and

fifty-two, that the Style and Titles at

present appertaining to the Crown are not

in accord with current constitutional

relationships within the British Commonwealth

and that there is a need for a new form which

would, in particular, "reflect the special

position of the Soverei~n as Head of the

Commonwealth":

AND WHEREAS it was concluded by the Prime

Ministers and other representatives that,

in the present stage of development of the

British Commonwealth relationship, it would

be in accord with the established constitutional position that each member country should use for

its own purposes a form of the Royal Style and

Titles which suits its own particular circumstances but retains a a substantial

element which is common to all:

AND WHEREAS it was further agreed by the Prime

Ministers and other representatives that the various forms of the Royal Style and Titles should, in addition to the appropriate

territorial designation, have as their common

element the description of the Sovereign as

"Queen of Her other Realms and Territories

and Head of the Commonwealth":

AND WHEREAS it was further agreed by the Prime

Ministers and other representatives that the

procedure of prior consultation between all

Governments of the British Commonwealth should

be followed in future if occasion arose to

propose a change in the form of the Royal Style

and Titles used in any country of the British

Commonwealth: 

BE it therefore enacted -

and in section 4 it is provided:

The assent of the Parliament is hereby given to

the adoption by Her Majesty, for use in relation
to the Commonwealth of Australia and its

Territories, in lieu of the Style and Titles

at present appertaining to the Crown, of the

Style and Titles set forth in the Schedule to

this Act, and to the issue for that purpose

by Her Majesty of Her Royal Pro·clamation

under such seal as Her Majesty by Warrant

appoints -

ClT18/2/HS	30	8/6/88
Nolan

and it is to have effect from the date published,

and section 5:

The assent of the Parliament is hereby

given to the adoption by Her Majesty,

for use in relation to Her other Realms

and Territories, in lieu of the Style
and Titles at present appertaining to

the principles that were formulated by the

the Crown, of such Style and Titles as

Prime Ministers and other representatives - and then the schedule sets out:

The Royal Style and Titles.

Elizabeth the Second, by the Grace of God

of the United Kingdom, Australia and Her other Realms and Territories Queen, Head
of the Commonwealth, Defender of the Faith.

The 1973 Act implemented the only subsequent change.

That is the ROYAL STYLES AND TITLES ACT 1973,

which recites the 1953 Act, recites that:

the Government of Australia considers

it desirable to propose a change -

(Continued on page 32)

C1Tl8/3/HS	31	8/6/88
Nolan

MR CASTEN (continuing):  And then goes on:

The assent of the Parliament is hereby given

to the adoption by Her Majesty, for use in

relation to Australia and its Territories,

in lieu of the -

1953 version -

of the Style and Titles set forth in the

Schedule -

and the issue of a proclamation. And then there

appears in the schedule:

Elizabeth the Second, by the Grace of God

Queen of Australia and Her other Realms and
Territories, Head of the Commonwealth.

We draw attention also in passing to the fact that both of those Acts of the Parliament were

Acts which were reserved for Her Majesty's pleasure,	apparently pursuant to section 58 of the CONSTITUTION,
a section that is thought by some to have become,
in effect,no longer an applicable provision in our
CONSTITUTION. That appears from the heading of the
1953 Act which indicates

Queen's Assent, 3rd April, 1953. Queen's Assent	Reserved for Her Majesty's pleasure, 18th March, 1953.
proclaimed, 7th May, 1953.

And the footnote to the 1973 Act indicates that

the Act was reserved for Her Majesty's pleasure

on 14 September 1973 and the Queen's assent was

given on 19 October. So that the provisions that

are thought, at least by some, to have fallen by

the wayside still had life in them at least in 1973.

In our respectful submission there is no

particular new meaning in the constitutional
sense to the phrase "the Queen of Australia".	It

is an abbreviation of the proper Royal Style and

Titles now enacted pursuant to the Act of 1973,

conveniently used. The reality, of course, is

that Her Majesty remains Queen of Australia and

her other realms and territories. Whether one

says that first, or says, "Queen of the United

Kingdom and of Australia" firstJ or says, "Queen

of Canada and Queen of the United Kingdom and

Queen of Australia" does not alter anything.

monarch hA.8 remained in relation to Australia	Her Majesty remains exactly the way that the
a subject wherever they move to if the territory since 1901, and a subject of Her Miajestyremains
they move to is a territory in respect of which
Her Majesty is the monarch.

ClT19/l/JM	32	8/6/88
Nolan

The distinction that I have been adverting to - perhaps I will put it another way. What we

find, Your Honours, in the AUSTRALIAN CITIZENSHIP ACT,
at least up until 1987, I think it was, that the

Act was finally - removed the status of British

subject, and what we found in the migration

legislation up until 1984 was an acknowledgement

of that distinction; the distinction that exists

between aliens and subjects of the Queen. The

terminology used in the legislation was "British subject'', but that is, in a sense, a legislative

term and in a sense a misname~ and confuses the

issue. To some extent we would respectfully

submit the argument in POCHI's case was distracted

into an argument about what the British laws say;

what the laws say in the UK about nationality.

That, in our respectful submission, is not the

issue. It does not arise. There is nothing implicit

in our argument that we are dependent upon what the

laws of the UK say about nationality. The question

is rather one of the constitutional terms that are

used. The substance of that was recognized by the

distinction in the innnigration laws between the

way in which aliens were treated and the way in

which non-aliens, subjects of the Queen, were	treated. The abolition of that difference, in our
respectful submission, goes beyond constitutional
power, so far as section Sl(xix) is concerned.

We would finally say on this matter that

the plaintiff, as a natural born subject of

Her Majesty, born in the UK in 1957, having moved directly to Australia in 1967, was not

an alien at birth and was not an alien, in the

constitutional sense to which we have been referring,

at any time before he came to Australia, and did not

become so when he came to Australia, not constitutionally

and not in any statutory sense either, because under

the statute, of course, he was not an alien, as it

stood at the time when he came.	He could only become
an alien in the constitutional sense in some way

by renouncing his allegiance to the Crown by

undertaking a citizenship of some foreign country

or perhaps having his citizenship removed if there

were - his allegiance removed, which may flow from

some Act of the UK Parliament, if that had occurred.

I do not know whether that is a possibility under

UK legislation. It is not suggested that it is

an event that has occurred here. So that he has

remained at all times a subject and section 12,

we would respectfully submit, cannot apply to him

as an alien.

(Continued on page 34)

C 1 T /1 9 /	2 / JM	3~	8/6/88
Nolan

DAWSON J: Presently Australian citizens are all subjects of

the Queen.

MR CASTAN: Yes, Your Honour.

DAWSON J:  I appreciate that is so but where does that

come from?

MR CASTAN:  The concept of Australian citizenship is one

that was only created by the relevant legislation,

of course, and when we come to see the way in

which one becomes an Australian citizen, there

are a number of different methods.

DAWSON J: Yes, I realize that I may be taking you ahead

but does the Act say anything about an Australian

citizen becoming a subject of the Queen?

MR CASTAN:	No, Your Honour, it does not.
DAWSON J:	You have to assume that?

MR CASTAN:  Yes, Your Honour. I do not think it does.

I have not looked for it in that context but

I do not think that terminology is used in the

legislation. It deals with people who acquire

citizenship by birth, adoption or descent, is

one category, and then it deals with those who

acquire citizenship by what is called "a grant"

DAWSON J:  Is an oath of allegiance required somewhere?

MR CASTAN: It is required in the case of those who obtain a grant of Australian citizenship under Part III

of the Act.

DAWSON J: That is probably the answer, then.

MR CASTAN: It is not required, of course, in respect of

those who require Australian citizenship by birth,

adoption or descent and it is not required,

presumably because by definition it is not required

by that special class of Australian citizens

who were granted special status - and this illustrates

the nature of the problem. We would respectfully

submit it is not necessary to go into this in

detail for the purposes of the present case but

section 25 of the AUSTRALIAN CITIZENSHIP ACT

attempts to come to grips, at least, with one

of the categories of Australians who were, for

all purposes, people of Australia and in respect

of whom it was thought anomalous that they should

either be denied Australian citizenship or have

to take au oaLh of allegiance. It is thought

no longer to have an application presumably because

its operation is exhausted but the way in which

ClT25/l/SDL	34	S/6/88
Nolan

section 25 worked is that a person who was a British
subject prior to the 1948 Act became an Australian

citizen automatically if he had been living in

Australia for five years - and certain other

categories. But, in substance, the group of
persons that it was sought to pick up were all

of the people of Australia, so to speak, who

were British subjects but who may not have been

born in Australia but comprised Australians who

had lived in Australia, in many cases, for most

of their lives.

I am assisted by my learned friend.

Schedule 3 of the CITIZENSHIP ACT provides the

form of the oath and that form reads:

I, A.B. renouncing all other allegiance,

swear by Almighty God, that I will be faithful

and bear true allegiance to Her Majesty,

Elizabeth the Second, Queen of Australia,

Her heris and successors according to law. So, it shortens the statutory style and title

to "Queen of Australia". Just for completeness

I am reminded there was amendment to the oath

in 1986 enacted by Act No 70 of 1986 which deleted

the necessity to renounce all other allegiances
in swearing allegiance, which maintained the

phrase:

Queen of Australia, Her heirs and

·successors.

It simply made that change. Before I leave the question of aliens I should just mention that

a summary - and I do not know that it necessarily takes the matter any further but a brief summary

of what is described as "the current position"

concerning this question of citizenship appears

in the first report of the Constitutional Commission
of April 1988, from pages 257 to 258.	I do not
seek to go to that, Your Honours.

(Continued on page 36)

ClT20/2/SDL	35	MR·CASTAN, QC	8/6/88
Nolan

BRENNAN J:  How does the notion of allegiance to the single

sovereign co-exist with constitutional independence
of the respective parts of the Commonwealth and their

several interests, one sometimes against another?

:MR CASTAN:  There is no difficulty with them co-existing,

in our respectful submission, Your Honour. For

political purposes, for purposes that involve

that whole process of a legislative, executive

and judicial functioning of the Commonwealth as

an independent nation, there is, of course, the

concept of the Crown in right of Australia and

what that involves is Her Majesty, acting

through the Governor-General, acting on the advice

of Australian ministers. And the position of

the Governor-General makes clear how that operates.

But Australians are not subjects of the Governor-General.

They do not have a status which involves them

in an allegiance to the Governor-General. The

status of individual Australians is a status that

remains the status of subjects of the Queen. The

only - - -

BRENNAN J:  I understand that proposition, I am just

and the citizens of both have to give

finding it difficult to give content to the notion another,

of allegiance if there should be two parts of the

allegiance to the single sovereign. Do they give

allegiance to the single sovereign which, for this

purpose, is bifurcated according to the interests

that are being served by each country?

MR CASTAN:	In our respectful submission, they simply cannot and if the interests of Australia and of
citizens who are required to act in Australia's
interests clashed with the interests o~ say, the
United Kingdom to such extent that it was necessary,
one can I suppose conceive of a situation where it
was necessary to bear arms and to carry out one's
allegiance to the soveriegn ultimately by engaging
in war.  And clearly, the constitutional position
would be such that Australia could not declare war against the United Kingdom and maintain the
current CONSTITUTION. You could not have a situation in
which we have a CONSTITUTION that provides in
section 2 of the Act that it is the Crown in right
of the United Kingdom that is the Queen, but
section 61, for instance, which vests executive
pow~~ in the Queen and is the Queen in the right
of the United Kingdom acting through the Governor-General
then on Australian ministerial advice, we, could not maintain that position. The CONSTITUTION

ClT21/l/SR	36	8/6/88
Nolan

ultimately can be stretched so far but no further.

And ultimately it w£11 crack. And these structures

that we have referred to will not function at

some limit. There is some outer limit at which they

simply will not function, in our respectful

submission. Now, that does not arise out of any of

the matters we are discussing, where the issue of

allegiance merely governs, for instance in this case,
provisions would have to give way.

the operation of a power with respect to aliens. constitutional

Australia could not remain in a position having

the Queen as its constitutional head and engage,3ay,

to take the extreme example, in war with the

United Kingdom.

(Continued on page 38)

ClT21/2/SR	37	8/6/88
Nolan

MR CASTAN (continuing):  Of necessity, such a declaration of

war involves abandoning the Queen as head of State,

in our respectful submission. One could not

maintain that position if that occurred.

BRENNAN J:  Or with conflict with any other part of

Her Majesty's dominions?

MR CASTAN: 

I think the same applies, Your Honour, in respect,

at least, of those dominions for whom Her Majesty
is head of State and in respect of whom subjects

owe allegiance. There is of course a somewhat complex

position in relation to Commonwealth nations which are republics and in respect of whom the Queen has

the status of head of the Commonwealth and in respect
of those there may be a real question whether their

subjects truly are subjects of the Queen in the sense

in which we have been discussing it. It may well

be that there is quite a large number of countries
within the Commonwealth in respect of which this

problem would not arise in the same way because they

have adopted a different status and their subjects

are not subjects of the Queen in the relevant sense.

It has been discussed and maybe, in truth, when

one analyses it, not all that many countries but,

in our respectful submission, that is the constitutional

position, at least in respect of those countries

where the Queen remains head of State and where subjects

by the nature of their relationship are subjects
of the Queen. That, in itself, may then be a question
that arises in respect of each country because there
may be issues as to the form of citizenship laws

and the form of allegiance that is required of

citizens. One would have to analyse that in respect

of each State.

I think the answer, in practice, Your Honour,

is that for the most part it does not, in any way,

impede that sense of independence as a constitutional

entity, as a separate nation, that Your Honour is

referring to but one cannot escape those provisions

that are there and that reflect part of the most

fundamental framework of this CONSTITUTION as it

currently is. If the time is reached where it is

necessary to change it the mechanism for change

remains available.

Perhaps I should say, just before I leave that,

that one of the difficulties, of course, in cases
generally involving the CONSTITUTION and cases like

this in particular is that there is inherent -at least in some levels of the debate about it, and

· in iome j~agments in cases in the past, the assumption

that the CONSTITUTION cannot be changed or that it

is somehow fixed and that the question of

interpretation and adaption by interpretation in

ClT22/l/ND	38	8/6/88
Nolan

section 128 tends to be overlooked as part of the

framework in which one is to examine and discuss

or analyse the concepts that the Court comes to
deal with. It is rare, indeed, for the Court to

find judgments where any of Their Honours have

actually taken into account the fact that

section 128 is there and provides the answer. It

is common enough in the matter of statutory

interpretation. One finds courts, from time to time,

saying. "We find this result odd, or unusual, and

it calls, perhaps, for statutory amendment but it

is not for us to try and make words mean what they

simply don't mean or make them say what they don't

say, it is up to Parliament." And the CONSTITUTION

ultimately has that about it too.

DAWSON J: It really comes down to the fact that, when you

say that the Crown is indivisible, it only means
the physical person of the Queen because for every
other purpose it is divisible, is it not? If you

take the case of where, for instance, the Queen in

right of Great Britain enters into a treaty which

is inimical to the interests of Australia, which

is quite conceivable, and she does so on the advice

of her British ministers but the advice of her

Australian ministers would be against it, it is

clearly divided in its functions in quite a marked

way.

(Continued on page 40)

ClT22/2/ND	39	8/6/88
Nolan

MR CASTAN:  I would respectfully agree with that but it

does not ultimately alter the relationship of

the individual subjects.

DAWSON J:  But it does mean, when you say the Crown is

indivisible, all it means is that the one person
will exercise different functions in different

capacities.

MR CASTAN:  Yes, Your Honour, but one cannot have allegiance

to - there is only one person to whom one can have

allegiance.	The concept we have is this concept
of subjects.

DAWSON J:  I am not sure that you cannot have allegiance to

that one person in a different capacity.

MR CASTAN: Well, in our respectful submission, if there is

a capacity, when one looks to the CONSTITUTION, one

finds the capacity defined. That is the difficulty

with it and it is defined as "the sovereignty of the
United Kingdom". That, perhaps, is the point at which one does find the difficulty that

Your Honour Mr Justice Brennan raised with me.

BRENNAN J: Unless one takes that phrase as being simply

descriptive of the person.

MR CASTAN:  Yes, Your Honour. Well, we would respectfully

submit that is to escape. That, perhaps, might be

so to speak, a convenient means of escape of words

which have and were intended to have a clear operative

meaning, in our respectful submission.

May I turn, then, to the questions arising under

the immigration power. The· other basis upon which

it would, no doubt, be sougnt to support the operation

of the deportation order made under section 12 of the

Act in relation to the plaintiff 'WOUJ.d be the immigration

power and it is our respectful submission that - we

have a series of alternative propositions but, putting

the first submission, we would submit that the

immigration power is limited to the process of

dealing with the entering into Australia, the

settling permanently in Australia of persons and

the process of becoming absorded into the Australian

community. There is the famous aphorism of

His Honour Mr Justice Isaacs in RE YATES EX PARTE

WALSH AND JOHNSON, "once an immigrant always an immigrant", the notion underlying that being that

if you are an immigrant, then the immigration power
cAtchAR y0v F0rAve~. If you came in 1912 as a

two-year-old and you are now 80, you have always

been in Australia and you took out citizenship as

soon as you could, whenever that was first available,

nevertheless, you are an immigrant and that, of course,

aliens alike. that aphorism would apply to British subjects and

ClT23/l/SH	40	8/6/88
Nolan

The Court has, in general, as we will see turning briefly to the authorities, taken a view

that has tended strongly against that aphorism

and it is our respectful submission that this

Court should not now reverse what we would say

is the fundamental thrust of authority adverse
to that aphorism. I am not certain if it is

put here by my learned friend but one should

turn back to that. Perhaps I will await submissions

on that.

