Singh v Commonwealth of Australia

[2004] HCATrans 5

[2004] HCATrans 005

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S441 of 2003

B e t w e e n -

TANIA SINGH AN INFANT BY HER NEXT FRIEND MALKIT SINGH

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Defendant

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 10 FEBRUARY 2004, AT 10.19 AM

Copyright in the High Court of Australia

__________________

MR B. LEVET:   Your Honours, I appear for the plaintiff with MR R.B. O’HAIR and MS B.C. BOSS.  (instructed by Bharati Solicitors)

MR D.M.J. BENNETT QC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with my learned friends, MS K. RUBENSTEIN and MR C.J. HORAN, for the defendants.  (instructed by Australian Government Solicitor)

MR J. BASTEN QC:   If the Court pleases, I appear with MR J.R. CLARKE for the applicant on the motion.  (instructed by Jeremy Moore & Associates)

GLEESON CJ:   Yes, Mr Basten.

MR BASTEN:   Do you want to hear me on the motion?

GLEESON CJ:   Yes, Mr Basten.

MR BASTEN:   I think your Honours have been provided a copy of the pages from the judgment of Chief Justice Brennan in Levy v Victoria (1997) 189 CLR 579.

KIRBY J:   What is the attitude of the parties to the application?

MR BASTEN:   I understand the plaintiff does not oppose and that the defendant does.  At the top of page 602, about three lines down, his Honour noted that:

A declaration of legal principle or rule by this Court will govern proceedings that are pending –

in a court, including this Court.  Then, at about 12 lines down, in a line beginning “for leave to intervene”, his Honour noted that:

But where a substantial affection of a person’s legal interests is demonstrable (as in the case of a party to pending litigation) or likely, a precondition for the grant of leave to intervene is satisfied.

We say that we satisfy that aspect of the test.  We have pending litigation which will be determined in one respect at least by the judgment of this Court in this matter.  At 603 in the middle of the page his Honour noted that:

an indirect affection of legal interests enlivens no absolute right to intervene. 

Then at the final paragraph on that page at point 7 his Honour said:

However, where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene.

We say in this case that the justification is satisfied to the extent that we can at this stage.  We seek to support the plaintiff’s argument, so it is a little awkward perhaps for us to say that we can do better.  But without saying that, can I make three points.  Firstly, our written submission ‑ ‑ ‑

GLEESON CJ:   Just before you go any further.  Do you submit that the precondition that is satisfied is that the parties may not fully present the submissions?

MR BASTEN:   To the extent that that is so, your Honour, yes.

GLEESON CJ:   Well, if you look at the concluding sentence on page 603, which carries on over to page 604, that is the point, is it not?

MR BASTEN:   Of course.

GLEESON CJ:   And you do not get leave to intervene simply because you will put the same argument better.

MR BASTEN:   No, I was not seeking to suggest that, your Honour.  Might I add that to the extent that we would come after the plaintiff, we would, of course, not repeat what has been said already or deal with the same arguments that have been addressed.

GUMMOW J:   What points are you going to put that, on the papers at any rate, are not going to be put by your colleague?

MR BASTEN:   The point we seek to raise is that which is dealt with in 3.14 of our written submissions, in effect, namely we can see that there is a matter of emphasis involved. Questions 1 and 3 relate to the validity of section 10(2) of the Citizenship Act. At about two‑thirds of the way through that paragraph we make the point that that may not be determinative of the issue of the application to these parties of the Migration Act.

The point we seek to raise is that in relation to the aliens power, at least the question as raised by the Commonwealth’s submissions seems to focus on one particular issue, namely the extent to which the Commonwealth has power to legislate in respect of who may be treated as aliens, by which we take them to mean not merely about those aliens who may be treated as Australian nationals, to use a neutral phrase, but also as to those people who fall within the constitutional definition of “alien”, and that is a matter which we seek to address some submissions to on the basis that it is not ultimately fully addressed by my learned friends.

GUMMOW J:   Where do we find those submissions?

MR BASTEN:   Well, we did not have the Commonwealth’s submissions when we prepared our written submissions, your Honour, and we do not have a right of reply.  In relation to the immigration power aspect of the case, I think we have probably said in writing what we seek to say on that aspect of the matter and it is but faintly raised by the Commonwealth in its written submissions in any event, so we probably do not need to say any more.

GUMMOW J:   What is the new point that you have not had the opportunity to put in writing?

MR BASTEN:   The point is really, your Honour, that there is some discussion in the cases in recent years as to the scope of the aliens power, whether it is, in effect, a power which allows for a law which would regulate the rights and duties of aliens in this country, or coming into this country, or whether it is a law which would allow the Parliament to define who is to be treated as an alien.  In other words, as the Commonwealth seeks to put at 6.1.1 of its written submissions, is there, in fact, a power to define by way of exclusion persons who might not otherwise be aliens in a constitutional sense but are to be treated as such in the present circumstances.  Simply to put it in a concrete sense for the present purposes of this case, the submission will ultimately be, as I understand it, for the plaintiff, that one has birthright citizenship in the sense of alienage being determined as being born outside the country in question.  The question is whether the Parliament can say that of a person born within the country but not of Australian parents, that those persons too can be treated as aliens.

There are obviously two steps in the argument, but if one gets to the second step, namely, the power of the Parliament to deal with it in that way, that is the matter on which we would seek an opportunity to be heard.

HAYNE J:   That is, do you seek to be heard on section 2.2 of the Commonwealth’s submissions, paragraphs 25 through to 31?  Section 2.2, paragraphs 25 to 31, particularly, as I understand you, paragraphs 30 and 31?

MR BASTEN:   Yes, that is so.

KIRBY J:   You would not be addressing the Court on the second branch of your argument?

MR BASTEN:   There is certainly no issue about detention involved in this case, and we do not seek to say anything about that.  In relation to the immigration power, the Commonwealth deals with it very briefly.  The submissions we ‑ ‑ ‑

KIRBY J:   That is relevant to the first branch.

MR BASTEN:   It is, indeed, your Honour, yes.  No, we do not seek ‑ ‑ ‑

KIRBY J:   The second branch is the matter that was argued last week.

MR BASTEN:   No, we do not seek to say anything about that, your Honour.  It is not a matter which arises in this case.

KIRBY J:   Confined, as you have suggested, how long would your submissions take in your estimate?

MR BASTEN:   On the assumption that the points I seek to raise have not been dealt with at all, probably 30 to 40 minutes.

GUMMOW J:   These submissions of the Commonwealth at paragraph 30, they are not refuted, are they, in any reply?

MR BASTEN:   There is no reply, your Honour.

GUMMOW J:   Because that in a way is the bedrock question.

MR BASTEN:   It may well be.  We think it is.

GUMMOW J:   Namely, can the Parliament alter or give a particular meaning to what a lighthouse is?

MR BASTEN:   That is right.  That is so.

GUMMOW J:   Or is there some bedrock of the notion of lighthouse which cannot be changed?

MR BASTEN:   Yes, there is….., I think is the way the Commonwealth puts it.  Those are the submissions in support of the application.

GLEESON CJ:   Yes, Mr Levet.  I think we will hear the argument in support of the application and then we will hear the argument against it, Mr Solicitor.  We have heard what Mr Basten has said.  Now, Mr Levet I understand supports the application.

MR BASTEN:   No, I am sorry.  If I suggested that, I did not mean to.  He does not oppose it.  He does not support it either.

GLEESON CJ:   I see.  Is there anything you want to add, Mr Levet?

MR LEVET:   No, your Honour.

GLEESON CJ:   Yes, Mr Solicitor.

MR BENNETT:   If your Honour pleases. The argument put by my learned friend, or which my learned friend seeks to put, is exactly the argument in paragraphs 11 and following of the plaintiff’s submissions. It is the argument that the word “alien” is sufficiently frozen at the time of the Constitution to preclude legislation denying citizenship or membership or nationality, whichever word one uses, to a person born within Australia. We say there is a number and a penumbra of the definition and ‑ ‑ ‑

GUMMOW J:   You are referring to paragraph 11 of their submissions?

MR BENNETT:   Yes, your Honour.

GUMMOW J:   That seems to be on the immigration power.

MR BENNETT:   I am sorry, your Honour.  Yes, they say it is in relation to the other powers as well, as I understand it.  I am told 15, your Honour, is the – yes.

GUMMOW J:   Yes.

MR BENNETT:   It is exactly the main argument in this case.  In my submission, this is a classic case of someone with an identical interest to the plaintiff seeking to intervene and put the same argument.  Obviously, it may be put slightly differently.  That will always be the case, but the ultimate proposition is identical and the intervener is relevantly in an identical position to the plaintiff.

KIRBY J:   Yes, but Mr Basten, QC comes along and says he wants to put a slightly different or elaborated argument and he says it will take 40 minutes.  This is, one would think, less than a day’s case.  It is going to be little time for the Court and if it helps the Court in a matter of general importance, why should we close him out?  He has gone to the trouble to turn up here and here we are.

MR BENNETT:   Your Honour, for the reasons given in the passage my learned friend read to the Court from Levy v Victoria, that where the intervener’s submission is to the same effect by a party in identical interest the Court would normally not grant leave to intervene.

KIRBY J:   Yes, but if he tries to say the same old things as Mr Levet has put, he will be given pretty quick treatment, in my experience.

MR BENNETT:   When, your Honour says the same things, there is, with respect, a distinction.

KIRBY J:   He said the same old things.  I mean, if Mr Basten adds some nuance, the issue is an important ‑ ‑ ‑

MR BENNETT:   He is arguing for the same result, arguing for the same ultimate legal proposition.  He may, as any two advocates will, have different ways of putting it and different steps on the way, but Levy is talking about situations where the ultimate submission and the ultimate interest of the party is identical, and that is the situation here.  The other matter is this:  there is one respect in which they do differ in which my learned friend seeks to put a totally different argument, having ‑ ‑ ‑

KIRBY J:   This the second branch of his argument which he has disclaimed, as I understand it.

MR BENNETT:   If he disclaims that, I have no problem, your Honour, but the ‑ ‑ ‑

KIRBY J:   He may not disclaim it, but he does not seek to put it today.

MR BENNETT:   Your Honour, one of my submissions is that if he is granted leave to intervene, one of the conditions should be that he should not have liberty to put the argument about children which was argued in Applicants M276/2003 last week.

KIRBY J:   You would not seek to deny his client the benefit of that argument if the case last week came down in favour of the submissions he has put, but simply to keep him out from repeating that argument in this case which we have heard last week.

MR BENNETT:   One assumes that if that case goes the other way, subject to the usual possibilities of a challenge at some point, that would necessarily be so, your Honour, whatever view we took.