RE YATES EX PARTE WALSH AND JOHNSON, (1925) 37 CLR 36 is the case in which that approach was,

in substance, rejected. That is the approach of

"once an immigrant, always an immigrant". Now, it

is necessary, then, to analyse, if one accepts that

fundamental concept that the power encompasses

entering Australia, settling and becoming absorbed,

what kind of laws or where the limits lie in

respect of laws dealing with entry, settlement and

absorption.

There is some weight of authority to the effect

that the laws may provide for absorption by providing

what are termed 'reasonable conditions to be met" for a

person to then be deemed to be absorbed. Thus, it is

said that the Parliament can itself

make laws dealing with the question, with the process

of absorption and can set, as it is put, the reasonable
conditions to be met and, if a person meets those, it

is our submission that if Parliament has itself defined

what will ~mount to absorption, then a person passes

beyond th~ scope of the constitutional power.

We would take Your Honours to the case,

particularly, of KOON WING LAU V CALWELL, (1949)

80 CLR 533 in which His Honour Mr Justice Williams,

in particular, summarizes the position arising from

EX PARTE WALSH and subsequent cases. It articulates

what we would respectfully submit is an applicable

test under this submission.

(Continued on page 42)

ClT23/2/SH	41	8/6/88
Nolan

MR CASTAN (continuing):  His Honour at page 588 summarizes

the position that he sees emerging from

WALSH AND JOHNSON. He says:

I regard EX PARTE WALSH AND JOHNSON; IN RE YATES, as a definite decision of this

Court that the immigration power does not

authorize Parliament to legislate with respect

to persons who originally immigrated to

Australia but have since become members of

the Australian community. Knox C.J. said:

"If the question be whether he is entitled

to remain in Australia, or, stated otherwise,

whether he may be lawfully expelled from

Australia under a law made under the authority

of this power (that is the immigration power)

and of this power only, the question for

decision is whether he is, at the time when

it is sought to expel him, a person who is

not a member of the Australian community and

who is therefore subject to the immigration	power. 11 Higgins J, said: "If this view is
right - if this is not a law with respect
to immigration at all, but a law for the
deportation of residents who have been
immigrants - sec. SAA cannot be valid by virtue
of the power conferred by sec. Sl(xxvii.)." StarkeJ. said: "Nowhere, I think, is
foreshadowed a clear principle, namely that
those who 'originally associated themselves together to form' the Commonwealth and those
who are 'afterwards admitted to membership'
cannot thereafter, upon entering, or crossing
the boundary of Australia, from abroad, be regarded as immigrating into it unless in
the meantime they have in fact abandoned their
membership. They have never been within,
or else have passed beyond, the range of the
power: it has never operated, or else has
become exhausted. Of course, conditions may
be attached to persons immigrating into
Australia, upon entry, and so long as they
remain within the range of the power. But the undoubted power of Parliament to pass
retroactive laws was pressed upon us. It may, no doubt, provide that immigration laws
shall operate from a time past, but how can
it make them operate over persons who are beyond the range of the power before the
retroactive law is made? The law is not then,
in my opinion, a law with respect to immigration,
but a law for bringing again within the field
of immigration persons who have passed, and were allowed by law to pass, beyond its
borders."

ClT24/l/AC	42	8/6/88
Nolan

That, we respectfully submit, for reasons, and

I will expand exactly why is most apposite to the

present case.

In O'KEEFE's case Latham C.J. said:

"Laws with respect to immigration may properly

control, not only the act of entry into

Australia but also the conditions upon which persons not already members of the Australian

community may be permitted to remain in

Australia." His Honour said: "Immigration

into a country, if completed, involves two

elements, (a) entry into the country, and

(b) absorption into the community of the

country. Both of these elements can be controlled

under a power to make laws with respect to

immigration."

(Continued on page 44)

ClT24/2/AC	43	8/6/88
Nolan
MR CASTAN (continuing):

In O'KEEFE's case Dixon J. said:

"After what was said about the power and

the Act by Cussen J. in AH SHEUNG V LINDBERG

and by this Court in CHIA GEE V MARTIN,

POTTER V MINAHAN and R. V MACFARLANE:

EX PARTE O'FLANAGAN AND O'KELLY, it seems

impossible to do other than treat the power
over immigration as relating to all movement
of strangers into the Commonwealth independently
of the intention of the persons who enter.

So long as the new arrivalis a stranger and not one of the people of Australia

the legislature may deal with the question

whether he enters and on what terms he

enters or remains. See particularly per

Starke J. in RV MACFARLANE: EX PARTE

O'FLANAGAN AND O'KELLY.	The Act is construed
accordingly.

Then a passage which is, again, most apposite.

The Commonwealth Parliament has, of

course, the power to impose reasonable conditions which must be complied with

before a person who enters Australia may

be allowed to become such a member. I

adhere to the statement in O'KEEFE's case.

"It is within the constititonal powers

of the Commonwealth Parliament under the

immigration power, s.51, par.(xxvii.),

to fix a reasonable period of probation

during which immigrants who have been admitted

into Australia should continue to be subject

to the risk of becoming prohibited immigrants

and not be allowed to acquire the rights

and privileges and immunity from deportation

of members of the Australian community.

RV MACFARLANE; EX PARTE O'FLANAGAN AND

O'KELLY." But, in my opinion a law with

respect to immigrants cannot apply to persons

who are no longer immigrants, and persons

are no longer immigrants who have entered

and completed their settlement in accordance
with the immigration laws in force prior

to this completion.

Those words in the last sentence are, in our

respectful submission, critically apposite to

the present case.

I agree that the CommonweaLt~ Parliament

may under the power prevent persons entering

Australia at all either for a temporary

purpose or with a view to making their

permanent homes here. The law may authorize

ClT25/l/SDL	44	8/6/88
Nolan

a person to enter the country for
a temporary purpose at the end of which he

must depart. But a law which allows a

person to enter and stay in Australia

indefinitely but prevents him from ever

becoming a member of the Australian community

is not a law with respect to immigration, because the essence of immigration is the

entry by a person into a country in order

to make that country his permanent home.

A law with respect to immigration is therefore

a law which regulates the right to immigrate,

so that on compliance with its conditions

the immigrant becomes a member of a new

community and no longer an immigrant.

DAWSON J:  Nowadays you would only complete your settlement,

so to speak, by becoming an Australian citizen,

would you not?

MR CASTAN:  Yes, at least for the purposes of this argument

we would concede that that is so under the operation

of the present form of section 12.

GAUDRON J:  Does that answer depend upon the time at which

the person may have come to the country?

(Continued on page 46)

ClT25/2/SDL 45 8/6/88

Nolan

MR CAST AN : Ye s , i t _ rn a y . Th e q u e s t i on o f t h e

operation of section 12 and the point of time in respect of which it operates is a separate issue that has got to be addressed, of course, independently

of that general proposition and we will be

addressing that. But in the present case, we draw

particularly on that reference towards the foot

of page 589, about the fifth, sixth and seventh

last lines, where His Honour Mr Justice Williams

refers to:

a law with respect to immigrants cannot

apply to persons who are no longer

immigrations, and persons are no longer

immigrants who have entered and completed

their settlement in accordance with the

immigration laws in force prior to this

completion.

Now that is most apposite in the present case because

we have a situation here, where the plaintiff
entered in 1967 and under the laws applicable to that entry, he, of course, was given a permit or was the beneficiary of his parent's permit to enter

and remain. So that he was given permission to

remain. It was, under this analysis, subject to

conditions, in the sense that when one looks

at the MIGRATION ACT applicable to that particular

migration into Australia, one sees that though he was
not an alien, subject to the potentiality for

deportation inherent in old section 12 because he

was a British subject as defined for the purpose

of that statute, he was an immigrant and therefore

subject to the potentiality for deportation inherent

in the secticns which I read to Your Honours, that

is section 13, 14 and the other sections which

provide for persons who become inmates of a

mental hospital, persons who live off the earnings

of prostitutions, certain kinds of convictions, persons

who are advocates of the overthrow of the government

and the like.

So that in 1967 there was applicable to him some forms of what might be termed "probation" or

"conditions" set by the Parliament itself under the

law which, for this purpose,we submit is a law

with respect to immigration dealing with the

question of absorbtion. By 1972 the period had run

during which any probation prescribed by

Parliament might operate.	He had, so to speak, passed
through the probationary period.	He had then,

applying the tests recited by His Honour

Mr Justice Williams and the authorities he has referred to, become part of the Australian people and that has consequences in two directions. For

the present purpose, we address the consequence

constitutionally, because constitutionally it is our

ClT26/1/SR	46	8/6/88
Nolan

submission, that once the point came in 1972

where he was no longer deportable under the

applicable law prescribed by Parliament dealing

with the question of absorbtion he was beyond the

power. So that independently of any question of

construction of retrospectivity that may arise,

and we will deal with that separately relating to

the 1974 amendment, but independently of that in

1972 and thereafter he was no longer capable of

being subject to a law with respect to irmnigration

by reason of the statutory provisions themselves.

They had provided the probationary conditions or

terms or potentiality for deportation and he had

passed that period.

Now, if one accepts what is put in those

authorities, then at that point he was beyond the

power and therefore one does not even get to the

question of whether section 12 of the Act, as it

now is and as it was at the time of the

deportation order, as a matter of construction

applies to him and there is a separate issue about

that and whether it is retrospective, because

it is beyond the irmnigration power provided in

the CONSTITUTION.

GAUDRON J:	Does not that equate settlement within the country with legislative provisions from time to
time iri force as to deportation?  I have some
difficulty seeing why that equation should exist?

(Continued on page 48)

ClT26/2/SR	47	8/6/88
Nolan

GAUDRON J (continuing): For example, in the present case,

it may well have been that notwithstanding that

no deportation order could have been made, it was

everyone's intention to return to England and

subsequent events transpired, but everything was

packed up on the quay, as it were, and there was

no intention to remain in Australia.

MR CASTAN: Yes. Perhaps I have overstated it. It is

clear from the authorities, we would respectfully

submit, that there are two sides to this concept

of absorption. There is specific discussion

of that concept, the very concept that Your Honour

has just put to me, by His Honour Sir Garfield Barwick,

in the QUEEN v FORBES, the KWOK KWAN LEE case in 1971,

referred to in paragraph 14 of the summary. That

is specifically discussed. It is a two-sided process,

yes. There must be the intention to be absorbed; one

become absorbed. So, there is the requirement of

must become absorbed subjectively, so to speak.

the intention to settle permanently and more than
that, perhaps, more than the intention, the requirement

of in fact becoming settled permanently.

DAWSON J: That is what I am ~~4it,bout. There was not, at the relevant

time, ~r provision to beccr.in.g 8:!1 Aust..alian citizen in

relation to the defe.."'lclant here, was there?

MR CASTAN:  None relevant to this deportation question.

DAWSON J: Am I wrong in thinking that there was some

naturalization ceremony that was available?

MR CASTAN: It was available.

DAWSON J: At all relevant times?

MR CASTAN: Certainly available, yes.

DAWSON J: What was that naturalization ceremony?
MR CASTAN:	I think the answer to that, Your Honour, is

the naturalization ceremony provided by the

AUSTRALIAN CITIZENSHIP ACT, which was available

to persons coming from the United Kingdom, as with

other innnigrants.

DAWSON J:  Which would demonstrate their intention to become

absorbed into the connnunity.

MR CASTAN: Well, certainly there was no statutory suggestion

that that was a statutory requirement, or tesL.

Whether that would demonstrate it, would always
be a matter of fact in a particular case. It might

be one of the criteria. If one had a fact case, that

ClT27/l/JM	48	8/6/88
Nolan

is to say, a case arising where questions arose

as to whether or not there had been in fact

absorption, as distinct from what we might call

deemed absorption, or meeting the prescribed

conditions, then that might be certainly a

relevant consideration, and if it were necessary -

I am not sure if it is submitted in this case -

I do not think it is suggested in this case that this is a

case ¥ihere t::hare is any factual element that would

militate against there having been absorption in

the relevant sense by the end of the five-year

period in 1972. I do noc think that - we say

that this is a case where he has arrived and he

has become an Australian and at the end of the

five years there is a situation where he has

complied with all the statutory requirements and there is nothing to suggest otherwise. There is

no element in this case of contt"oversy about what he did or did not do in the meantime between the ages of nine and 14. That, is not a coo,poneri-e-.

One can conceive of such cases, yes, YOU?"~ Che can conceive of cases where,

notwithstanding that the person has not been deported,

they have either had the intention not to settle

permanently, in which case they do not meet the test of factual absorption. And it may be that

such a person is still to be regarded in some

sense as an immigrant and therefore potentially

still subject to a law with respect to immigration.

(Continued on page 50)

ClT27/2/JM	49	8/6/88
Nolan

GAUDRON J:  But let me put my problem to you in other terms,

if I may: it seems to me the mere fact that the

Parliament may be taken to have indicated its

intention to deem absorption to have happened at

a certain stage as, I think, you suggest in terms

of the 1948 Act, after five years, nothing having

happened in the meantime - nothing relevant having

happened - that would not alter the power of the

Commonwealth to legislate with respect to immigrants, would it?

MR CASTAN:  In our respectful submission, it would in respect

of those who have passed beyond the power.

GAUDRON J:  Yes, but that is a factual question and has

nothing to do with the implied deeming.

MR CASTAN:  The matter is best put, in our respectful

submission, by saying, "There is, so to speak, two

components." Can I take Your Honour briefly to the

judgment of His Honour Sir Garfield Barwick in the

KWOK KWAN LEE case. He discusses this two-sided

component that Your Honour has adverted to. That

is REG V FORBES: EX PARTE KWOK KWAN LEE,

(1971) 124 CLR 168, and at page 172 His Honour deals

with that. The case must be read keeping in mind

that it was a case dealing not with a permanent

resident at all but a temporary resident so that,

to some extent, His Honour's reasons and discussion

deal with a somewhat different circumstance.	The
person	concerned never got to the point of even

having complied with the basic requirements because

they were only on a temporary_ permit in any event but

keeping that in mind one is assisted nevertheless.

At page 172, just below half-way down the page,

His Honour says:

The applicant's submissions 1n my op1n1on

ought not to be accepted. In my opinion, they

are clearly erroneous.	There can be no doubt
that the Parliament has power under s Sl(xxvii)
to say who, if not being a member of the
Australian community at the time of entry, shall
enter Australia either for a temporary stay or for permanent residence and to fix the terms
upon which such person may enter and may remain
in Australia -

and he refers to some of those authorities.

It was said in O'KEEFE V CALWELL that

immigration as a concept involves two elements

(a) entry jr,to the cot1ntry and (b) absorption

into the community of the country. Parliament

clearly has authority to legislate with respect

ClT28/l/ND	so	8/6/88
Nolan

to both elements and laws which control
those elements can be made under s 51(xxvii).

It can say who may enter and it can say on what terms if at all a person so entering may

become a member of the Australian community.

In the Act Parliament has exercised these

powers. It is there provided quite

unequivocally that a person who is not

already a member of the Australian community

may not enter Australia except in pursuance

of an entry permit. See definition of

"immigrant". If he has no permit and enters

Australia he is a prohibited immigrant. It scarce needs saying that a prohibited

immigrant may not by any means become a member

of the Australian community whilst he is a

prohibited immigrant. By the very

description he is not a person having any title

to remain in the country. Once a prohibited

immigrant, he remains both an immigrant and

a prohibited immigrant subject toss 7 and 10.

(Continued on page 52)

ClT28/2/ND	51	8/6/88
Nolan

MR CASTAN (continuing):

The Act provides for three types of entry permit. Firstly, an entry permit for a temporary stay. In that case the permit must nominate the duration of the

stay. See definition "temporary entry permit"

ins. 5(1) ands. 6(6). Secondly, an entry

permit to enter and remain, s. 6(3) -

that is the one applicable here -

is permitted to enter and to stay indefinitely. Thirdly there is a permit to remain in	that is the permit given to a person who appropriate where a person has been given a
temporary entry permit and there has been a
subsequent decision made before or after the expiry of such a permit that that person may
remain indefinitely. See ss. 10 and 6(2) and
(3). Clearly a person who has sought and obtained a temporary entry permit cannot during its duration become a member of the
Australian community. He remains of
necessity an immigrant in fact under the
terms of the entry permit bound to remove
himself and liable to be removed. A person
whose entry permit has expired becomes at the
moment of expiry a prohibited immigrant. He may not cease to be a prohibited immigrant
unless at his request a further permit,
whether a further temporary entry permit or

a permit to remain, is granted or five years

elapse from that expiry without the making of

an order for his deportation.

The Parliament by the Act has thus

ensured that no immigrant shall obtain a title

to become a member of the Australian community

without the concurrence of the Australian

people expressed through the grant by its

Executive Government of an entry permit to

remain or by a lapse of five years from the

expiry of a temporary entry permit without

Executive action. I so express my conclusion

because in my opinion a person whose temporary

entry permit has expired and who does not

obtain a permit to remain may not become a

member of the Australian community during the

five years which must elapse before he ceases

to be a prohibited immigrant pursuant to

the provisions of s. 7(4). Thereafter a question

will remain whethe:i:- he has subsequently become

a member of the community and has ceased to be

an immigrant.

ClT29/l/HS	52	8/6/88
Nolan

He does not in my opinion automatically cease to be an immigrant upon the

expiry of those five years. He merely

ceases to be liable to deportation as

a prohibited itmnigrant who has become

such by reason of the lapse of an

entry permit. The Act thus nominates at

the point of entry of a person not

entitled to enter Australia through

the terms of an entry permit and the
provisions of Part II ..... not only the
conditions upon which the entry may
take place but whether or not and when

the immigrant, can begin to become a

member of the Australia cotmnunity.

The reasons are valid. And then compares previous

provisions. Could I also refer Your Honours to
passages which address this issue, in the judgment

of Your Honour the Chief Justice in REG V DIRECTOR-

GENERAL OF SOCIAL WELFARE EX PARTE HENRY,

(1974) 133 CLR 369. At page 380, there is again

a summary of the early authorities and I will

not go over those again, it repeats some of the

passages which I have already referred to, including

KOON WING LAU V CALDWELL,and at the foot of the

page refers again to a passage of His Honour

Chief Justice Barwick. And goes on at the top of

page 381:

These statements must now be accepted

as authoritatively establishing that

the power is not confined to the

control of entry and that it extends

to control of the absorption of

itmnigrants into the country.

It was submitted that, despite

these observations, the subject matter

of the power is immigration, not

itmnigrants - the opinion voiced by

Mr Justice Higgins in EX PARTE WALSH

and JOHNSON.

(Continued on page 54)

ClT30/l/SR	53	8/6/88
Nolan

MR CASTAN (continuing):

Although the distinction is well taken, it

cannot be pushed too far. A law about

immigrants may be, and very often will be,

a law about immigration. The question in

every case must be: Is it a law about
immigration? The fact that it can also

be described as a law about immigrants is

by the way. It is, I think, generally

accepted that Parliament can in the exercise

of the power, if it is so minded, pass laws

requiring immigrants to undertake prescribed

educational courses and tests to fit them for

admission into the Australian community.
Indeed, it can prescribe such qualifications as it selects as conditions of eligibility

for admission into that community. Such

laws relate directly to the second of the

two elements which are said to be central

to the constitutional conception of

immigration. However, it does not follow

that what is prescribed, whether by way of

qualification or otherwise, must be seen as

something which necessarily facilitates

admission into the community.

And then goes on to discuss the situation of

children. So that, in our respectful submission,

what we have is a structure in which the Parliament

itself sets the criteria. There may be - it is

conceivable to think of a case where one has met

the conditions, as it is put, but then it is said

"but this is a case where the person still falls

within the power" because there is some component

they have not settled, they have not really intended

to settle. They have not met the conditions of

becoming part of the people of Australia.

(Continued on page 55)

ClT31/l/SH	54	8/6/88
Nolan

MR CASTAN (continuing): In such a case one would say

notwithstanding that they have fallen beyond

the deportation pow~r as e~pressed in such

legislation, they are still within,so to speak, the

potential grasp of the power because they are

still immigrants even if five years has run.

One can conceive of such cases.

But, in our respectful submission, in the

ordinary case and in a case such as this where

there is nothing more than the fact of having

arrived as a young boy and then five years expiring

and nothing else, then this is a case where Parliament

itself has set certain criteria, conditions,

a period of probation, as it is sometimes referred

to. In our respectful submission, once a person

meets those conditions in the absence of anything

else he passes beyond the scope of the power.

BRENNAN J: Mr Castan, I am not following why we are looking

at the question of the scope of the immigration

power? The order is made against your client

under section 12 and that is based on the "aliens

power".

MR CASTAN:  No, Your Honour, we assume it is based on both.

We have assumed - - -

BRENNAN J: That is an assumption which is a very large one, is it not? Because the proposition then

must be that either the aliens power is restricted

to immigrants or that the aliens power is not
so restricted. If it is restricted to immigrants
then we are looking, no doubt, at both aliens

and immigration; but if the aliens power extends

to those who are not immigrants - and this is,

I think, the view that has been held in the United

States - then the scope of the immigration power

is irrelevant to your case, is it not?

MR CASTAN:  Of course, if the aliens power extends beyond

immigrants and we are an alien - if our arguments

earlier put are rejected - then, subject to

arguments of construction which I will come to,

certainly the scope of the immigration power

is irrelevant.

BRENNAN J:  What ground have we for thinking that the aliens

power is restricted to immigrants?

MR CASTAN:  No, it is not a matter of arguing that it is

restricted to immigrants, it is a matter of arguing

that it cannot appl~ that the Act expressed

is too wide in so far as it purports to appiy

to this plaintiff. Assuming for the manent that my learned
friend - and we had sane discussion about what the issues were
that the CrCMn might rely on and it has been agreed that the

issue of the aliens power and the inmigration power are both

alive in this case.

ClT32/l/SDL	55	8/6/88
Nolan

BRENNAN J: Well, for my par4 I do not see why they are

because if the alien's power extends to provide for

deportation of an alien, whether within the immigration

power or not, then it seems to me that the immigration

power is irrelevant.

MR CASTAN:  No, Your Honour. What my learned friend would seek

to say, as we understand it, is that if you escape the

alien's power because you are a subject of the Queen,

we can still get you because you are an immigrant still.

So, he seeks to picks us up - - -

BRENNAN J: Not under section 12 because you would cease to be

an alien. Section 12 only applies to aliens.

MR CASTAN:  No, no. Section 12, in its present form,

Your Honour, is the section. Perhaps, I have not

explained it. This order was made under section 12 of

the current Act, the post-1984 Act.

BRENNAN J: Yes.

MR CASTAN: That applies to non-citizens.

BRENNAN J:	I see.
MR CASTAN:	A class created pursuant to which this order was made.

The order was made in 1985, Your Honour, seeking to

deport this plaintiff. After the amendment of the Act

in 1984, the 1984 Act changed the class from either

aliens or immigrants to non-citizens wrapped up - - -

BRENNAN J: And that picks up both aliens and immigrants?

MR CASTAN:	Presumably so as the Commonwealth would have it.
BRENNAN J:	I follow.
MR CASTAN:	It is for that reason that we sought to address

both of those issues. (Continued on page 57)

ClT33/l/AC	56	8/6/88
Nolan

BRENNAN J: Could I just clarify one further point? It	is not your submission that the alien's power
ceases to have application once the alien ceases to be an irm:nigrant.
MR CASTAN:	No, Your Honour. That question was addressed in the POCHI case and rejected.
BRENNAN J:	Yes.
MR CASTAN:	We do not put it on that basis.  We put it on the

basis that he is not an alien.

BRENNAN J:  Yes. You are saying he is not an alien and he is

not an irm:nigrant.

MR CASTAN:  Yes, Your Honour. He was an irm:nigrant in 1967.

On one argument, he may have ceased to be an irm:nigrant somewhat earlier than in 1972, we would respectfully

submit.

BRENNAN J: Yes.

MR CASTAN:  But, in any event, for the purpose of this argument,

certainly by 1972 he had ceased to be an immierant

and ceased to be within the scope of the power in a

case such as this. Your Honours, may I turn to an

alternative argument under the irm:nigration power

which addresses the matter in a slightly different

way. We would respectfully submit that the power of

Parliament to pass laws dealing with the matter of absorption of migrants, assuming that the power

encompasses that topic as a component of inunigration,

is it self-limited by the constitutional fact of

whether a migrant has, in fact, become part of the

Australian conmrunity.

(Continued on page 58)

ClT34/l/SH	57	8/6/88
Nolan

MR CASTAN (continuing): And it is our respectful submission that the combination of section 12 and section 14A

of the 1984 Act - and Your Honours will remember

section 14A was the section which provided that

time spent in custody did not count for the purpose

of the 10 years. The other matter I mentioned

to Your Honours earlier is that a new period of

10 years was prescribed in 1984. Persons could

be deported, non-citizens as a new category, and

the period during which, potentially, a person

might be liable to deportation was increased from

five years for immigrants under the old provision
or unlimited for aliens to a universal 10 years

for both categories under the 1984 legislation.

But the 10 years was not just 10 years because

section 14A provides for not counting periods when

a person is in custody and that included various forms of custody which included - "any custodial

institution" is the description used. It is our

submission under this alternative argument that

the length of time that might be prescribed and

that arises from the Act on that view might extend

to such a great period that the Act goes too far

and goes beyond what would be the constitutional

fact of absorption. In other words, especially

in the case of immigrants who arrive as children,

there are persons wh~ if you count the 10 years

of residence not in a custodial institution and

then count the situations in which they might be

placed in custodial institutions, potentially for

a long period, then you have persons who on any

objective or constitutional analysis of the concept

of absorption must necessarily have been, or may,

in a class of case, have been absorbed.

In other words the section goes too wide.

It must follow that a person to be subject to the deportation power under the new section 12 must,

potentially, still be an immigrant - must be a person who is within the class of immigrants and
persons who might have been in Australia for, perhaps

20 or 30, one can conceive of even 40 years, who

may have arrived as children, who may have spent

nine years, perhaps, nine-and-a-half years growing

up from childhood and then been placed in an

institution or had periods in an institution such

that a very large number of years has passed since

their original arriva~ that they have ceased to

be part of the immigration. They, necessarily,

have become part of the Australian community.

(Continued on pag~ 59)

C1T35/l/AC	58	8/6/88
Nolan

MR CASTAN (continuing): That constitutional fact, we would

respectful submit, limits the operation of the

legislative power. The Commonwealth cannot set

periods, in relation to permanent resident, who

are subject to the possibility of deportation

that is longer than what is, as it was put by

His Honour Mr Justice Williams,and I am referring now

to a reference at paragraph 18 of our submissions,

a reasonable condition. And we would respectfully

say that is like the example of a person who is

left liable to expulsion for the rest of his

life. I see that is perhaps time for the

adjournment, Your Honour.

MASON CJ:	Mr Castan, could I ask you how long the balance of your argument will take?
MR CASTAN:	I think not more than half an hour, Your Honour.
MASON CJ:	Yes, and Mr Solicitor?

MR GRIFFITH: We would hope then to finish this afternoon,

Your Honour.

MASON CJ:  Yes, very well, we will resume at 2.15 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

ClT36/l/SR	8/6/88
Nolan

UPON RESUMING AT 2.16 PM:

MASON CJ:	Yes, Mr Castan.
MR CASTAN:	If Your Honours please. Your Honours, dealing

with the alternative argument summarized in
paragraph 18 of our summary of contentions, it was

to the effect that ultimately there are

constitutional tests of the concept of immigration

and the argument is that the present form of

section 12, encompassing as it does 10 1.ears plus

periods, as it said, "not to be counted', goes

beyond what is a reasonable condition, to use the

words of His Honour Mr Justice Williams in the

KOON WING LAU case and by way of support for that

proposition we would refer to another passage in

that case not set out in the summary, the passage in the judgment of His Honour Mr Justice Dixon in

the KOON WING LAU case, (1949) 80 CLR 533, at

page 577.

His Honour Mr Justice Dixon supports, we would

respectfully submit, the general way in which we

have put the proposition under our principal

argument but also supports this alternative view.

He says, about 15 lines from the top of the page,

on page 577:

Whatever may be the tests for ascertaining

whether a man belongs to the Australian

community, I see no reason for saying that a

law which denies to an immigrant liberty to

enter or remain in the country unless he obtains

a permit is not a law with respect to

immigration because it gives to the authorities

power to extenG the permit from time to time

if no limit upon the number or period of the

extensions is imposed. It is a law with

respect to immigration because it takes the

immigrant before he has settled in the country

and provides that he shall enter or remain

conditionally. The condition it imposes is

in effect that he shall go out when the

authorities withdraw their consent to his

remaining. Sub-section (4) of s 4 is not in

my opinion invalid.

And then the passage that we draw attention to:

(Continued on page 61)

ClT37/l/ND	60	8/6/88
Nolan
MR CASTAN (continuing):

If it left the person named in an expired

or cancelled certificate of exemption

liable for the rest of his life to expulsion

it might perhaps conflict with the

principle ..... that the immigration power
will not support a law for the deportation

of persons who have settled in Australia so as

t:D have become members of the Australian

community.

So that the concept of conditions as it is put

is one that, for the purpose of this argument, we

accept, but we say ultimately there is a limit to it. immigration and we say the particular provision we

are now concerned with, that is to say section 12 of

the current Act under which the order was made,

because of the way in which it works, the combination

of 10 years plus unlimited periods, potentially,

associated as a result of the operation of

section 14A is unreasonable, to use His Honour

Mr Justice Williams' words, or is analogous to going for ever or the rest of his life, to use

Mr Justice Dixon's words.

Passing then to the further alternative way in

which the matter is put, and we would then submit

perhaps an even broader proposition, we would

respectfully submit that while Parliament has the

power, of course, to pass laws deeming absorption

to have taken place, it has no power to pass laws

under the immigration power deeming a person not to have been absorbed if that person has in fact been

absorbed. This view of the scope of the power to

pass laws with respect to absorption proceeds upon

the basis that while Parliament can pass laws dealing

with the subject of absorption, absorption itself is

a constitutional fact in respect of any given
immigrant.	If he has in fact been absorbed, then

Parliament cannot deem him not to have been absorbed.

DAWSON J:  Surely it can provide a means of being absorbed

and make that the sole means.

MR CASTAN:  In our respectful submission, the absorption is

itself something that is objectively or

constitutionally determined under this argument, and

we would respectfully submit that that is beyond

the scope of Parliament's power, if a person is, in

truth, become part of the Australian community,

looked at, so to speak, objectjvply, as a matter 0f

fact determined in respect of a particular individual.

ClT38/l/HS	61	8/6/88
Nolan

DAWSON J:  Yes, I must confess I do not understand that.

If there is a means of becoming a member of the

community, I do not see why that should not be

made the sole means. In other words, if,

for instance, citzenship is the means which is

now available to do that, I do not see why that

should not be made the sole means if it were

thought advisable to do it.

MR CASTAN:	We would respectfully submit that the test is becoming a member of the community, or
becoming a member of the people of Australia
and that one can become a member of the people
of Australia and that if one did, then a test
imposed by Parliament could not, in effect, say one had not if one in fact had. That is an
objective fact and not a fact that is, so to speak, left in the hands of the Parliament, or only left in the hands of the Parliament if the test
itself is one that is not, so to speak, overridden
by the objective determined facts - that the
person has in fact become absorbed - looked
at when one assembled all the total collocation
of facts. Thus, in the case of - let us say what we might term, the ordinary case of the
immigrant coming from overseas, coming to
settle in Australia, arriving, settling and
within a short time becoming routinely members
of the Australian community; perhaps persons, to take an example that might deal with
Your Honour's instance of citizenship, who had
not taken out citizenship, had been brought up
in Australia and had left Australia and spent
a couple of years, say in the United States,
attempting to set up a business there and come
back to Australia; a person whose whole childhood
and life had been in Australia and had lived,
but experimented with living, in the United the age of one from Italy, perhaps and had
went away from Australia and come back for not taken out citizenship, but had in fact a short time: on that re-entry, that person
could become absorbed as a member of the Australian community within, perhaps, a matter of days.

(Continued on page 63)

ClT39/l/JM	62	8/6/88
Nolan

DAWSON J: I do want to pursue it but I do not see why,

necessarily, if the immigration was made subject

to a condition that absorption into the community

or becoming a member of the comunity was dependent

upon the taking out of citizenship. I do not

see why that is not a law in respect to immigration;

why it is not a valid condition to impose on

it.

MR CASTAN:  That is the way in which we put that argument,

Your Honour, and we say in respect of the particular

plaintiff that this was a case - - -

DAWSON J: Just one further question. Perhaps this concept

of absorption was necessary in previous times

because people who are British subjects were
not subject to naturalization, there was no provision

for citizenship, and some other test was necessary

but may not be necessary now.

MR CASTAN:	Yes, we would respectfully submit that it is not for that reason but it is rather a concept
associated with the very notion of immigration
and non-immigration.
DAWSON J:	I follow that.

MR CASTAN:  And, with the greatest of respect, we would

submit that what Your Honour puts would be the

appropriate way of approaching it if there were

to be in the CONSTITUTION what Mr Quick had apparently

sought back in 1898, a power with respect to

citizenship.

DAWSON J:	But it does not affect your argument in this
case?

MR CASTAN:  No. The last alternative that we seek to

put before the Court is the approach which is,

perhaps, the narrowest possible view of the power

and that is that the immigration power is limited

to the act and process of coming to Australia

and settling permanently but does not deal with

absorption at all. That is a view that was put

by His Honour Mr Justice Higgins IN RE YATES.

It has not been generally a view that has been

supported, as Your Honours have seen from the

body of authority that we have referred to in

the course of the other arguments, and we would
simply seek to maintain as an alternative, if
the other arguments are not otherwise accepted,

that that wider view would apply.

C1T4O/l/SDL 63 8/6/88

Nolan (Continued on page 63A)

In the case of the plaintiff we would say

that applied - having been granted a permit to enter and remain but having come routinely as

part of a family which settled in Australia -

he would clearly have passed beyond the power

within perhaps a very short time of arrival.