KIRBY J:   By “challenge at some point” do you mean continuing the challenge such as we saw after Nolan?

MR BENNETT:   Your Honour, that is what I mean by it.  I am not suggesting that would happen, but that is always a possibility, of course, with any decision of the Court.

KIRBY J:   Yes, it certainly is.

HAYNE J:   Now, Mr Solicitor, as I understand the case for intervention against you, it is that Mr Basten would seek to debate in argument the validity of the premise identified by the plaintiff in paragraph 15 which is simply taken by the plaintiff as a given premise.  On that basis, what do you say as to the intervention application?

MR BENNETT:   Your Honour, if a party in litigation concedes a proposition in argument and that proposition then appears in the judgment of the Court, then I suppose the authority of the case for that proposition is necessarily weakened, but the mere fact that arguendo a proposition along the way is conceded is not itself, we would submit, sufficient reason for intervention.

HAYNE J:   I do not understand there to be any concession.  I understand the plaintiff to take as the premise for the argument what is stated in 15.  I understand Mr Basten to say that he wishes to support that premise, rather than simply begin from it.

MR BENNETT:   Well, your Honour, paragraph 15 is a series of fairly general propositions, uncontroversial propositions, and, in my respectful submission, that is merely part of the subsidiary argument along the way to a result. 

GUMMOW J:   I do not think the bedrock question is it is something along the way. It is fairly fundamental to the construction of 51 of the Constitution in all sorts of ways.

MR BENNETT:   Your Honour, it would, I suppose, have the effect of discouraging matters that are capable of being seen as concessions being made in this Court, if they were to be the basis for interventions by other parties who have a similar interest.  The other matter is that the practice adopted with many interveners in this Court, of limiting intervention to written submissions, is an appropriate one and I do not wish to say more about that.  It is a matter for the Court.

GLEESON CJ:   Thank you.  Mr Basten, do you want to add anything?

MR BASTEN:   Just to say that the point that we seek to raise is not the point that there is a “frozen in time” meaning for a term in the Constitution, as the Solicitor puts. That is not our point at all. Our point goes to the power of the Parliament under section 51 to deal with matters as identified in the Constitution, and that is the point which is not dealt with at paragraphs 15 and subsequently in my friend’s submissions.

GLEESON CJ:   All right.  We will adjourn for a short time to consider the course we will take.

AT 10.37 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.38 AM:

GLEESON CJ:   Leave to intervene is granted on the limited basis foreshadowed by Mr Basten in his application.  Yes, Mr Levet.

MR LEVET:   Thank you, your Honour.  Your Honours, my learned friends and I have a client in these proceedings.

GUMMOW J:   Yes, why is your client anonymous?

MR LEVET:   Your Honour, that was the point I was immediately coming to. Her name is not S441 of 2003. Her name is Tania Singh.

GUMMOW J:   I notice the original process at page 1 had the name and at some later stage it seems to have been replaced by the number.  Is that on the basis of infancy?

MR LEVET:   No, your Honour, that was at the behest of his Honour Justice Kirby in the matter.

KIRBY J:   It was raised during the hearing.  I raised with the parties and I think Mr Burmester suggested that it might anonymised, but even before the Parliament enacted the law which relates to anonymising the names of plaintiffs, many plaintiffs, in my experience, wished to be anonymised in case the use of their names would impinge upon their future or that of their families.

MR LEVET:   Indeed, your Honour, yes.

KIRBY J:   It is really up to you whether you want the name of the plaintiff on the record.  I do not regard the statute as binding in this matter, but it is a question of whether, for some other reason, you do.  The name “Singh” is not at all unusual in India and therefore it is unlikely to be identifiable.  What do you ask us to do?

MR LEVET:   We would ask that our client be known by her name, Tania Singh.

GLEESON CJ:   Do you want the case stated amended accordingly?

MR LEVET:   Yes, indeed.  Thank you, your Honour.

GLEESON CJ:   Well, I am sure from what his Honour said that he will have no difficulty in amending his stated case.

KIRBY J:   Subject to anything the Solicitor wants to put, that the statute obliges the Court to name the plaintiff in this way.

GLEESON CJ:   Does anybody suggest that the statute does oblige the Court to anonymise the plaintiff?

MR BENNETT:   No, your Honour, we do not wish to be heard on the issue.

GLEESON CJ:   You apply for the case stated to be amended by identifying your party as she was identified in the originating process?

MR LEVET:   Indeed, yes, your Honour, on page 1.

KIRBY J:   In due course, I will make an amendment to the case stated which names your client by her proper name.

MR LEVET:   I am indebted to your Honour.  Your Honours, our client has a case against the Commonwealth.  It is not a case about detention.  It is not a case about the seeking of asylum.  It is not a case about refugees.  It is a case about the Australian identity and about who is an Australian.  It is a case involving a little girl who was born in Mildura, who is 6 years old, who the Commonwealth seeks to send overseas and who says to your Honours ‑ ‑ ‑

CALLINAN J:   Is that right?  Is that a correct statement?  The question is whether she has an entitlement to remain in Australia as a citizen, and removal from Australia would only follow if her parents were removed.

KIRBY J:   A citizen or a national.

MR LEVET:   Yes.

CALLINAN J:   Yes.  It is just an emotional statement which does not reflect the true facts.  It does not help me.