There appears to be no other authority to

refer to in relation to that argument than what

appears - what was then the dissenting view of

His Honour Mr Justice Higgins - in that case

set out in paragraph 21.

(Continued on page 64)

ClT40/2/SDL	63A	8/6/88
Nolan

MR CASTAN (continuing):  Could I turn then, Your Honours,

to the third part of the argument which moves away

from questions of constitutional power to a

question solely of construction of section 12,

which assumes that it is within power. It is

respectfully submitted that the operation

of the Act in its form prior to 1984 was such

that by the expiration of five years from entry

into Australia the plaintiff had become immune

from deportation, that he had, as it is put, a

status secure from deportation. That terminology

is used by His Honour Mr Justice Stephen in the

case of SALEMI V MACKELLAR (No 2), (1977) 137 CLR 396,

at page 430. Your Honours, what happened in

that case was that in the course of His Honour

Mr Justice Stephen's judgment in SALEMI V MACKELLAR

dealing with a question of natural justice as

applicable to the Act as it was prior to 1984,

there was a portion of His Honour's judgment in

which, towards the bottom of page 429. His Honour

cormnences to recite what he describes as "the scheme of

the Act". And he then sets out the various

categories, much in the way that it has been

discussed here and towards the foot of page 430,

or about three-quarters of the way down, His Honour

says:

(Continued on page 65)

ClT41/l/SR	64	8/6/88
Nolan
MR CASTAN (continuing):

It will be seen that an immigrant (not

being an alien or prohibited immigrant) who
has resided for more than five years in
Australia without conviction for the

abovementioned offences becomes immune from

deportation. In this sense, by the effluxion

of time, he attains a status secure from

deportation.

We would respectfully submit that that is a correct

analysis of the operation of the sections that

have been directed to Your Honours' attention under

the old Act; that they are applicable for the case

of the plaintiff who entered under the old Act

and still had applicable in respect of him that

Act after five years; that after the expiry of

the five years not having fallen into any of the

categories that were there defined in terms of

mental hospitals and institutions and crimes and

living off the earnings and so on, he had the accrued

legal right to remain in Australia permanently

but that is a right in the sense that his rights

were granted by an entry permit which in its terms

said he was given permission to enter and remain

under section 6 and that the permit is to enter

and remain. It means what it says; he had a legal

right to enter and remain. It was not capable

of being taken from him lawfully in any way whatsoever.

An attempt to deport him after the expiration of
those five years must, necessarily, have been met with habeus corpus which would, undoubtedly, have

been nisi which would have been made absolute.

There was no lawful basis upon which his right

to remain in this country could be taken from him.

We then have in 1984, in respect of a person

who has had that right vested in him for 12 years

at that time, we had amendments and we would

respectfully submit that, assuming there was power

- and we have addressed the power argument separately -

assuming that there was power, section 12 is not

expressed in a way which would explicitly operate

retrospectively so as to take away the accrued

right - properly construed.

ClT42/l/AC	65	8/6/88
Nolan

MR CASTAN (continuing): It does not purport in its terms

to operate in respect of people who have achieved

immunity from deportation under the legislation

applicable to their immigration. I refer

Your Honours to section 8(c) of the ACTS INTERPRETATION

INTERPRETATION ACT 1901 which provides that:

8. Where an Act repeals in the whole or in

part a former Act, then unless the contrary

intention appears the repeal shall not -

(c) affect any right privilege obligation or

liability acquired accrued or incurred under

any Act so repealed.

So that, as a matter of plain construction, we would

respectfully submit, as a matter of the application
of section 8(c), this is a section which simply does

not apply so as to take away the accrued right notwithstanding that under the test apparently

applicable under section 12 as amended in 1984, the

10. years as counted under the new legislation had

not expired.

BRENNAN J:	Does 8(c) apply to in:mru.nities?
MR CASTAN:	It is expressed in terms of right, privilege, obligation or liability. It is certainly not
expressed in respect of inmrunities. We would
respectfully submit that there exists, in this case,
a right that - there is an immunity but there is more
than that. There is a right and that is tested by
imagining what might have happened at any time between
1972 and 1984 if any agency had sought to deport the
plaintiff.  He had a right to stay and he would plead
that right to stay.

(Continued on page 44)

ClT43/l/SH	66	8/6/88
Nolan

MR CASTAN (continuing):  He had the right to be in Australia

granted to him by the Commonwealth under an entry

permit which said he can enter and stay and

whatever qualifications, conditions or period of

probation or other limitations there were on that

when granted had run there was nothing to interfere
with it and he, therefore, we would respectfully submit, had a right, as well as an immunity from

deportation, he had the right to remain in Australia.

So we put it positively as well as negatively in the sense of being immune.

There is some assistance, mainly, of course, dealing with what we might call commercial-type cases

but some assistance in interpreting these kind of
provisions obtained from CARR V FINANCE CORPORATION

OF AUSTRALIA LIMITED, (1982) 150 CLR 139, at

page 147, in the joint judgment of Justices Mason,

Murphy and Wilson. In dealing with a change in the

law relating to the enforcement of mortgages, the

question arose whether the power of sale was available to a mortgagee upon default and in discussing whether or not that should be regarded
as an accrued right which was capable of enforcement,

notwithstanding an amendment which on the face of

it might have meant that it was no longer possible

to enforce that without notice of a particular kind

being given, which was not applicable at the time

when the moneys fell due.

There is a reference at that page to the well-

known passage in MAXWELL V MURPHY in which

Chief Justice Dixon stated the general common law

principle governing the retrospective application

of statutes in terms which have quoted in many later

cases:

"The general rule of the common law is that a statute changing the law ought not,

unless the intention appears with reasonable

certainty, to be understood as applying to

facts or events that have already occurred in

such a way as to confer or impose or otherwise

affect rights or liabilities which the law had

defined by reference to the past events. But,

given rights and liabilities, fixed by reference

to past facts, matters or event, the law

appointing or regulating the manner in which

they are to be enforced or their enjoyment is
to be secured by judicial remedy is not within

the application of such a presumption. Changes

made in practice and procedure are applied to

proceedings to enforce riglils and liabilities,

or for that matter to vindicate an immunity
or privilege, notwithstanding that before the

change in the law was made the accrual or

ClT44/l/ND	67	8/6/88
Nolan

establishment of the rights, liabilities,

immunity or privilege was complete and

rested on events or transactions that were

o the rw i s e pa s t and c 1 o s e d . 11

As the Chief Justice proceeded then to

recognize, the distinction is clear enough

in principle, but difficulties have always

attended its application.

And there are numerous cases, I might say,

Your Honours, dealing with that distinction.

(Continued on page 69)

ClT44/2/ND	68	8/6/88
Nolan

MR CASTAN (continuing): The actual disposition of the CARR

case is dealt with at page 148 in the last

paragraph where the Court discusses the nature of

the rights and comes to the conclusion that the

amending Act deals with matters of substantive

right and it is held that the substantive rights are

not to be affected. Again, towards the foot of

page 149 there are references to some of the cases

on limitation of actions, which has been a fruitful

source of litigation on this problem.	At the foot
of page 149 the judgment reads:

Nor do we think that the appellants can

derive any comfort from the limitation cases -

and they are set out -

The decisions in these cases are clear

illustrations of the operation of the rule.

If the time allowed for instituting an

action has already expired when an amending

Act extends the time, that amendment will not

operate to revive the extinguished cause of action or render it capable of enforcement.

Conversely, if the time within which an

action may be taken, or a step taken in

proceedings, is abridged, the amending law

will not apply so as to place. On the other

hand, so long as there is yet time for the

action to be instituted or the step taken,

an abridgment of time will apply; it is

then no more than a procedural statute

affecting the future conduct of the

proceedings. It seems to us that this

line of cases reflects the care of the

common law for vested rights and its concern

to avoid injustice.

Thus, we would concede that for the purposes of

construction of section 12, it has a limited

retrospective effect in that in respect of a person

who is, so to speak, still seeing out their five years

in 1984, a person who entered, say, four years prior,

who entered in 1980, it might be said when the law

is amended in 1984 it cannot be said of them that

they have yet got the accrued right and therefore

if the law is then amended and it i.s 10 years that you

have to await your final status of total freedom

from deportation, then that person who has not yet
attained the five year status, the time has not yet

run for them, it might be said is still subject to

the new Act - the amending Act is retrospective to

th;:it: extent - but in respect of a person whose time

has fully run, such as a case such as this, some 12

years prior to the amendment, it is in a different

category.

ClT45/l/HS	69	8/6/88
Nolan

Perhaps I should just give Your Honours

references to three other cases that were not

included in this list which embody the similar

principle; OGDEN INDUSTRY PTY LIMITED V LUCAS,

(1967) 116 CLR 537, at page 554, KRALJEVICH V

LAKEVIEW AND STAR LIMITED, (1945) 70 CLR 647,

and MATHIESON V BURTON, (1971) 124 CLR 1. I will

not take Your Honours to those.	They all strike the
same principle.	Your Honours, those are the
arguments for the plaintiff.	I should mention

that my learned friend and I have agreed that with

respect to the portion of the case that is not the

subject of the demurrer, paragraph 17 to paragraph 20,

which raise issues on the statement of claim

concerning the application of the rules of natural

justice and alleged breaches of those rules, we

are agreed that the case is an appropriate one to

be remitted to the Federal Court of Australia and

in a case such of this, regardless of the result

on the demurrer, as it turns out. If the Court

please.

MASON CJ:	Thank you, Mr Castan. Yes, Mr Solicitor.
MR GRIFFITH:	If the Court pleases, may I hand up copies of our contentions.
MASON CJ:	Thank you.

(Continued on page 71)

ClT45/2/HS	70	8/6/88
Nolan

MASON CJ:  Yes.

MR GRIFFITH: If the Court pleases, my learned friend

referred fairly briefly to the legislation,

to the MIGRATION ACT and also the AUSTRALIAN

CITIZENSHIP ACT. If I may take the Court

briefly again to the various amendments, because

it does seem to us that there is a little bit

of confusion about the chronology and even
as to the structure of that which was effected.

May I firstly hand to the Court an extract to

the Parliamentary Debates 1983, as are referred

to in paragraph 1 of our contentions. These

extracts are useful to indicate to the Court

the mischief at which the amendments to the

MIGRATION ACT 1984 were aimed.

The first part of the extract is a

ministerial statement by the then Minister,

appearing at page 166, 3rd May 1983. To express

the point briefly, the Minister there makes the

point that the MigRATION ACT, up to this time, 1983,

discriminates, particularly so far as sections 12

and 13 are concerned, the deportation provisions,
against persons of non-Connnonwealth status. In
the middle paragraph, left-hand column, page 167,
the Minister makes the point that there is this

discrmination against persons of non-Connnonwealth

status. He says:

They are always liable to criminal deportation only in respect of crimes connnitted within five years -

deportation until Australian citizenship
is acquired, in contrast to persons of

he says:

Clearly this is inconsistent with the

Government's policy of removing

discrimination between different foreign

nationals. It is also inconsistent with

the Government's policy that all

non-Australian citizens permanently

resident in Australia should cease to be

liable to deportation after a specified

period of residence.

Accordingly, there was introduced the Huration

Amendment Bill. That appears in the second

reading speech at page 1085 of thes~ 8Xtr~~ts,

~n:i~~ ar~ ~2veral pages further on, 'Nhere the Minister

enlarges on the points embraced by his statement.

The second paragraph, left-hand column, page 1085

indicates that:

CIT46/l/JM	71
Nolan

The main purpose of the Migration

Amendment Bill 1983 is to reform the

MIGRATION ACT to remove the discrimination

between aliens and other innnigrants contained

in the criminal deportation provisions.

Permanent resident aliens - persons not

United Kingdom, Irish or 'Connnonwealth'

citizens - are treated differently from other

innnigrants in these provisions.

And then he repeats the matter that was covered

earlier by his statement. At the top of the

right-hand column, he says:

It is the intention of the Government

to review not only the M1'.&A.TION ACT but also

other legislation in my portfolio, including

the AUSTRALIAN CITIZENSHIP ACT 1948, to

reflect the changes I have mentioned and to

ensure that these acts provide for the equal

treatment of all non-citizens, whilst at the same time ensuring that appropriate controls

are maintained.

The last full paragraph in the same column says:

The Government must be able to protect

the Australian community from non-citizens

whose serious crimes show that they are a

threat to the cotmnUnity. The Government must

retain the legislative power to remove

criminals and undesirables who have chosen not

to connnit themselves fully to Australia or

who, through their own criminal actions, do

not qualify for ,membership of the Australian

community. The legislative power given by the

,MI~~.AI~ON AC~ must, however, apply equally

to all non-Australian citizens and not, as it

now does, discrminate between 'aliens' and

crimes connnitted and the period during which	'innnigrants' both in respect of the types of
theya::-e connnitted.

(Continued on page 73)

ClT46/2/JM	72
Nolan

MR GRIFFITH (continuing):

Apart from removing the distinction

and discrimination between non-Commonwealth

and other overseas-born residents who

are not Australian citizens, the Bill
also limits liability for deportation,
generally speaking, to those non-citizens

who commit offences during the first

10 years of permament residence .....

The introduction of a statutory

liability period of 10 years authorised

residence fulfils a pre-election

commitment by my Government that

non-citizens should be free from the

threat of deportation after a certain

period. Currently persons who are

citizens of non-Commonwealth countries

remain always liable to deportation

unless they become Australian citizens.

There is also attached a second reading speech

at page 207 of the · 1983

which the Minister does enlarge on these matters of

removing discrimination. In that context, it is

submitted that it is possible to follow the

structure of the amendments affected to the MIGRATION

ACT by the 1983 Act. We did have on our list of

authorities the 1983 Act and does Court have a copy

of that? That is Act No 112 of 1983? It begins

at page 1575 of the annual volume 1983.

MASON CJ: No, we have not got it.

MR GRIFFITH: That is a pity, I am sorry I do not have

copies with me, Your Honours, because we merely had

it in our list of authorities. In that print it

is a convenient form to follow the amendments

affected by the 1983 Act which, as the Court have

been told, was assented to 13 December 1983 and

came into force 2 April 1984 before the deportation

order. Section 3 is significant. It amends the
title of the principal Act by omitting"immigration,

deportation and emigratior'i.' -one picks up the long

title from the 1973 reprint that my learned friend

has already referred the Court to and substitutes,

"the entry into and presence in Australia of aliens

and the departure or deportation from Australia

of aliens and certain other persons." And, it is

our submission, that when one reads the following

parts of the Act, and perhaps not even necessarily

in association with the separate and the later

amendments of the AUSTRALIAN CITIZENSHIP ACT

it is submitted, that there is a clear movement of

bas is· for cons ti tut ional sup;io.;,t of this

ClT47/l/SR	73	8/6/88
Nolan

Act from the immigration power primarily to, we would submit, to the aliens power, although, of

course, supported also by the immigration power.

Section 4 of this Act amends section 5 of the

principal Act by omitting entirely the definition

of alien. And the Court will remember the

definition of alien was basically the exclusion

which excluded the British subjects and Irish

subjects et cetera from being within the definition

of alien for the purpose of the MIGRATION ACT.

And, of course, it was that narrow definition of

alien which was considered by the Court in the

POCHI case. The Act also omits the definition

of "immigrant" and substitutes the new concept of

"non-citizen',' as meaning"a person who is not an

Australian citizen."

As my learned friend has pointed out,

section 12, introduced by this Act, is a provision

which by reference to the subject-matter of

non-citizens makes provisions for deportation in

respect of particular criminal offences. However,

the Court will see that each of section 6, 7, 8

and 9 of the amending Act have the effect of, in

effect, removing the concept of immigrant, prohibited

immigrant and substituting the concept of citizen

and non-citizen in respect of the general provisions,

particularly of sections 6, 6(a) and 7 of the

MIGRATION ACT dealing with the right of entry,

whether for temporary purposes or permanent

purposes into Australia.

(Continued on page 75)

ClT47/2/SR	74	8/6/88
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DAWSON J: What was the result of abolishing the exception

of British subjects from the definition of "alien"?

Do they thereupon, some of them, become aliens?

MR GRIFFITH:  Yes. Your Honour, previously the Act had

section 12 dealing with "aliens" and section 13

dealing with "immigrants". Now, the definition

of "aliens" excluded British subjects.

DAWSON J:  Yes.

MR GRIFFITH: Therefore, British subjects could not fall within	the ambit of section 12. They may fall within the
ambit of section 13.

DAWSON J: Yes, I appreciate that but, thereafter, did some

British subjects fall within the definition of

"alien"?

MR GRIFFITH:  Yes, Your Honour, our submission is that they

do, yes.

DAWSON J: Well, I said 1tlefinition" but, the concept of "alien".

MR GRIFFITH:  Yes, Your Honour. If they are not Australian

citizens, our submission is that they do.

DAWSON J:	They are aliens.
MR GRIFFITH:	Yes, Your Honour.

DAWSON J: Despite the CONSTITUTION.

MR GRIFFITH: Well, Your Honour, we say the CONSTITUTION does

not provide for them to be citizens.

DAWSON J:  Could I just ask one further question. Is an

immigrant always an alien although the converse may

not be true?

MR GRIFFITH: Well, Your Honour, perhaps that depends how one

defines "immigrant" because one can acquire Australian

citizenship by birth, by descent or by ascent, by

reason of taking an oath of allegiance under the
provisions of the Act. Now, if one came to Australia

for the first time as an Australian citizen by reason

of descent, by being a child of an Australian parent and

having been registered pursuant to the provisions

of the Act within five years and complying with those

provisions, possibly two different views could be taken.

One cnu.lo. be that in that case the person coming to

Australia for the first time is merely a citizen coming back to Australia but, if the person has not been there before, it could be possible, Your Honour,

to say that that person is inn:nigrating to Australia.

ClT48/l/SH	75	8/6/88
Nolan

But we would submit that person would not be an

immigrant for the purpose of the MIGRATION ACT.

They would be an immigrant in popular usage of

that expression but they would be coming here for

the first time as Australian citizens.

DAWSON J:  I understand your answer to my question. You are

saying that a person who is a citizen is not an

immigrant.

MR GRIFFITH:	Yes, Your Honour.
DAWSON J:	And a person who is not a citizen is an alien.

Therefore, all immigrants are aliens.

MR GRIFFITH:  Yes, Your Honour.

DAWSON J: Well, I thought that was the answer.

MR GRIFFITH:	Your Honour, that would seem to be the clear intention of these amendments. Now, my learned
friend has referred also to section 14A, making
a provision, as it were, to provide a statutory
penalty box for time not to run during terms of
imprisonment and my learned friend did make some
reference to other forms of being confined, possibly
as an infant but section 14A does, by its terms, apply in respect of calculations arising from terms
of imprisonment and we have a case here on the allegations in the plaintiff's statement of claim

of the consequence of that operation in that it

is alleged that it appeared when the plaintiff had

been in Australia some 18 years, he had not been

imprisoned for only eight years or so of that period.

So, for the majority of the time, although he only	came here when he was less than 10, it still remained
that 18 years later he had spent 12 or so of the 18
years since that, in prison, although the Court does
not have, in the pleading, any details as to that. (Continued on page 77)

ClT48/2/SH	76	8/6/88
Nolan

MR GRIFFITH (continuing):  Perhaps if I could make one other

remark in answer to one of my learned friend's

comments with respect to these provisions and that

is that the old section 13 to which my learned

friend referred did, as he pointed out, provide

for a five-year period for the commission of offences -

that is in section 13(a). However, the operation

of section 13 is not conditional upon merely the

commission of offencewithinfive years of entry,

it is also made applicable by being convicted of

an offence committed within five years. So that

it is quite possible on the operation of the previous
section 13 that it might be some considerable time

after the five-year period before a conviction

could ensue. In fact, it could be an open-ended

period after the five-year period which by its

terms, none the less, would attach the operation

of section 13.

So, we would submit that section 13, as it

previously stood and, of course it has now been

repealed and there is no section 13 in the Act

at all, was not a section limited in operation

to five years. It could have the result of a person

being served with a deportation order some considerable

time after five years in connection with a conviction

for an offence committed within that five-year

period. So to that extent it was somewhat open-ended.

As I have indicated to the Court the print

of Act No 112 1983 does make clear the basic thrust

of the amendments introduced as a result of the

1983 Act and coinciding, but so far as coming into

force is concerned not coming into force for the

purpose of application in respect of this case,

there were also corresponding amendments to the

AUSTRALIAN CITIZENSHIP ACT. Now, those amendments

were assented to on 25 October 1984 but did not

come into force until 1987. Probably the most convenient way for me to take the Court through	those amendments would be if I could hand the Court
a summary of the provisions of the AUSTRALIAN CITIZENSHIP
AMENDMENT ACT which does enable quick reference
to the previous print of the AUSTRALIAN CITIZENSHIP ACT to pick up the structure of the amendments.

This is very much the second limb of the matter

referred to by the Minister when introducing the

amendments to the MIGRATION ACT dealing with the

removal of discrimination in respect of, one could

put it; British subjects or Commoawealth citizens

aucl nor1 D,.:i.ti.:..:, ;:,ubjects in the provisions of the

AUSTRALIAN CITIZENSHIP AMENDMENT ACT. The Act

provides that it was to come into operation 28 days

after the day on which it receives assent but,

as listed in section 2(2) on the commencement date,

ClT49/1/AC	77	8/6/88
Nolan

these remaining and really important prov1s1ons

did not enter into force until 1 May 1987. I am

instructed the reason for that was that it was

necessary for various State legislations to be

altered because they dealt with matters according
to State law by reference to the factor or the

status of '~ritish subject' as was defined in the

AUSTRALIAN CITIZENSHIP ACT, and it was not possible

to proclaim these provisions to remove the recognition

of the status of"British subject' until the State

legislations had been appropriately amended in

anticipation of that removal.	So that, as we understand
it, is the reason for the delay.

DAWSON J:  What is the relationship with an Australian citizen

with the Crown once you have removed section 7?

(Continued on page 79)

ClT49/1/AC	78	8/6/88
Nolan

MR GRIFFITH:  Your Honour, an Australian citizen then is

a citizen who owes allegiance to the Queen of

Australia, in that capacity.

DAWSON J:	He is a subject but not a British subject?
MR GRIFFITH:	He is not a British subject, no, Your Honour.

All the provisions for British subjects have

been removed.

DAWSON J:	But he is a subject still?
MR GRIFFITH:	He is a subject of Australia, Your Honour.
DAWSON J:	He is a subject of the Crown.

MR GRIFFITH: Subject of the Crown, Your Honour, but we

would say in her capacity as Queen of Australia.

DAWSON J:	Yes.
MR GRIFFITH:	Your Honour, as is indicated in this summary,

section 4 of this Act amended the principal

Act to remove the definition of "alien" which

previously appeared. In section 5 of the Act

which is picked up in the 1973 reprint, "alien"
was defined in similar terms to the definition

also removed from the MIGRATION ACT.

DAWSON J:	Can I just go back to that. The assumption,
therefore, underlying section 7 is that prior
to its repeal an Australian citizen was or had
the status of "subject of the Queen in her capacity as Queen of the United Kingdom"?

MR GRIFFITH:  We would submit not, Your Honour. When

Your Honour says, "Section 7 of this Act repealling

Part II". Is that the part you mean, Your Honour?

DAWSON J:  Yes.

MR GRIFFITH:	Could I come to that in a minute, Your Honour? I was intending to deal with the preliminary
parts first.
DAWSON .J:	Yes.
MR GRIFFITH:	Section 4 repealed, amongst at other things,

the definition of the word "alien" which, in section 5(1) of the Act previously provided:

"alien" menns a pc::rson who does not have

the status of a British subject and is

not an Irish citizen or a protected person. This is in similar terms to the repealed prov1s1on

of the MIGRATION ACT which was effected in 1984.

ClTS0/1/SDL	79	8/6/88
Nolan

One finds that on page 679 of the 1973 reprint

volume. Also .repealed was the definition of "the United Kingdom and Colonies" as meaning:

the United Kingdom of Great Britain

and Northern Ireland together with its

Colonies, the Channel Islands and the

Isle of Man.

And there are other omissions by way of repeal

as provided in section 4(2) as stated on the

summary sheet.

Section 7 repealed Part II of the principal

Act and that is the part of the Act dealing

with the status of'~ritish subject. My learned

friend has already taken the Court to the definition

of section 7 of "British subject" and that entire

part, section 7 to 9, was wholly r.epeal"ed

and Part III remained with amendments dealing

with the issue of Australian citizenship which

could be provided by birth, adoption or descent.

Section 10 deals with citizenship by birth;

section lOA, citizenship by adoption; section lOB,

citizenship by descent. Division 2 deals with the

grant of Australian citizenship and it is provided

that that does not apply, in section 12, to

a person who is an Australian citizen. There

were various provisions repealed by Act No 129

of 1984. Section 13 was introduced to provide

for the grant of certificat·es of Australian citizenship

and various other provisions, such as loss of

citizenship on acquisition of another nationality,

were provided.

The Act then also repealed Part IV of the previous Act, transitional provisions. That included

section 25 referred to by my learned friend

this morning which, in some circumstances, granted

some British citizens Australian citizenship
upon entry.	For example, the old section 25(3)

had that provision, and there are some other

provisions to the same effect.

(Continued on page 81)

ClTS0/2/SDL 80 8/6/88

Nolan
MR GRIFFITH (continuing): That entire Part to section 30

was repealed and the Act also affected various

other amendments to the remainder of the Act.

But as to this aspect of "British subject,"the

basic effect of the amendments as they came into

force on 1 May 1987 was to remove entirely the

provision in respect of "British subject" from the provisions of this Act. Of course, the provisions

of Part II did not in themselves do all that much

apart from recognizing the status of "British

subject".

That status could have some other consequences;

for example, until the repeal of the definition of

"alien" in the MIGRATION ACT, to be a British subject

within the provisions of the former Part II would

mean that the provisions of section 12 could not

apply because one would not fall within the

definition of "alien". There would be other

provisions which also might be relevant; for example,

provisions of the ELECTORAL ACT as to the right to

vote or until the amendments which the Court

considered in the WOOD case as to the right to be

elected to Parliament.

Now, of course, there is a provisio~ as the

WOOD case considere~ that there is a requirement

of Australian citizenship for election to

Parliament and there has been contrary provision

made in the manner which was contemplated by the

CONSTITUTION.

DAWSON J:  But an Australian citizen is a subject of the

Queen by virtue of the oath of allegiance which he

takes upon becoming a citizen or by virtue of his

previous status as a British subject.

MR GRIFFITH:  Your Honour, there was a status of Australian

with by Part III of the Act. That was established citizenship previously in the Act. That was dealt in 1948. Up to that point, of course, Your Honour,

there was the issue that you referred to passing

with my learned friend that there was not a concept
of Australian citizenship and one was dealing with

the question so far as application of immigration

power to British subjects was concerned when there

was no mechanism for British subjects to become

Australian citizens.

That situation ended in 1948, Your Honour, when

British sµ~jects, as much as 9ther persons, were able to become Australian citizens if they chose.

But as British subjects they had other preferred

positions over non-British subjects even if they

were not Australian citizens.

ClTSl/1/ND	81
Nolan

DAWSON J:  I am really only inquiring where do I find my

relationship with the Queen defined?

MR GRIFFITH:  Your Honour, specifically one does not.

One finds that Your Honour is undoubtedly an
Australian citizen by birth - I understand

Your Honour was born in Canberra. If that is the case it would follow, we would submit, as of course that the Queen, in her capacity of Queen of

Australia being the head of State of Australia

that Your Honour would owe, by reason of

Your Honour's birth, allegiance to her.

DAWSON J:  That puzzles me a little too. I do want to take

up time but under section 10, section 10 only

applies to people born in Australia after the

commencement of the Act, is that not right?

MR GRIFFITH:  Yes, Your Honour.

DAWSON J: That does not pick up me, where am I picked up?

And section 25 would pick me up but the Part in

which that is contained is repealed.

MR GRIFFITH:  Your Honour, I am tempted to say there must be a section there somewhere.

(Continued on page 83)

ClTSl/2/ND	82
Nolan

DAWSON J:  I have been searching for it. It is a matter

of some importance.

MR GRIFFITH: 

Your Honour, perhaps we, on this side of the

bar table will keep searching earnestly already,
but, if there is nothing specifically in the Act,

we would submit as a matter of common law that

birth in Australia would make Your Honour an

Australian citizen by birth.  It is a very

interesting question, Your Honour.  Perhaps we

will have to all leave and leave room for the

immigrants.

The remark Your Honour Justice Dawson makes

confirms very much the fact that there is -that the law in respect of Australian citizenship is, in its

history since 1901, a rather complicated one and one

which, in some part, has depended upon developments

external to Australia, as well as the growth of
Australia to its own independent nationhood. If I
may hand to the Court chapter 8 of the second edition

of Ryan's International Law in Australia, published

1984, chapter 8 is a chapter entitled Australian

Nationality and Immigration, written by the present secretary of the Attorney-General's Department,

which conveniently summarizes this course of

development. Up to the time that the author was

writing in 1984, apparently well apprised of the

terms of the AUSTRALIAN CITIZENSHIP AMENDMENT ACT 1984, although it had not yet been introduced,

and that follows the course of the, firstly,

developments in respect of the BRITISH NATIONALITY

AND STATUS OF ALIENS ACT, and other British

legislation.

The course of developments in Canada, for example,

on page 214, the Imperial Conference of 1930 which

recognized that - this is stated on page 215:

A resolution of the Conference stated:

"That it is for each member of the

Commonwealth to define for itself its

own nationals, but that, so far as

possible, those nationals should be

persons possessing the common status,

though it is recognized that local

conditions or other special circumstances,

may from time to time, necessitate

divergencies from this general principles."

At page 216 he ref~~~ to the 1937 Iu~eLial

Conference in South Africa, which concluded towards

the bottom of that page under paragraph (1):

It is for every Member of the British

Commonwealth to decide which persons have

ClT52/l/HS	83
Nolan

with it that definite connexion,

envisaged by paragraph 73 of the Report

of the Operation of Dominion Legislation

1929, which would enable it to recognize

them as members of it community .... "

(Continued on page 85)

ClT52/2/HS	84
Nolan
MR GRIFFITH (continuing):	He refers, on page 217, to the

implementation of the agreements which gave rise

to the Canadian Citizenship Act and the British -
there was a meeting in England in 1947 which

gave rise to the British Act of 1948 and also

the AUSTRALIAN NATIONALITY AND CITIZENSHIP ACT

of 1948. He then refers to factors leading to

the situation which is embraced by the AUSTRALIAN

CITIZENSHIP AMENDMENT ACT and at page 225 he

concludes, as I indicated, in contemplation of

the amendments which were later introduced and
came into force. In the last sentence in the
paragraph continuing from the top of page 225:

If the proposal is linked with changes to the AUSTRALIAN CITIZENSHIP ACT to in

effect alter the definition of "alien"

to mean all persons who are not Australian

citizens, the constitutional authority for

the MIGRATION ACT would thereby be transferred

to the "aliens" power.

Indeed, we would submit that even prior to the

coming into force of the amendments to the AUSTRALIAN CITIZENSHIP AMENDMENT ACT, which, as I have indicated

to the Court, did omit the definition of "alien" from

the AUSTRALIAN CITIZENSHIP ACT, it is still the

case that the amendments effected to the MIGRATION ACT,

in our submission, by the 1983 amendments did have

the effect, as indicated by the author, of

substantially transferring _the constitutional

authority supporting the Act to the aliens power.

That does not mean exclusively, but, we would

submit, substantially.

WILSON J:  But it is .an odd result,. although

perhaps only a transitional on~ in that the

aliens power and the constitutional power with

respect to aliens support the application on the

submission you are making of section 12, as

amended in '84 to the plaintiff at the time when

he was clearly not an alien within the meaning

of the CITIZENSHIP ACT.

MR GRIFFITH: Yes, that is quite so, Your Honour. That anomaly exists, but,we would submit, there is

no difficulty about it because section 5(1) of

the CITIZENSHIP ACT at that time, and indeed

now, that when the definition of "alien" remained

for that period is limited to the definition

being in this Act. It says:

In this Act, unless the contrary intention

apper1rs.

Now, Your Honour, so far as the expression in the

MIGRATION ACT is concerned, Your Honour, one

has a clear indication, that there should not be

CIT53/l/JM	85
Nolan

any reference across to the AUSTRALIAN CITIZENSHIP

ACT because the Act which effected these amendments

specifically repealed the definition of "alien"

in similar terms for the purposes of .the

MIGRATION ACT. None the less, Your Honour's point

is a good one, and Your Honour, possibly that was

an unsatisfactory position to exist for so long.

WILSON J:  And it may raise questions about the sufficiency

of the legislative power with respect to aliens.

MR GRIFFITHS: Well, Your Honour, we hope not. Really,

Your Honour, it is more a product of the problem

that we indicated that it was necessary for the States to anticipate this amendment before this

could be proclaimed. We would submit, Your Honour,

in dealing with the issue of support by the

aliens power the fact that there is a different,

another definition of "alien" for the purposes of
operation of the CITIZENSHIP ACT for a period of
three years is of no consequence when considering

the issue of validity of the MIGRATION ACT itself.

We would submit that in a real sense the

1983 amendments reconstitute the MIGRATION ACT

from expression by reference in respect of

:i.mn:i.grants, which was the form that it was considered

in in POCHI and where the validity of its provisions

by and large tended to be considered by reference

to the immigration power. POCHI was one of the

few cases, and the last one, where there was an

issue of support by the aliens power.

(Continued on page 87)

CITS3/2/JM	86
Nolan
MR GRIFFITH (continuing):	Now, the Act is primarily framed

by reference to citizenship and non-Australian

citizenship. And we would suggest that it is

natural enough that, particularly in relation to

cases concerning British subjects, issues of

validity of the MIGRATION ACT have tended to be

approached from the question of the iillliligration

power and that was supported specifically by

the narrow definition of "alien" in the MIGRATION

ACT which did narrow and exclude from the

definition of "alien", for the purpose of that Act,

British subjects. But, our submission as to that

is that that is not a matter relevant to the

question of power. The statutory exclusions and

limitation of British and Irish subjects and

protected persons, in our submission, were not

reflective of the meaning of the constitutional

power under section 51 in respect of the

naturalization and aliens power.