MR LEVET:   Your Honour, it would almost necessarily follow by operation of law that were she not an Australian national, she would be removed from Australia.  So, to that extent, your Honour, the statement is not an emotive one, it is a statement of fact, and the appeal to your Honours is an appeal based on Australian nationality.

KIRBY J:   Would you remind us of the section to the Migration Act that obliges the Minister to remove from Australia persons who are not Australian citizens or nationals? 

MR LEVET:   Your Honour, section 198 of the Migration Act 1958 provides for the removal of unlawful non‑citizens from the Commonwealth.

KIRBY J:   Could I just get clear in my mind, is your submission that your client is a citizen or is your submission that citizenship is a statutory concept that your client happens to fall outside that, but that the Minister is not empowered under the Constitution to remove her because she is a subject of the Queen?

MR LEVET: We would say that she is a subject of the Queen, your Honour, and also that there is an irreducible Australian nationality that is guaranteed by the Constitution in that capacity as a subject of the Queen. We would say that, yes, she does fall outside the statutory construct of a citizen, but that that is not relevant to the relief that ultimately is sought.

KIRBY J:   Is that put in the alternative by reference to the fact that there is no power in the Parliament to enact a law that permits the Minister to remove a person of your client’s status?

MR LEVET:   Indeed, yes, your Honour.  Your Honours, this is not just a case about a six‑year‑old girl who says to your Honours that she is an Australian national.

McHUGH J: The term “nationality” is not in the Constitution, is it?

MR LEVET:   No, your Honour.

McHUGH J:   Nor is the term “Australian”?

MR LEVET:   No, your Honour.

McHUGH J:   Sorry, I meant “Australian national”.

MR LEVET:   The situation has changed somewhat since the recent legislation of recent years to the extent that the ties have been cut with the Commonwealth.  Your Honours, there is something else about this case as well, in my respectful submission, that should be clearly understood, that ultimately it is a case about race.  The reason I say that it is a case about race is that it is a case which, were the Commonwealth’s submissions ultimately to be adopted, effectively gives the Commonwealth a power to enact special races legislation.  To that extent, race is quite clearly an issue in defining who is or is not an alien.

KIRBY J:   I query that because the statute is not in respect of people of a particular race, is it?  As we found in Shaw, it applies to British nationals.  It is not a matter of race as such now, is it?

MR LEVET:   Well, what the Commonwealth seeks ultimately to do, your Honour, is to define the constitutional concept of aliens by reference to a statutory construct.

KIRBY J:   Yes, but Mr Shaw was found to be an alien and he was a person of European race or British race.  So it is really not a matter about race nowadays, is it?

MR LEVET:   It is a matter about potential race, your Honour, and that comes about in this way.  In Mr Shaw’s case, Mr Shaw was a person who was born outside the Commonwealth of Australia and who came here, true it is a person of European race, but such a person – we accept anybody who comes from outside Australia is capable of attracting the aliens power, but to say that the next generation is also capable of attracting that head of power leaves it open to a government to make laws that ultimately are race specific.

McHUGH J:   Well, it seems to me, with great respect to you, this is a very poor piece of advocacy on your part.  In fact, you have just suggested one basis upon which this sort of legislation could be upheld constitutionally and that is by use of the race power under section 51(xxvi), the power to make laws with respect to:

the people of any race whom it is deemed necessary to make special laws;

Now, the Commonwealth has not relied on that, but you have now introduced it into the argument.

MR LEVET:   The Commonwealth possibly has not relied on it because it would be diplomatically and politically unpalatable for them to so rely.

McHUGH J:   It may be, but what is the point of this question of race?  It has not been mentioned in any submission that I can recollect.  I mean, if these are points of prejudice on your part, they are falling on deaf ears so far as I am concerned.  The question is whether this child is an alien.  She was born here and that is a pretty strong start in your favour.

MR LEVET:   It is, your Honour. 

KIRBY J:   I think you would be well advised to stick to it.  I agree with what Justice McHugh has just said.  I suppose you can say that many of the people who would be affected by this case are people of non‑European race.

MR LEVET:   Yes.

KIRBY J:   But the statute does not so prescribe and, as we saw in Taylor and Shaw, it is not administered in that way – although their problem was a different problem.  It is colour blind now, in terms of its language.

MR LEVET:   Possibly now it is, yes, your Honour, in terms of ‑ ‑ ‑

KIRBY J:   I just think you have introduced a bit of a red herring.  It is not really a helpful one.  I agree with Justice McHugh.  You had better go quickly back to aliens.

MR LEVET:   Indeed, your Honours.  Your Honours, the Commonwealth’s position is that they might determine who it is that is an alien and that they might do so by reference to it being, as it were, the obverse of the concept of citizenship.  That has inherent in it certain difficulties.  The first difficulty is that the power obviously cannot rise above its source.  For the Commonwealth to be in a position to define who it is that is a member of the Australian body politic by reference simply to a statutory construct of citizenship is to enable it, ultimately, to define its own head of power.

That is something that was not permitted of the Commonwealth at the time the Constitution came into effect. During the constitutional debates, as your Honours are aware, the delegates to the debates, in particular Josiah Symon and a former distinguished Justice of this honourable Court, Richard O’Connor, sought to prevent the Commonwealth from acquiring powers in relation to determining ultimately who was a member of the Australian body politic.

KIRBY J:   Now, the Solicitor‑General for the Commonwealth objects to the receipt of this argument.  He says that this falls outside Cole v Whitfield and the proper use of the conventions.  What is your answer to his contention?