So that we would submit that the question

of power really is something now to be considered,
as it were, afresh by the Court~ there not, to
this point, being any opportunity for the Court
to consider it because - - -

DAWSON J:  I am sorry, Mr Solicitor, I do not understand

why you say that the CONSTITUTIDN does not

clearly assume that a subject of the Queen is not

an alien?

MR GRIFFITH:	Your Honour, we submit that there is no basis for such assumption; that the provision in the
Act deals with naturalization and aliens. Now - - -

DAWSON J: The CONSTITUTION?

MR GRIFFITH:  Yes, it does, Your Honour. Now, we say,

Your Honour, they are reciprocals, Your Honour.

One has the question of the concept of Australian

citizenship which was not known at the time that	the CONSTITUTION was enacted and came into force
which has now developed. And it is possible under
that, Your Honour, to provide for naturalization
of Australian citizens and - - -

DAWSON J:  How do you overcome ~I mean I just want to know

your answer- how do you overcome section 117 of

the CONSTITUTION?

MR GRIFFITH:  Your Honour, we say section 117 is not concerned

with the definition of "alien" under a wide

plenary power of the sort of section 51. Section 51

is a plenary power for the Coilllilonwealth in respect

of naturalization and aliens. We say in its

normal meaning, that embraces persons who are not

ClT54/l/SR	87	8/6/88
Nolan

citizens of Australia, looking at it now. Now,

Your Honour, that could not have been said in 1901

because we did not have a concept then of

Australian nationality and some of the provisions

that my learned friend referred to are merely,

in our submission, a reflection of that state of
development in respect of the concept of

Australian citizenship. But our submission is

that that says nothing as to the question of how,

when one considers now the operation of section 51

in these areas. We would submit that to exclude,

for example,as.· my learned friend puts it, subjects of

the Queen from the _concept of alien in section 51

is to read in words ot exclusion which are not

there. It is a power in - - -

DAWSON J:  I am just trying to understand the reasoning.

The word "alien" in section 51 must have had some meaning - well,.you could call it connotation or

denotation-as at 1901. That meaning has not

undergone a change. What was that meaning?

(Continued on page 89)

ClT54/2/SR	88	8/6/88
Nolan

MR GRIFFITH:  Your Honour, one could find it, for example,

in the Oxford Dictionary. Perhaps I could hand

up a copy of that definition for Your Honour.

The definition there, Your Honour, is reflective

of the definition which was there, I think,

from 1886 - certainly pre-Federation. When

one goes in the left-hand column to the definition

of "alien" one has:

belonging to another person or place .....
Belonging to another person, place or family

. . . . . Foreign in nature, character, or origin.

Then, further down:

A stranger, a foreigner ..... A resident

foreign in origin and not naturalized - which would seem to be a convenient meaning.

One excluded from (citizenship, privileges

etc) -

we would submit, Your Honour, that is the normal

and natural meaning.

DAWSON J:. In the CONSTITUTION - I do not want to take

this too far but I do want to understand it

and we have to grapple with it. If you had

asked anyone in 1901 who had the merest understanding

of the situation, whether a British subject
could be an alien in Australia, he would have

said "No". But xou may say, "Well, that was

that certain time'.

MR GRIFFITH: Yes, we do, Your Honour. This problem

perhaps touched upon in the WOOD case, Your Honour,

where clearly there were provisions as to

qualification of membership for Parliament which

were derived at a time when the concept of Australian

citizenship was not known and .. perhaps not even
contemplated, Your Honour.	But our submission

is, Your Honour, -that section 51 is not tied

to what might have been contemplated by a person

reading that provision in 1901 but it is a question

of what is the plain meaning of that grant of

power, Your Honour, having regard to the circumstance

that there now is, firstly, Your Honour, an

established status of Australian citizenship

and non-citizenship and, secondly, at the same

time, Your Honour, an erosion, as Sir Harry Gibbs

pointed out in POCHI_almost to the point of elimination

of the concept of this status of British subject .

When one considers the issue of British

subject one has a preliminary problem of considering

whether that means someone as in the case of

the-plaintiff who is a subject of the United Kingdom

ClTSS/1/SDL	89	8/6/88
Nolan

or does it mean the case of a person who is a

subject of some other country of the Commonwealth,

Your Honour, owing allegiance to the Queen?

My learned friend submits the wider meaning.

If that is the correct meaning then, in

our submission, one would have a position that

the issue of whether or not a person was an

alien for the purpose of section 51 w0uld be

determined by the terms of a foreign law. For

example, whether or not the law of Fiji or India

provided for the subjects or citizens of those

countries to owe allegiance to the Queen as - - -

DEANE J: Mr Solicitor, while you are on that, could I take

you to section 7(2) of the AUSTRALIAN CITIZENSHIP

ACT as it was in 1984, which is the list of

countries. If it is not too much trouble, would

it be convenient to let at least me have .any

additional countries·which were at that time

members of the Commonwealth and also which of

those countries owed allegiance to the Queen.

I not ice quite a lot of them did and quite a

lot of them did not.

MR GRIFFITH:  Yes, Your Honour, could we make that information

available for the Court after today?

DEANE J:  Yes. I was not suggesting you would know it.

MR GRIFFITH:  The answer is I do not, Your Honour, but

we will seek that information. Of course, POCHI

itself was concerned about late listing of one

or two countries on this list.

MASON CJ:	I think we would all appreciate that information
when you obtain it, Mr Solicitor.

MR GRIFFITH: Yes, Your Honour, of course.

(Continued on page 91)

ClTSS/2/SDL	90	8/6/88
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MR GRIFFITH:	Your Honour, I am informed that Your Honour became an Australian citizen under section 25(l)(a)
of the AUSTRALIAN CITIZENSHIP ACT.

DAWSON J: That is in Part IV which has been repealed.

MR GRIFFITH: Yes, Your Honour, but I am informed that

section 39(20) of the AUSTRALIAN CITIZENSHIP

AMENDMENT ACT 1984 ensures that the repeal of that

does not affect Your Honour's status.

DAWSON J:	Thank you.
MR GRIFFITH:	As to Your Honour's point as to the meaning of

"alien", of course, one need go no further than

Quick and Carran to see that in 1901 - this is

page 599 - that the author regarded in English law

an "alien" as being "a person who is not a

British subject". But our submission is,

Your Honour, that the correct approach in considering

that issue now is that adopted by His Honour

Sir Harry Gibbs in the POCHI case. · My learned friend

has already read the relevant paragraph to the Court

but my friend there read the parts of His Honour's

judgment where His Honour said that it must depend

on the law of Australia as to what is the meaning

of "alien". He said that - this is at page 109,

151 CLR. His Honour made the point that:

In recent times the status of a British subject has lost much of its former significance to

Australian citizens. It has ceased to carry

with it practical advantages ..... The

allegiance which Australians owe to Her Majesty

is owed not as British subjects but as subjects

of the Queen of Australia. Now, once the

BRITISH NATIONALITY ACT 1981 (UK) has come into

force, the principle that every Commonwealth

citizen is a British subject will have finally

been abandoned, and the status of British

subject will be restricted to a narrow group.

If English law governed the question who are

aliens withins 5l(xix), almost all Australian

citizens, born in Australia, would in future

be aliens within that provision.	The absurdity
of such a result would be manifest.	The

meaning of "aliens" in the CONSTITUTION cannot

depend on the law of England. It must depend
on the law of Australia. It is true that

s Sl(xix) presents some difficulties. Clearly,

the Parliament cannot, simply by giving its

own definition of "alien", expand the power

under s 51(xix) to include persons who could

not possibly answer the description of "aliens"

in the ordinary understanding of the word.

This question was not fully explored in the

ClT56/l/ND	91
Nolan

present case, and it is unnecessary to

deal with it. However, the Parliament can in my opinion treat as an alien any person

who was born outside Australia, whose

parents were not Australians, and who has

not been naturalized as an Australian.	The
plaintiff's argument is based on a false
assumption and must fail.

With respect, Your Honour, we accept the approach

of Sir Harry Gibbs as to the breadth of the aliens

power considering it now in the circumstances,

Your Honour, that the whole concept of "British

subject" and its relationship to the Commonwealth

of Australia, the establishment of the independent
nationhood of Australia as an international person,

the establishment of the status of citizenship, an

Australian citizenship, has the result that a meaning

which undoubtedly would have been given in 1901,

in our submission, is not the ar,propriate meaning

to be given to that expression 'having regard to

Australia as an independent nation" with reference

to provisions for citizenship and with reference

to provision by legislation of access to the

country by persons whether they be described by

reference to aliens or be described by reference

to being or not being British subjects.

(Continued on page 93)

ClT56/2/ND	92
Nolan
DAWSON J: And, as a result,	the immigration power as a

legislative power	slides into the background
and the power with	respect to aliens comes into
the forefront.

MR GRIFFITH:	Yes, Your Honour, that would seem to be the case, that there has been a transition across
and one, we would submit, can pick that up from
the thrust of the amendments to which I have
referred.

DAWSON J: And, in fact, on your argument, you would never

have resort - well, perhaps, I should not say that

but you would seldom have to have resort to the

immigration power.

MR GRIFFITH:  Your Honour, you might in, say, cases such as

the HENRY case where it was established there,

that one could make provision in respect to persons

who had been immigrants for their further protection

and one could imagine that there could be either

specific cases such as there are - - -

DAWSON J: Yes, I should have defined that. In a context

such as deportation and the like, what I have said

would be correct.

MR GRIFFITH: Well, Your Honour, probably unnecessary to have

reliance on it. We would say that one could rely

to a considerable extent upon both heads of power

and, as Sir Harry Gibbs pointed out, I think it was,

in the POCHI case, that there are other constitutional

provisions, he said, at page 106:

Power to enact laws for the deportation

of persons other than aliens is conferred

by other paragraphs of s. 51, particularly

pars (vi) and (xxvii), and possibly

par. (xxix), but it is unnecessary to invoke

those powers in the present case.

We would add also, Your Honour, although probably

it is not apposite here, a reference to_

paragraph (xxviii), the influx of criminals out,

I think we are prepared to concede for the purposes

of this case that the power is limited in operation

to persons who are clearly criminals before they

come here.

WILSON J:  Mr Solicitor, would you rely on the immigration

power in addition to the aliens power as supporting

the application of section 12 to the plaintiff?

MR GRIFFITH: Oh yes, Your Honour. Yes, we do.

ClT57/l/SH	93	8/6/88
Nolan

WILSON J: Notwithstanding the length of time he was here

and the provisions of the MIGRATION ACT at an

earlier time.

MR GRIFFITH: Well, yes, Your Honour, there are two issues

there. We would say, perhaps, if I can anticipate

what we intend to say, that so far as length of

time is concerned, really, there is no evidence

before the Court whatsoever as to the issue of
absorption other than that the Court is aware that
up~to the time of service of the deportation order,
the plaintiff was in prison for some 12 years but

there is no other information to show absorption.

WILSON J: There is an assertion of permanent residence in the

statement of claim.	I do not know whether that takes
it very far.

MR GRIFFITH: Well, Your Honour, Mr Justice Deane, in a case

called KUSWARDANA that I intend to refer to, indicated

that absorption is a question of fact and we would

submit that if one looked at the Act as it was before

the amendments that would remain an issue of fact.

It is our submission that, as amended, that issue of fact is more or less removed from consideration

because, we submit, now there is a legislative

statement of a condition on absorption and that is,

in our submission, the acquisition of Australian

citizenship and that becomes the legislative term

for absorption.

WILSON J: Displaces a pre-existing fact, in your submission,

assuming that he had been absorbed.

MR GRIFFITH:  Assuming he had been absorbed, Your Honour, we

submit that it is still within the power of iIImligration

to replace that. To that issue, we join issue ~ith

the approach of Mr Justice Williams which my

learned friend relied upon. I think Your Honour

is taking me ahead a bit but that is our approach

to it.

WILSON J: Yes.

MR GRIFFITH:  Of course, as my learned friend conceded, if the

aliens power is held to apply to the plaintiff, well,
then, it is not necessary to go on exhaustively to

consider the issue of the iIImligration power.

WILSON J: Yes, well, that is why I asked the question.

MR GRIFFITH: As we do see it, Your Honour, there is occasion -

perh2rr this case is n8t the ccc~sion - to reconsider

the general issue as to the approach to absorption,

having regard to the operation of the iIImligration

power, because when one has a provision such as one now

ClT57/2/SH 8/6/88

Nolan (Continued on pi\e 940 GRIFFITH, QC

has providing, in effect, for a statutory absorption

to be recognized by taking citizenship, in our

submission it is no longer necessary or appropriate

for the Court to seek to limit the reach of the

inunigration power, particularly in respect of the

now closed category of British subjects by reference

to issues of absorption.

(Continued on page 95)

ClTS7/3/SH 94A 8/6/88

Nolan

MR GRIFFITH (continuing):  That was an appropriate measure,

Your Honour, absent any particular statutory

condition providing for absorption. We would submit

that section 12 certainly would apply to the plaintiff

were he now to arrive, or be within 10 years of

arrival, within the operation also of section 14A,

as a British subject, and we submit that in that

regard section 12 is supported by both the aliens

and by the immigration powers. We do that

particularly by reference to what Sir Harry Gibbs

said in the POCHI case, and we submit that it must depend upon the law of Australia as to what is the appropriate meaning to be given to the issue of

British subjects and to the question of aliens power,

and in this aspect we submit that section 51 should

be read applying the canon of construction enunciated
by Justice Connor in the JUMBUNNA case - I do not

think there is any need for me to refer the Court

to that, other than to say that the Court did accept

that in the AUSTRALIAN SOCIAL WELFARE UNION CASE,

153 CLR 297, at page 314.

But we submit that this approach requires a

broad interpretation in keeping with the growth and

status of Australia as an independent nation. This

growth is summarized by the chapter 8 of the history

of the growth of Australian citizenship that we have

handed to the Court and is also, we would submit,

something consistent with the Oxford dictionary

definition meaning. I did hand to the Court the

current definition, but I should indicate in the

Oxford dictionary, 1888, volume 1, at page 218 to

page 219 the definition of "alien" included: of a foreign nation and allegience or

one who is the subject of another country

than that in which he resides, a resident

foreign in origin and not naturalised

whose allegiance is thus due to a foreign

State.

We would submit that that is wide enough to include

a concept of a British subject not being regarded

or being regarded as an alien for the purpose of

section 51(xxix). So that, as we have already put

to the Court, we submit that the definition of

"non-citizen" in the MIGRATION AMENDMENT ACT 1983,

meaning a person who is not an Australian citizen, ties

very much with what we submit is the meaning of

alien as a person who is admitted or seeking

admission to Australia who is not an Australian

citizen. That is loosely equivalent, in our submission,

to what His Honour the then Chief Justice said in

POCHI, that:

Parliament can in my opinion treat as an

alien any person who was born outside

ClT58/l/HS	95	8/6/88
Nolan

Australia, whose parents were not

Australian, and who has not been

naturalized as an Australian.

The expression "naturalization and aliens" does

appear in section 51, was drawn from the power
of the Dominion Parliament under section 91(25)

of what was then the BRITISH NORTH AMERICA ACT

and in CUNNINGHAM V TOMEY HOMMA, (1903) AC page 156

to page 157, the Judicial Committee in 1903 held

that:

it is for the Dominion to determine

what shall constitute either the one

or the other -

as to what would constitute aliens.

(Continued on page 97)

ClT58/2/HS	96
Nolan

MR GRIFFITH (continuing): In 1914 in Canada, it was held

that the power extended to authorize an immigration

law which provided for the exclusion of British

subjects - that is a decision of the Court of Appeal
in British Columbia, RE IMMIGRATION AND MUNSHI SINGH,

(1914) 6 WWR 1347, in particular at pages 1351,

1366 and 1375. One finds in this case, perhaps,

similarly as in some of the earlier cases in this

Cour~ there certainly is a specific contemplation
that race can be a matter to be taken into account 1n
these issues of immigration and none of the Court
of Appeal had any difficulty in accepting that

the status of "British subject" was not one that

carried any rights having regard to the power confirmed

by the BRITISH NORTH AMERICA ACT. So, for example,

Justice of Appeal McPhillips, at page 1375, said:

The IMMIGRATION ACT is, as has been previously

pointed out, an Act passed in pursuance of

the power conferred by THE BRITISH NORTH

AMERICA ACT, and applies to all persons coming

to Canada, irrespective of race or nationality,

and in my opinion the British subject has

no higher right than the alien in coming to

the shores of Canada, nor does the Parliament
of Canada in its enactment differentiate in
any way; the only privileged persons are those

who in accordance with natural justice should

be allowed free entry by any nation, being

her own Canadian citizens and persons who

have Canadian domicile.. Those are permitted

to land in Canada as a matter of right.

And	there are similar statements at the other references
to which I have given the Court.	We submit that,

as also noted by Sir Harry Gibbs in the POCHI case

at pages 110 to 111, it is not the case that an
alien is liable for deportation only so long as

he is reached by the immigration power. Sir Harry,

at pagelll held that:

acquisition by an alien of Australian citizenship

should be marked by a formal act, and by an
acknowledgement of allegiance to the sovereign
of Australia.

And it is for this that the AUSTRALIAN CITIZENSHIP ACT

provides. My learned friend referred to the amended

and then it was ·again amended in 1986 to provide

for the oath of allegiance to the Queen of Australia.