MR LEVET:   Your Honours, it is able to be used for a number of reasons.  Firstly, one of the arguments put forward by the learned Solicitor‑General in his submissions is that there is an implied nationhood power, and he seeks to rely on that implied nationhood power.  In my respectful submission, the constitutional debates and the referenda which preceded the adoption of the Australian Constitution are such that it can be clearly seen that the power which the Commonwealth seeks to be inferred is a power which was quite clearly denied to the Commonwealth at the time of Federation.  One cannot imply a power which has been expressly denied the Commonwealth.

KIRBY J:   What is the reference to the referenda? I realise the issue of citizenship and whether it should be in the Australian Constitution was debated at the Conventions and the Convention decided not to express the Constitution in those terms, although the United States Constitution was so expressed, but was that the end of it? There was no differential provision about citizenship put to a referendum of the people. It simply went up in the form that it exists with the sole reference to nationality, as I understand it, being the reference in section 116, I think it is, to subject of the Queen

MR LEVET:   Yes, your Honour.  At the end of the process there is expressly no power over citizenship that is granted.  That occurs in such an express manner, we would say, and in such express circumstances that one cannot infer or imply that such a power exists.  The other aspect, your Honours, of Cole v Whitfield, is that it is quite clear that one can use, so far as the Commonwealth is concerned – I withdraw that. One can use the debates in relation to the citizenship power and the things surrounding citizenship power to locate the mischief insofar as the Constitution is concerned.

Quite clearly at the time of the constitutional debates the persons, or a majority of them, involved in those debates quite clearly sought to prevent a particular mischief.  The mischief that Josiah Symon sought to prevent was the very mischief we are discussing here, and that is whether the Commonwealth ultimately can be trusted to determine who forms part of the Australian body polity. 

The Convention delegates quite clearly were happy to allow a power to deal with those who came from outside the Commonwealth of Australia, as it has now become.  They were happy to have a power dealing with immigration, a power dealing with aliens, a power dealing with naturalisation, and the obverse of that being denaturalisation, but clearly they were not happy to hand over to the Commonwealth the power to exclude the members of any State or individuals within any State from the Australian body polity as a whole.

GUMMOW J:   These questions of nationality and citizenship raise questions of international understanding, did they not?

MR LEVET:   Yes.

GUMMOW J:   There is reference, I think, in some of the written submissions to the decision of the United States Supreme Court in Wong Kim Ark 169 US 649 (1898), and at page 666 and following in a very detailed judgment by Justice Gray there is detailed consideration of the Roman law system and Napoleonic system, the Napoleonic code. Now, at the time of these debates about the Constitution it seems to be the situation that in Germany, Switzerland, Sweden and Norway, and perhaps other European countries, it was the jus sanguinis that conferred citizenship or nationality.

MR LEVET:   Your Honour, certainly in the ‑ ‑ ‑

GUMMOW J:   Your provocative remarks about race are really beside the point, because no one suggests that these were particularly ghastly legal systems at the time or the Napoleonic code was deeply offensive, but that is the way it looked at it. The common law looked at it differently, looked on it by place of birth, but there were these two powerful ideas out there in the international law field at the time of the Constitution. Why do you construe the Australian Constitution as crippling the Parliament from shifting from one to the other or combining them? That seems to me the bedrock principle.

MR LEVET:   Your Honour, true it is that there were legal systems that were extant at the time of Federation which gave greater credence to the jus sanguinis, but likewise it has always been the common law that the jus soli should be applied.

GUMMOW J:   I know it has always been the common law, with some exceptions.  What I am saying to you is, so what?  Why do you take the common law as the necessary total bedrock and sole bedrock?

MR LEVET:   This Court has said in past judgments, your Honour, that ‑ ‑ ‑

GUMMOW J:   In this particular area of international concern.  Longstanding international concern.

MR LEVET:   Indeed.

HAYNE J:   Where questions of nationality were taken by the European systems as the governing law affecting questions of status, unlike the common law, which looked to domicile.  You look at the European systems from the middle of the 19^th century and Mancini’s lecture in 1850, nationality becomes of importance in European systems as determining questions of status, which again tips us back into: a power with respect to naturalisation and aliens is a power concerned in part, perhaps wholly, with questions of status. Questions of status for what purpose, when in a Constitution we find things like certain political rights dealt with otherwise? So we are, as Justice Gummow says, at bedrock level. You start from the premise, “Oh, the common law has always been”. Why do we start there?

MR LEVET: I think, your Honour, the reason we start there is this. Throughout the Constitution, there is a thread which delineates the relationship that exists between the Crown and the subject. That is absolutely inherent in our Constitution. An example of the importance of it can be seen from the way in which the Constitution deals with religion on the part of both the Crown and the subject. So far as the subject is concerned, it is not possible, for example, to impose any religious qualification or test for an office under the Commonwealth. There is complete freedom of religion in Australia for a subject.

GUMMOW J:   At the federal level.

MR LEVET:   Yes.

GUMMOW J:   The people rejected, did they not, an attempt to introduce this at State level as a constitutional mandator?

MR LEVET: Yes, your Honour. At the federal level, the test, so far as the Crown is concerned, is the antithesis. The Constitution provides, in effect, that the Queen of Australia will be the Queen for the time being of the United Kingdom. The Act of Settlement requires, at the present time and under present constitutional arrangements, that the ‑ ‑ ‑

GUMMOW J:   Yes, now, you mention the Act of Settlement.  The Act of Settlement is a great example of a lex sanguinis, is it not?  It enabled a German family to accede to the British Crown by virtue of descent, ultimately, from a member of the Stuart family.