But now, in its present form, the oath in schedule 2 -

the one in schedule 3 to which my learned friend

referred the Court has been repealed - but the
oath in schedule 2 does not now require renunciation
of other allegiance but none the less the

acknowledgements of allegiance to the Queen of

ClT59/l/AC	97	8/6/88
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Australia is included. So that, we submit the status of an alien cannot be lost by arguments

of absorption into the Australian community and

this is a matter, again as Sir Harry pointed out

in POCHI, where that principle is in accordance

with the common law position.

We submit that there is no difficulty about

the exercise of the power, the aliens power, so
as to adjust the terms and conditions upon which

an alien - we mean by this non-citizen - is entitled

to remain in Australia. As we have see~ prior

to 1983 there was discrimination in the laws

between British subjects and non-British subjects.

Now that discrimination has been removed and we

would submit in removing that discrimination the

provisions of the MIGRATION ACT coincide more with

the constitutional power in respect of aliens whilst,

at the same time, applying a uniform regime.

The effect of the 1983 amendments is that

the position of advantage of British subjects which
formerly existed is eroded somewhat and the position

of aliens is improved and now for the reasons

to which I have taken the Court there is equal

treatment of both categories.

(Continued on page 99)

ClT59/2/AC	98	8/6/88
Nolan

~ GRIFFITH (continuing):  So, to a real extent as we see,

we submit that the 1983 amendments remove as an

issue inquiry as to whether or not Nolan might

be regarded as an immigrant absorbed in his

community. We submit that on the pleading, once

it is determined that he is an alien within the

reach of section 5l(xix) then there, in our

submission, can be no issue that that provision

and the provisions of section 12 and section 14A

validly apply to him. Now that, of course, is

conditional upon the Court accepting our submission

that a British subject does fall within the

aliens power. If that is rejected by the Court,

well then the other support which we would seek for

the provisions of section 12 as they apply to

British subjects is the immigration power. Now

once more in respect of that, we would submit

that there can be no issue of validity as to

the section itself. We would submit that for

British subjects and non-British subjects, the

immigration power is sufficient to support a

provision such as section 12 with the addition of

section 14A and making provision for the possibility

of deportation in respect of particular criminal
convictions.

So that if one looked at it at the time of

the 1983 amendments certainly, we would submit
that, and this was really a matter best summarized
by Your Honour Justice Deane in the KUSWARDANA case,

that is KUSWARDANA V MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS, (1981) 35 ALR 186, at page 203.

Your Honour, at page 202 and 203, in giving judgment

in the Full Court of the Federal Court, we would
accept that it is expressing the position as at
the time of the 1983 amendments, that as it was

then seen that Parliament has power under the

immigration power to make laws which control or

prevent absorption into the community of persons

who enter Australia. These may provide for a

period for which a person is liable to be deported,

reasons Parliament may prescribe, such as was	either at complete discretion or for whatever	the case in the old section 12 and 13 and in the present section 12. Your Honour there cites
MACFARLANE and KOON WING LAU V CALWELL.

The second proposition is that during such

period as may be prescribed the person concerned will

be incapable of establishing membership of the

Australian community. Your Honour then went on to

say that the ultimate finding that a person has become

established as a member of the Australian community
would be a finding of fact and will c~ly be op~~.

Your Honour said:

ClT60/l/SR	99	~ GRIFFITH, QC 8/6/88
Nolan

if the person in question has successfully

passed through any valid probationary
period which the Parliament has laid down

as the prerequisite of assimilation and

is satisfied that any conditions preventing

absorption into the Australian community
to which the Parliament has validly

subjected his entry.

And, accordingly at page 203, Your Honour indicated

that during the five year period then provided:

an immigrant must remain an immigrant
and is incapable of becoming established
as a member of the Australian community.

Section 12 now establishes a 10 year period and we submit that there is no difficulty about accepting such a limitation upon absorption which by reference to a period of 10 years not being

years of imprisonment can operate as a bar to

absorption in the Australian community.

(Continued on page 101)

ClT60/2/SR	100	8/6/88
Nolan

MR GRIFFITH (continuing): We make the point that in the

demurrer book there is no evidence to find whether

or not Nolan became established as a member of the

Australian community. Clearly he has had at

least 12 years as a member of the gaol community

within Australia, but our submission is that that

is a matter of no relevance, having regard to

an expression of what might be meant as to being

absorbed within the Australian community as a

whole. Indeed, it would indicate the antithesis

of absorption. To extend my learned friend's

example, if, for example, a person stepped fresh

off the boat and stabbed a policeman in the neck

and then served 30 years imprisonment, one cannot

for a moment, we submit, accept that it could be
put at the end of the term of imprisonment in

30 years it can be put that the person thereupon

must be regarded at least by that time to have

been absorbed in the Australian community.

In the KWOK KWAN LEE case, the QUEEN V FORBES,

(1971) 124 CLR 168 at 174, the then Chief Justice

made the point that dealing then with the five
year period, at the top of page 174 he said:

He does not in my opinion automatically cease to be an immigrant upon the expiry of those five years.

It would seem,as Mr Justice Deane indicated,

it is a matter of evidence.

Now, we submit that during the period,

up to the time of absorption, there can be no

issue at all, and I do not think that my learned

friend contended that there was, as to the operation

of legislative and constitutional power to alter

conditions which remain unfulfilled as a l)ar to

absorption. So that, we would submit, if Nolan

in 1984 were not established as being absorbed in

the Australian community, and we will make the

point that there is nothing in the statementt of

claim which goes to establish that, then - - -

WILSON J: Well, Mr Solicitor, does not the assertion in

the statement of claim bind you for the purposes

of the demurrer?

MR GRIFFITH: Well, Your Honour, we say the assertion is

merely he was here.

WILSON J:  And then had permanent intention to - I see,

you are taking absorption to mean more tha-n an

intended domicile?

MR GRIFFITH:  Yes, Your Honour. It is a question of fact,

Your·Honour, and indeed, there is very little

authority in respect of the issue of what is

CIT61/l/JM	101
Nolan

absorption, but from what Chief Justice Barwick

said in FORBES, that I just referred to, and,

we would accept, very much the approach of

Justice Deane, it would seem to be a matter of

evidence. Now, Your Honour, possibly it is

appropriate for the Court in this case to go on

and consider the matter further on the assumption

that he has been absorbed. So that if that remained

the outstanding issue that could be one of the matters remitted to the Federal Court with the

remaining issue as to natural justic~.

WILSON J: If it depends on evidence, then it would never

be shown for the purposes of the demurrer.

MR GRIFFITH: Well, Your Honour, it was a question really of

what we were demurring to. Certainly on the

face of the demurrer, Your Honour, there would

seem to be two issues: one, the point that the

aliens power could not apply to a British subject;

and the second one, Your Honour, was the argument

as to retrospective operation in respect of Nolan.

Now, those two identified issues seem to have

broadened somewhat, Your Honour, and brought this

matter into relevance when, on the face of the

pleading, they might not have been thought

relevant. Of course, Your Honour, any matter

which is - - -

DEANE J: It would not need much, Mr Solicitor, to read an

allegation of absorption into the first sentence

of paragraph 9 of the statement of claim. I

do not know where that would lead in terms of

the demurrer.

MR GRIFFITH: Well, Your Honour, the Court may make such

inferences as it regards. fairly open. Well, Your

Honour, in essence, we do not regard this case as concerning the issue of fact and it is

quite appropriate, Your Honour - I was going

issues on the basis that let it be assumed he	to submit to the Court to consider consequent
is absorbed and that matter of fact, as we
suggest, might be later considered. It is not put as a smart bar at this stage, Your Honour.

CIT61/2/JM	102
Nolan
MR GRIFFITH (continuing):	So, Your Honour, I was just about

to say, "If it be assumed that Nolan was absorbed at the time of the amendment", then it gets a bit

difficult to consider his position because we can

only consider it further on the assumption that the

aliens power does not apply to British subjects

because if it does then that is already the end of
the matter, so that it is a somewhat, in our
submission, a natural examination of that issue.

But this question of absorption seems, in our

submission, to point towards a difference in
approach of Chief Justice Latham in the KOON WING

LAU V CALWELL, 80 CLR 533, in particular at page 561

to page 566 and the judgment of Justice Williams

at page 589. I will not read at length what

Chief Justice Latham says in those paragraphs but

what he does, over those pages, is to discuss and

analyse EX PARTE WALSH & JOHNSON; IN RE YATES,

37 CLR 36, and on his analysis WALSH does not support

the narrow view as that adopted by Justice Williams.

I say on "his analysis" because I think Your Honour

the Chief Justice in the HENRY case does refer to

WALSH & JOHNSON as being authority which indicates

the narrower view was adopted. But Justice Starke
took the view that it is not authority for the narrow
view and, quite specifically, these three passages

over those pages to which I have referred the Court,

specifically contemplates that there may be

legislation retrospective in operation to the extent

of removing what may be an established status and

the point the Chief Justice there makes is that one

Parliament cannot bind another Parliament.

The fact that one parliament may grant permanent

residential status to a non-Australian citizen does

not prevent another parliament from removing that.

So that he is quite specific in the recognition of

the extent of legislative power as it were to move
the goal post, and I suppose to take the sporting

analogy one step further, after the goal has been

And it is one that is supported by Mr Justice Rich	kicked. That is the view of Chief Justice Latham.	and also supported by Justice Starke in RV MacFARLANE,
(1923) 32 CLR 518, at page 581 where His Honour seems
to contemplate retrosp~ctive operation.

We submit that, in principle, there is no reason

why a non-Australian citizen subject to the immigration

power should not be subject to the same principles

of operation in respect of plenary powers vested

by section 51, namely, that retrospective legislation

can go to the detriment of that person, the position

previously provided for. We would assume my learned

friend would not deny legislative power to improve

the position of someone already established by the

ClT62/l/ND	103
Nolan

operation of previous legislation and our submission

is the reciprocal is equally true and we submit that

the question for validity should be one on the

ordinary principles of whether the law is one in

respect of the process of immigration. Whether or

not it might be described as a law about
immigrants, of course, is by the way as Your Honour

the Chief Justice referred to in HENRY's case.

So that one then can come to a position, in

our submission, in this case really by corning through

two avenues to come to the same result. If a view

is taken that the aliens power includes British

subjects then, in our submission, it is no longer

appropriate to consider whether there are limitations

on the operation of the immigration power because

the aliens power, whether or not there are such

limitations, is more than sufficient to cover the

field of operation which is challenged by the

plaintiff in this case.

So that on that approach, we would submit, there

is no occasion for the Court to seek to go down the

byways that my learned friend Mr Castan went in the

alternative in seeking to limit the operation of

the immigration power. Given that the MIGRATION

ACT is now structured so as to be primarily supported by the aliens power, we would submit that one is

now in a position where there seems to be very little,

or, we would say, no work to be done by retention

of the concept of absorption into the community as

a limitation of the immigration power.

(Continued on page 105)

ClT62/2/ND	104
Nolan
MR GRIFFITH (continuing):	The aliens power will do all

the work in relation to individuals who might

be regarded as also within the immigration power

and although in POCHI members of the Court accepted

in a general way the concept of absorption into

the community as being a limit on the immigration

power that, of course, was in the context of

legislation which still provided for separate

treatment of British citizens by reference to the

inunigration power, and HENRY's case is an example

of that situation.

Looking at the matter from the point of view of the immigration power on its own, the alternative

approach which we would suggest to the Court is that

the development to maturity of the concept of

Australian citizenship which was not in existence

in 1901, and of course first recognized in 1948,

and now provided for in the manner we have seen

which does not discriminate between British subjects

and non-British subjects in respect of citizenship

and in respect of provisions for deportation, we

submit that this has removed the basis for the

doctrine of absorption, and perhaps if I could again refer the Court to the Brazil article as establishing the historical context of this position.

Possibly it is an issue for anther day but

we submit that there are good reasons now for the

Court to conclude that it is not now appropriate or
necessary for the Court to recognize a limitation on
the reach of the inunigration power, separate from
the aliens power, so far as deportation is concerned.

So that,we would submit,the sort of approach which

was appropriate in ex parte HENRY at a time prior to

the amendments to the legislation that were referred

to is not now necessary because British subjects have

no special status in respect of the MIGRATION ACT.

They are not entitled to rights of permanent residence

independent of rights in respect of being either

citizens or non-citizens and we would submit that there

is now a legislative expression as to the condition

upon which the right permanently to remain is to l:e

determined and we would assimilate that to the right

which formerly might be regarded as arising on the

completion of the absorption process, absent some

legislative provision making a definite term and

provision for that right.

So that with the establishment of the

non-Australian citizenship, or non-citizenship, or
Australian citizenship as the determining issue,

we submit that it is no longer appropriate to

considAr that there is a limit on the re8cb of
the inunigration power by reference to this factual

matter of absorption. It is not a case of saying

"once an inunigrant always an inunigrant" - the approach

adopted by Justice Isaacs in, for example,

ClT63/l/HS	105
Nolan

RV MACFARLANE, 32 CLR 555. At that time,

of course, it was not a provision for the end

of the process by acquiring Australian citizenship

and perhaps it is appropriate to look again at that

line of approach but not on the basis "once an

immigrant always an immigrant", but once an

immigrant until one either leaves the country or

becomes an Australian citizen.

(Continued on page 107)

ClT63/2/HS	106
Nolan
MR GRIFFITH (continuing):	When one becomes an Australian

citizen we submit that the structure of the legislation is to accept that as being the statutory condition for absorption into the

Australian community. Of course, if there was

citizenship then provisions such as the reworked

section 12 that applies to aliens not discriminating

between British subjects and non-British subjects

would not apply. That section can be removed

in its operation either by becoming an Australian

citizen or by effluxion of the period calculated

pursuant to section 12 and section 14A.

This view of "once an immigrant always an immigrant" ran through many of the early

cases as well as Justice Isaacs in MACFARLANE.

It was an approach accepted by Justice Starke

at page 581 and 582 in MACFARLANE. It was repeated

again by Justice Isaacs in EX PARTE WALSH AND

JOHNSON at page - - -

MASON CJ: There really is not an issue between you and

Mr Castanon this aspect of the case, is there?

MR GRIFFITH:  No, Your Honour. What I am seeking to do,

Your Honour, is to invite the Court to review this issue of absorption from the point where

it rested in HENRY and express the view that

the legislation as ·it now stands does not call

for the application of such a concept.

MASON CJ: The legislation as it now stands may not but

are you asking us to review what the Court has

said.about the content of the immigration power?

MR GRIFFITH:	Your Honour, in as much as it is necessary for the Court to become involved in the immigration
power in connection with the plaintiff's claim
and on the demurrer we submit, Your Honour,
that the Court should do so from the approach
that we submit the question after the 1984 amendments
is no longer one of the reach of the immigration power.

MASON CJ: That may be so. It may not be a question of

the reach of the immigration power but it is

another thing to say that in so far as the

immigration power is a necessary prop of support,
that we should review what the Court has said
about the content of the immigration power.

You ·seem to be running the two things together and I am not clear that yow are keeping them:

separate.

MR GRIFFITH:  Your Honour, one problem is that it depends

the extent to which the Court accepts, more

or less, the trail of my learned friend's argument,

in that one might get to the point.

ClT64/l/SDL	107	8/6/88
Nolan

My learned friend's first contention on this

aspect, Your Honour, is that there can be no

issue but that there has been absorption into

the community. Our ·submission is that for

the purposes of the immigration power the Court

should take the view that there is now no test

of absorption other than satisfying the statutory

condition as to becoming a citizen. At that

point, Your Honour, the issue would seem to

meet my learned friend's argument.

MASON CJ:	Yes.
MR GRIFFITH:	We would see this as a matter to be addressed

by the Court. Possibly, Your Honour, the Court

none the less can resolve the issue of the plaintiff's claim as to the validity of the

sections without determining tha~. That is

really a matter of choice for the Court.

WILSON J: You say it is a simple question: if a person

is an immigrant, comes to this country and does

not bother to take out citizenship, he is always

an immigrant?

MR GRIFFITH:	Yes, Your Honour, after the 1984 amendments and they apply to him because he is here as
a non-citizen.
WILSON J:	And ·nothing the Court has said in earlier cases,
when the law was different, changes that?
MR GRIFFITH:	Yes, that puts it bluntly, yes, Your Honour.

WILSON J: That is what you say?

MR GRIFFITH:  Yes. And we say, Your Honour, one cannot

say that one has already escaped because our

submission is it is a plenary power. It is

one that Parliament can provide:	"These are
xour rights now", and at some later date provide:

'These are your rights at some later time.

They are either better or worse than the ones

that you had."

(Continued on page 109)

ClT64/2/SDL	108	8/6/88
Nolan

MR GRIFFITH (continuing):  So that, in that way, we say it

is not a case of	saying, "It is too late. I got
through the door	and away in 1972 or some earlier
time - - -

WILSON J: It comes perilously close to defining an innnigrant

for the purposes of determining the extent of the

power.