MR LEVET: The point, I think, your Honour, is this. The point is that the Queen for the time being, or King, must be a Protestant, whereas there is, in effect, from a federal constitutional perspective, freedom of religion for the subject. In effect, there is a pact that is contained in this thread woven through the fabric of the Constitution. The pact, ultimately, I suppose, boils down to this, that the Constitution guarantees to the sovereign her succession, but likewise the Constitution guarantees to the subject the protection of the Crown. That is the thread that runs through the fabric of our Constitution, that relationship between the subject and the Crown. That is a relationship, your Honours, that cannot be, in our respectful submission, interfered with by the Commonwealth or by any other party without the consent of both of those parties.

KIRBY J:   I just do not understand why you have strayed off into the religion of the monarch and other matters. We have a word “alien” in the Constitution of the Commonwealth of Australia.

MR LEVET:   Yes, your Honour.

KIRBY J:   The word “alien” was used by people of the English language writing against a long history of the treatment of “alien” in the common law system different from the treatment in the European system.  The European treatment went back to biblical times.  You will remember that the family of Jesus took him from Nazareth to the city of David in Bethlehem to be counted in the census because he was of the family of David.  That was the bloodline.  But out system was always different and when they used that word the question is, did they use it in the Australian Constitution in the meaning of the common law, which would seem to follow from history, or did they just use it in an open‑ended way, that it could be adapted to an utterly different tradition?  That is really the issue we have to decide.  I just think you are straying into areas which we do not have to get into.  We can just look at the text.  What does “alien” mean in an Australian constitutional context against the background of centuries?  It goes back to the 12^th century, I think, of the English common law.

CALLINAN J:   Mr Levet, you were trying to respond to a question as to the admissibility or as to the reliance upon some speeches in the Constitution Convention debates and you were then asked some other questions, but your submission is that reliance is within Cole v Whitfield, that at the very least the debates give some insight to the language which was used and the nature and objectives of the movement towards Federation.  Is that not right?

MR LEVET:   Indeed, yes, your Honour.

CALLINAN J:   It may not be conclusive, but it is relevant and helpful and it is within what was said in Cole v Whitfield, is that correct?

MR LEVET:   Yes, your Honour, and a little bit further than that.  I hark back to comments of the late Sir Owen Dixon, that the common law was the ultimate constitutional foundation, and at the time of Federation the term “alien” was a word, both which had a common meaning and also a word which had a common law legal meaning.

CALLINAN J:   And those informed the language that was used in the Constitution itself. That is your submission.

MR LEVET:   Indeed, yes, your Honour.

KIRBY J:   That probably gets us over the Cole v Whitfield problem, but there is still an issue as to whether it was frozen by the understanding at 1901 or whether it is sufficiently broad to permit a different meaning, and you will come to that in due course.

GUMMOW J:   Do we know what happened with the Pacific Labourers Return Act, that statute in 1901?

KIRBY J:   That was Robtelmes v Brenan, your Honour.

GUMMOW J:   Yes.  What was the situation of children who had been born in Queensland to these people?  Does the Act talk about that?

MR LEVET:   No, it does not.  It talks about simply a labourer who was not in employment could be brought before a court, in effect, of summary jurisdiction.

GLEESON CJ:   But on your argument, on the understanding of the framers of the Constitution, children born in Queensland of indentured labourers brought from the Pacific Islands would not have been regarded as aliens?

MR LEVET:   So we would say, yes, your Honour.  Your Honour, we say that the power relating to aliens coming in from the outside is a power which applies only to them.  Whilst one looks at an immigrant who, by his or her very nature must come from outside and across a national boundary, an immigrant, as the cases clearly show, is a person who at some stage can cease to become an immigrant if he or she has been absorbed into the Australian community.  However, an alien will always be an alien unless and until he or she has been made a subject to the Queen presumably by the process of naturalisation.  It is for that reason that the Commonwealth has a power in respect of naturalisation.

GLEESON CJ:   One of the most natural processes known to mankind is human reproduction and aliens, even whilst not absorbed into the Australian community, can have children.

MR LEVET:   Yes.  Your Honour, if one says that an immigrant or an alien can have children, without meaning to be too flippant about it, what one, in effect, is saying birth canal is port of entry into Australia rather than a traversing of national boundaries.  That then goes on into other questions of whether, indeed, it is possible to excise that from the migration zone – obviously matters we do not need to go into today. 

Your Honour, the point, I suppose, is simply this, that if one can define an alien simply and solely by reference to citizenship, that anybody ultimately can be categorised as an alien.  Your Honour, what my learned friends say ultimately is that alienage is the dichotomy, the obverse, as it were, of citizenship.  Then they go on to say, “Yes, but we accept that it is for the Court to define the outer parameters of it”.  With respect, those two concepts are mutually exclusive.  Either the Court can define the constitutional term of “alien” or it is the obverse.

One can understand that citizenship is the obverse of alienage or that nationality is the obverse of alienage in respect of persons who have come from outside, but none of the cases to date, not one of them, attempts to ascribe the status of alienage to a person who is born in Australia.

KIRBY J:   The position did not arise until 1986.  This legislation was introduced during 1986.