MR GRIFFITH: Well, Your Honour, that is not intended. It is

a question of exercise to the fullest extent of the

question of the condition upon which one may be

regarded as absorbed in the community. Now, it is

clear, Your Honour, up to 1984 that power had not

been exercised. There was not even a definition

of innnigrant in the Act. There was no definition

of this concept of absorption. There were several

sections - as we pointed out, section 13 was of

ambulatory operation. It was not limited to five
years. It was offences committed within five years

and then other provisions dealing with aliens with

no time limit. The Act did not mark out a firm,

clear regime under which a condition was provided

by the legislature as to absorption. Now, that,

in our submission, has been changed, deliberately

changed, by the 1984 amendments and our submission

is that, so far as the plaintiff is concerned, it

is sufficient for us to say he, at that time, was

a non-citizen and that Parliament, therefore, in our

submission, has power to improve his position as a

non-citizen or to decrease his position, subject to

the non-discriminatory operation of section. 12 ~nd, of course, it is only by reason of another peculiar

fact, namely, that he has been in prison for a term

of almost 12 years of his 18 years up to the time of
the deportation order, that that amended provision
applies but that is because of the facts, Your Honour,

not because of the terms of the section.

our submission, is of no consequence so far as the So that the fact of being here for 18 years, in

issue of the power of the legislature to provide

that provision is concerned.

GAUDRON J:  Mr Solicitor, what you say carries the implication

that, subject to not having engaged in activities

which may lead to deportation, citizenship must be

a right at the end of 10 years.

MR GRIFFITH:  Your Honour, it is subject to the provisions of

the Act.

GAUDRON J:  Well - that is right. So 0'1'.'1.0 c,n,1,ld h:'..ve citizenship

refused notwithstanding that one had not engaged in

any activity that might result in deportation,

notwithstanding your application and thus forever be

an immigrant regardless of the extent to which you

had become absorbed in the community.

ClT65/l/SH	109	8/6/88
Nolan

MR GRIFFITH:  Yes, Your Honour, we would submit, of course.

One can become a citizen before a five or 10 year period. One can become a citizen

almost at once.

GAUDRON J:  But there is no right to it, is there?

MR GRIFFITH: No, there is not, Your Honour. That is

something for the legislature to control, in

our submission, whether you came here permanently

or not; whether you can stay indefinitely, or

for some -

GAUDRON J:  But your argument really must involve a very

grave departure from what is thought to have

been involved in innnigration hitherto.

MR GRIFFITH:  Your Honour, perhaps if I could take issue

on the adjective "grave". We would say, Your Honour,	it is not so much a "grave", but it is a matter of
a reformulation. So for the first time the legislature sought to occupy the field by defining
the criteria for absorption. Now, up to this
point, Your Honour, the Court started, we would
submit, an examination with no parameter, and at the time when there was no concept of Australian
citzenship, or any relevant provision in the Act,
the issue of how to deal with British subjects
who were here permanently and there was no
statutory provision to embrace their position of
alleged absorption into the connnunity. Your Honour,
when one looks at the authorities, it was with
that issue that the Court was concerned.

Now, the short submission we wish to make,

Your Honour, is that that situation has now been removed. We submit, Your Honour, that it is not

now appropriate for the Court itself to fit in

by applying a doctrine appropriate for a time

when there was an open-ended position which

required soma provision for finality, to work as a gloss to restrict constitutional power.

GAUDRON J:	The constitutional power, you say, is to deport at any time, for any reason, anyone who
has not got Australian citizenship, whether or
not they have applied for it.and regardless of the reasons it has been rejected.

(Continued on page 111)

CIT66/l/JM	110
Nolan
MR GRIFFITH:	Your Honour, perhaps I can put it another way,

Mr Justice Williams, in the passage that my learned

friend referred to when one turns over to page 590,

I think, went on to say that the immigration power

is limited to provisions dealing with provision
for the absorption into the community.

Now, Your Honour, we take issue with that. We say, Your Honour, that the immigration power can deal with persons so long as they are not

Australian subjects and that they can be admitted

pursuant to a legislative scheme which gives no

permanent right for them to stay here and such

legislation, we submit, is valid under the

immigrations power.

GAUDRON J:	Yes, I understand your submisssion.
MR GRIFFITH:	I think, Your Honours, I have said more than

enough to indicate why it is that we see this issue as being one that possibly arises for determination

in this case or, alternatively, is one for later
consideration in another case but it does seem
that, in our submission, it is necessary for fresh

consideration of these matters by reason of the

reconstitution of the basis of the MIGRATION ACT

and in a subsidiary way, although that does not

really arise here, having regard to the reflective

amendments in the AUSTRALIAN CITIZENSHIP ACT.

Perhaps the last point I want to make about

this is that if, indeed, it is the case that the

Court accepts that the plaintiff has removed himself

from the immigration power prior to the enactment

of section 12, we would submit that that has no

effect on validity; it may produce a position advantage

for the plaintiff in that it could be held that section 12 does not validly apply to him but in

our submission there can be no difficulty in the

normal way as was applied by some members of the Court in the HENRY case of applying section 15A	so as to construe it as applying to non-citizens
within the class to whom it can validly apply.

Your Honours, I notice the time. I have

very little more to say, I do not know how long

my learned friend - my learned friend says five or

10 minutes for reply.

(Continued on page 112)

ClT67/l/AC	111	8/6/88
Nolan

MR GRIFFITH (continuing):  My learned friend's submissions

referred, of course, to various sections of the

CONSTITUTION and perhaps we have indicated

sufficiently our response to that in seeking to

answer Justice Dawson's questions in respect of the

relevance of those sections. We submit that

questions such as the meaning of 34(ii) and 44(i)

are quite separate issues and, similarly, the meaning

of section 117 in the context that these matters
are, in our submission, to be regarded, by reference

to acceptance, that there is a Queen of Australia

not an indivisible Queen of all her realms and

dominions.

But this is a fact that has been accepted even

in England. Lord Justice May in REG V FOREIGN

SECRETARY: EX PARTE THE INDIAN ASSOCIATION, ·

(1982) 1 QB 892, at page 928 said:

it is now a truism that in matters of law and

government the Queen of the· United Kingdom,

for example, is entirely independent and

distinct from the Queen of Canada.

And we submit that it is not necessary for us to

really go to England to establish in this Court that

fact. The concept of "British subject", of course,

or subject of the Queen is now not recognized by
the MIGRATION ACT or by, indeed, any Australian

legislation. It has been excluded by the

CITIZENSHIP ACT although, as we have indicated, our

submission is the fact that the CITIZENSHIP ACT

amendments did not come into force, we submit, is

of no detrimental consequence in regard to the
operation of the MIGRATION ACT as it stood in 1985.

Dealing with my learned friend's alternative arguments in respect of the constitutional facts, paragraph 17 or 18, we submit that the power of the

Court to make conditions in respect of absorption

under the immigration power is not limited to making

conditions which have to be satisfied during such

time as a matter of fact apart from those provisions
the person might assert that he was assimilated

because the assertion in paragraph 17, in our
submission, cannot be accepted as establishing that
the time of factual absorption is the furtherest

reach of the immigration power and really, for the

reasons stated by Your Honour Justice Deane in

KUSWARDANA.

(Continued on page 113)

ClT68/l/ND	112	MR,GRLFFITH, QC 8/6/88
Nolan

MR GRIFFITH (continuing):  On the question of the 10 year

period being extended indefinitely in paragraph 18

raised by my learned friend, we have already

referred to the terms of the old section 13 which

were not limited to five years and, in our submission,

there can be no difficulty about a provision which

has regard to serious criminal conduct on a

continuing basis, as is the combined scheme of

section 12 and section 14A. As to his further

alternative submission that Parliament has no

power to pass laws deeming a person not to have
been absorbed, if that person has in fact been

absorbed, we would submit that that is covered by

our previous submission in answer to the last

contention but one of my learned friend.

As to his last submission on this question of

immigration power relying on Justice Higgins, we
would submit that there is no need to say anything

more than it is only Mr Justice Higgins who stands

as a judge who has made that proposition. Dealing

with the question of accrued right or immunity

section 8(c) of the ACTS INTERPRETATION ACT, in

our submission, is merely a provision of

construction. It is one here which is clearly

excluded by the specific provisions of section 12

which is expressed to have operation in respect of
previous criminal offences.

Of course, a repeal of a provision is one thing. A repeal may not affect any existing rights, but here

it is not merely a repeal of a provision, it is an

enactment of a further provision, and we submit that

the further provision is to be regarded as having

effect according to its terms and by its clear

terms here is to have operation by reference to any

criminal offences committed prior to its coming

into force. For those reasons we invite the Court

not to accept my learned friend's contentions on

that aspect.

(Continued on page 114)

ClT69/l/HS	113	8/6/88
Nolan

MR GRIFFITH (continuing):  As my learned friend indicated

to the Court, we are agreed that whatever the fate

of the demurrer the matter should be remitted to

the Federal Court, probably in Melbourne, for further hearing and that should the issue of

whether or not the plaintiff is absorbed remain

an issue, we would suggest that could be remitted

also. The only other matter, if I could indicate

to the Court, as well as appearing for the first-named

defendant who is - or actually, I do not appear for

him because there is now a different Minister.

Perhaps if the Court could substitute the name of
the Honourable Clyde Holding for the first defendant,

I could announce I appear for him and also - I did not announce it - for the second defendant - - -

MASON CJ: Yes.

MR GRIFFITH:  - - - although there does not seem to be any

particular remedy against the second defendent.

MASON CJ: Yes, well, the title. of the proceedings will be

amended accordingly.

MR GRIFFITH: If Your Honours please.

MR CASTAN:  Your Honours, with respect to the last argument

that we presented and the comments just made by

my learned friend concerning accrued rights, we

would wish to make it clear that it is our submission

that that argument will operate regardless of questions

of power. There was one comment in the course of my

learned friend's argument that suggested that perhaps

he had understood that we were not submitting that we

could, so to speak, escape the operation of section 12

of the current Act if the aliens power operated. We

wish to make it clear that our argument with respect to

the construction matter, the last matter we put

forward,whether or not or on whichever basis the

section is rendered applicable. If we be wrong on

the question of aliens and it is s·upported by

the aliens power applicable -otherwise applicable
to a person in the position of the plaintiff - then

we nevertheless say it does not apply purely as

a matter of construction and so with the migration

power.

(Continued on page 115)

ClT70/l/SH	114	8/6/88
Nolan

MR CASTAN (continuing): In relation to the migration

question, my learned friend referred to the

KWOK KWAN LEE case and references in the judgment

of Sir Garfield Barwick to the five-year provision
and then persons commencing to have to qualify,
so to speak,or meet the test of absorption. But,
of course, His Honour was there looking at a case
involving a person on a temporary entry permit,

in respect of whom, he cannot even commence to

qualify until five years is run. The situation

of persons on a temporary entry permit is, of

course, different to those we have been considering -

persons who are given permit to enter and remain

and then are subject to a different kind of

qualification or condition or possibility of

deportation. One has to read cases which are

dealing with the temporary entry permit situation

and prohibited immigrants who seek then to get the

benefit of having been in Australia under the

old provisions with some care when applying those

to the rather different situation of the person

who comes in as a permanent resident and does
nothing to disqualify himself during the period

that is the relevant period applicable under the

relevant legislation governing that immigration.

So far as my learned friend's general proposition is concerned, the analysis that there

is now to be a new basis on which the Court might

approach the whole question of immigration, we

would respectfully submit that so far as concerns

this case, that simply does not assist my learned

friend, because whichever way one goes it is

necessary to give meaning and content to the

concept of immigration as a constitutional head

of power. There is no difficulty, of course, in
saying, "Well, the Parliament may set as the

condition or qualification or criterion by which

one becomes absorbed in the community, one of

the criteria, perhaps, the attainment of citizenship

subject, perhaps, to other considerations and the

Court would always have the power to review whether

it was provided for sufficiently and whether there

was access to that status provided by the

legislation but that cannot help in relation to

this case because that simply was not the condition.

Our argument in relation to the immigration power, out

principle argument,is that there was no such

condition applicable. That was not the legislation.

(Continued on page 116)

ClT71/l/SR	115	8/6/88
Nolan

MR CASTAN (continuing): What my learned friend has

put may do, in respect of future cases to

which the law becomes applicable after 1984,

it cannot assist because one still has to look for the conditions of absorption, or

the process of absorption, or the criteria for

absorption applicable with respect to this

immigrant. And if those have been met - those

statutory conditions have been met, then there

is a power; there is an effect upon the operation of

the power as granted in the CONSTITUTION. It is

not merely a matter of saying, "Well, we can

a few years later pass a law setting up a

different setting up a different set of criteria

and then say they are the ones applicable~",

because, as we put it earlier, the particular

plaintiff has fallen outside the power by that

stage.

On the question of aliens, there was some

reliance by mv learned friend on the case of

CUNNINGHAM; (1903) AC. If what my learned friend

was really saying in relation to CUNNINGHAM is

that there is to be a new doctrine in this

Court that the Parliament can define for itself the content of a head of power under section 51, then we simply say that has never been the case

and this would be the first time that that has,

as we understand it, been put to the Court, and

we would respectfully submit that it is erroneous.
If that is what the Privy Council meant in

CUNNINGHAM, we would respectfully submit that

they were wrong.

We make it clear, with respect, that we

do not need to say, to support our argument

with respect to aliens, that the plaintiff needs

to establish that he is a British subject. I

touched on this in the COl.:lrse of my princi?1, argum211t. My

learned friend sought again to come back to the

notion of British subject, as though that was

the criteria. The statutory criteria laid down

under the old legislation focused on the term

"British subject" and the list in section 7 appears

to encompass a number of countries that may well
not be necessarily and precisely coincident with the concept
of subject of the Queen determined as a matter ot
constitutional construction. It is not a matter
of being governed by, or subject to the laws of

another country as determining the content of a

constitutional power in relation to Australia.

(Continued on page 117)

CIT72/l/JM	116	8/6/88
Nolan

MR CASTAN (continuing):  It is rather a question of

determining whether, in respect of any given

individual, that individual is or is not an alien,

and that is a test that can be applied according to

laws, the doctrine of the applicable test of

constitutional law governed by this country.

That may or may not be found in particular

provisions in other countries, or it may be that

some country says a person is a subject of the Queen,

but looking at the overall relationship it is clear

that they are not. What they call it and

provisions that they enact would not govern that

matter. That obviously would be a matter for

determination according to Australian law.

My 1earned friend had a lot to say about

the amendments to the AUSTRALIAN CITIZENSHIP ACT

and the repeal of section 7 of that Act and the

deletion of the status of British subject. That, in

our respectful submission, is entirely irrelevant to

this case. Those amendments came into operation on

1 May 1987, the deportation order with which this Court

is concerned was made on 22 September 1985.	It is
of interest to note that there have been these

changes subsequently, but it cannot determine the

applicable legal principles operative in relation to a

deportation order the subject of these proceedings

and made well before those provisions were repealed.

We draw attention to the passages in the speech

and statement of policy of Mr West, I think it was,

in 1983. That speaks about a concern to avoid

discrimination between different foreign nationals.

That is an entirely worthy aim. It is capable, of

course, of being achieved within constitutional power.

For instance, if it is desired not to distinguish

between aliens and non-aliens it is simple enough,

of course, for the Parliament to make a law dealing

with the entry of person into Australia relying only

on the itmnigration power and setting the tests that

have been discussed, including perhaps among the	tests or criteria the attainment of citizenship.
That would do away with any discrimination and, at
the same time, ensure equality of treatment and the applicability within the scope of available heads of
power.

(Continued on page 118)

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MR CASTAN (continuing):  An irmnigration power is available

in a totally no~iscriminatory way. The aliens

power, by its nature,in our respectful submission, requires discrimination between aliens and others.

That is what the power is. It is a power only in

respect of aliens.

Finally, Your Honours, we would respectfully

submit that the inevitable consequence which my

learned friend ultimately conceded to in relation
to aliens - that his proposed tests lead to thP.

conclusion that all immigrants are aliens - leads to a

constitutionally impossible result, we would

respectfully submit. It cannot be the case, as a

matter of constitutional principle of

sections Sl(xix) and Sl(xxvii) cover the same

ground. The Court is, in effect, being invited to

say that they have a co-extensive operation as a

matter of constitutional principle that -

BRENNAN J: Well, one is a power with respect to an activity,

one is a power with respect to persons, is it not?

MR CASTAN: Yes, Your Honour.

BRENNAN J: Well, does it follow that the area is coincident?

MR CASTAN: Well, if my learned friend says all immigrants are

aliens, then, in our respectful submission, he is -

if not entirely coincident, he is seeking to bring

all of those persons who are the subject, at least

initially, of the operation of the immigration power, into a coincident class with all of those who are the subject of section Sl(xix).

BRENNAN J:  But it still gives a lot of room for the immigration

power, for example, all the arrangements for providing

for immigrants to come to Australia.

MR CASTAN: Yes, of course. Perhaps I overstated it,

Your Honour. It would deal with services for

people ~rriving and the ~ike but in so far.as the

·inmi.gration power has operation upon persons entenng the

country, in so far as there is that aspect of its

operation, it would be saying they are precisely

coincident and, in our respectful submission, that

would be to read the two of them down to a meaning

that this is what we would respectfully submit is

constitutionally impossible. Those are the matters

which is desired to put in reply.

:V.iASON CJ: Ye-s, thank you, Mr Castau. The Court will consider

its decision in this matter ..

AT 4.35 PM THE' MATTER WAS ADJOURNED SINE DIE

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