MR LEVET:   Your Honour, but even in all the cases since then there has been that caveat so far as the definition is concerned.

KIRBY J:   We have never had a case on this point.  This is a new point on a statute only passed in 1986.

MR LEVET:   Yes.

KIRBY J:   Which is different, as you pointed out, or as the parliamentary paper points out, from the law in New Zealand and Canada and the United States, though the United States seems to be based on a constitutional provision.

GUMMOW J:   But not different to the United Kingdom.

MR LEVET:   Yes, it is different to the United Kingdom, but the different ‑ ‑ ‑

GUMMOW J:   Is there an automatic UK citizenship conferred upon any person born in the United Kingdom, under their current legislation?  I do not think so.

MR LEVET:   No, your Honour, but the United Kingdom constitutional arrangements, as exemplified in cases such as Ellen Street Estates and Vauxhall Estates, are that there is an absolute supremacy of the British Parliament. There is not an absolute supremacy of the Commonwealth Parliament in this country. Its powers are those which are ascribed to it by the Constitution. If it does not have a power to perform a particular act under the Constitution, then it is disentitled from doing so.

HAYNE J:   And you must found your argument, must you not, on the proposition that the constitutional expression “aliens”, when used in the collocation “naturalization and aliens”, means not only the absence of relationship between an individual and the relevant sovereign power ‑ which might be one understanding of what is meant by the term “alien”, absent relationship between the individual and relevant sovereign power – you have to go to say it is the absence of that relationship identified by the criteria of the common law.

GUMMOW J:   As understood in 1900.

HAYNE J:   Do I put accurately the premise from which your argument proceeds?

MR LEVET:   Your Honour, it is possible to have a relationship with another country and still, nonetheless, be both a subject of the Queen and an Australian national.

HAYNE J:   I understand that.  That is why I put it in negative terms:  absence of relationship between the individual and the relevant sovereign power.

MR LEVET:   I would not go so far as to say that.  Your Honour, one’s relationship with a foreign power has been said by this Court in Sue v Hill to be determined by the law of that foreign power.

HAYNE J:   The relevant sovereign power in the proposition I am putting to you is – you can describe it as the Crown, Australia – I wanted to avoid getting into the debates that the use of those terms generate – the relevant Australian sovereign power.

MR LEVET:   The Australian sovereign power.

HAYNE J:   Just so.

MR LEVET:   We would say, yes, your Honour, that there must be an absence of relationship between the individual and the Australian sovereign power.

HAYNE J:   Now, why should one import the criteria of the common law, as they stood in 1900 or 1901, when the power about aliens is in the collocation “naturalization and aliens”, which at least contemplates the forward movement by the creation of new relationships?  The power with respect to naturalisation surely extends to laws prescribing the persons who and the circumstances by which one may enter this relationship with the sovereign power of Australia.  Is that right?

MR LEVET:   Yes, your Honour.

HAYNE J:   Why then, in the aliens half of the power, do we, as Justice Kirby put it earlier in argument, “freeze it in time” by reference to 1900 and the common law of that time?

MR LEVET: First of all, your Honour, the Constitution cannot be construed in a vacuum. As was pointed out by her Honour Justice Gaudron in Australian Capital Television Pty Limited v The Commonwealth:

it is the general law which is “the source of the legal conceptions that govern us in determining the effect of the written instrument” and, in consequence, “constitutional questions should be considered and resolved in the context of the whole law, of which the common law . . . forms not the least essential part.”

Your Honour, there is a common law by which we can determine the meaning at a given point in time of the term “aliens”.  There is also ordinary English usage.  One cannot determine, as one will, the concept what is to be an alien, as has been pointed out in this Court on a number of occasions.  The common law, your Honours, is not frozen in time.  It is something which develops with the passage of time and with the decisions of various cases.

GUMMOW J:   That development, to some extent anyway, can be influenced by statute, can it not?

MR LEVET:   I suppose to some extent, your Honour, the common law presupposes the existence of statutes insofar as it formulates rules for their interpretation.  It can be influenced by statute, but the statute must have a proper constitutional foundation.  One cannot, in effect, define what the constitutional term is ‑ ‑ ‑

GUMMOW J:   I am just wondering what the English common law now is on this subject.

KIRBY J:   It would not matter, would it?  Given that the Parliament in the United Kingdom has enacted a law, it overrides the old common law and that is it.  That is not our situation.

MR LEVET:   Yes.

CALLINAN J:   I do not think there is any analogy at all between that and a written Constitution which can be changed by a referendum and not otherwise.

MR LEVET:   Indeed, yes, your Honour.

KIRBY J:   But you have to face up to the fact that this Court in Sue v Hill and in other cases the Commonwealth footnotes the development of the notion of the constitutional writs which were creatures originally of the common law and the royal prerogative, that these have developed over the course of the century and therefore the question is, why in the use of the word “aliens” do we take the view that it is frozen in time?  What is there so special about it that limits it to the meaning in 1901?  Why can it not ‑ ‑ ‑

GUMMOW J:   Not just frozen in time, but frozen by reference to what is now, it seems generally agreed, another country?

MR LEVET:   Your Honour, it has not ‑ ‑ ‑

GUMMOW J:   The right as one is talking about in 1900 and 1901, they are all English.

MR LEVET:   Yes.  Indeed, your Honour, at that time the term “alien”, the concept as it then existed of indivisibility of the Crown, encompassed not merely someone who had come from outside Australia but, in effect, someone who had come from outside the British Empire.  The usage of the term has changed and in Australian constitutional terms I would submit that the term “alien” is now to be read as being an alien in respect of the Crown in the right of Australia as opposed to the former indivisible sovereign.  So alienage was previously looked at as being a person from outside, as it were, the greater British allegiance.  For instance, someone of Chinese, Indian or Pacific Islander origins would have been deemed to be an alien to Australia in 1901, but someone from either the United Kingdom or from one of the other Crown colonies at that stage would not have been deemed an alien.  It would have been thought a very odd thing.

GUMMOW J:   Well, I am not sure about British India.  Anyhow, having isolated and identified common law in that particular sense in 1901, then having conceded the notion of allegiance as has to accommodate some political changes which have taken place, which you agree, and I think you accept that there is now an Australian common law, you seek to somehow hang onto the frozen part back in 1901 as constitutionally immutable in some way.

MR LEVET:   Your Honour, I suppose “alien” has a meaning that is not just a common law meaning, although the common law would have influenced its original constitutional meaning.  It is also something that has a common meaning.  One could not, for instance, as his Honour Justice Kirby has pointed out on prior occasions, most recently in Shaw, define an alien as to say “include any person of Aboriginal extraction or any Australian‑born person of Chinese descent”.

KIRBY J:   Well, that was not an original thought of mine.  Sir Harry Gibbs said that in Pochi and Justice Gaudron said it in Nolan, I think.  It is not for the Parliament exclusively to define what an alien is.  It is ultimately for this Court.

MR LEVET:   Yes.

KIRBY J:   I just have a problem with – given, for example, what the Court decided in Sue v Hill, that “citizen” or “subject of a foreign power” included the United Kingdom, a notion which would have been alien, if I can use that word, to the thinking in 1901, if the Constitution develops in that way how can you take the view that “alien” is fixed with the meaning of the word in 1901, as distinct from being a notion of being outside loyalty to the country, there being two streams of law in the international community? So what stops us giving a broad interpretation to it that permits the Parliament to do what it did in 1986?

MR LEVET:   Your Honour, we as a community accept certain changes to our constitutional arrangements as they evolve, but the changes that we do accept proceed from a bedrock of principle.  Jus sanguinis is completely foreign to the common law.  It is not part of the bedrock of principle from which changes can, in my respectful submission ‑ ‑ ‑

GUMMOW J:   It is not entirely foreign, is it?

MR LEVET:   Well, no.  There was the matter of Dred Scott v Sanford, a rather unfortunate decision of the US Supreme Court, which ultimately proceeded from the basis of jus sanguinis.  As your Honours will recall it, it was a case which occurred immediately prior to the Civil War.

KIRBY J:   It was one of the causes of the Civil War.

MR LEVET:   It could, indeed, be argued as being so, yes, your Honour.  It was as a result of the unfortunate consequences of that case and the importation of jus sanguinis that you come to see the Fourteenth Amendment to the US Constitution, which basically restored the jus soli principles of the common law and did restate the common law position.

GLEESON CJ:   By the way, since we are discouraged now from using Latinisms, what is the English equivalent of the expression “jus sanguinis”?

MR LEVET:   Your Honour, my Latin is terrible.  I know what the concept means, the jus sanguinis – Dr O’Hair reminds me that the literal translation is law of the blood.

GLEESON CJ:   I thought “jus” meant “right” rather than “law”.

MR LEVET:   The right of blood.

GUMMOW J:   By right of blood.

KIRBY J:   Right by blood.

MR LEVET:   Yes, but jus sanguinis relates solely to descent, whereas jus soli, the common law concept, relates, as was indicated in Calvin’s Case, to the place of one’s birth.

Your Honours, if I could develop one particular aspect of alienage, that is the issue of a local allegiance, it can be readily accepted that an alien who sojourns in one’s country is subject to a local allegiance insofar as there are reciprocal rights and obligations between that person and the Crown.  The obligations of that person are to respect the laws of the host country.  The rights of that person are to expect the protection of the Crown while he so sojourns.  An alien can be removed from the country discretionarily at will, but unless and until naturalised remains just that – an alien.

KIRBY J:   But even within Calvin’s Case – you quote the passage from Lord Chief Justice Coke in 1608 on page 6 of your submissions.  His Lordship said:

There be regularly . . . three incidents to a subject born.  1. That the parents be under the actual obedience to the King.

Is that that form of obedience that comes from being in the King’s dominions?

MR LEVET:   Yes, your Honour.  We would say it is not ‑ ‑ ‑

KIRBY J:   It does not require, in his first condition, allegiance on the part of the parents?

MR LEVET:   It does not require naturalisation on the part of the parents.  We would say it does require a local allegiance on the part of the parents and for that reason the two traditional exclusions from a person born within the country were the child of a diplomat and also the child of a member of an invading army, neither of whom owed allegiance, even local allegiance, and in practical terms were exempted from it.

KIRBY J:   So you say you fall within the categories, the second category being birth within the King’s dominion, and thirdly, not being within those exceptional cases?

MR LEVET:   Yes, your Honour.

KIRBY J:   The question still remains, why are those exceptions, stated as long ago as 1608, binding on an Australian Parliament acting under a Constitution coming into force in 1901?

MR LEVET: Your Honour, the Constitution itself presupposes the common law, firstly. In the preamble it is an agreement:

to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom –

that being itself a common law concept. Beyond that, however, if I can refer you to paragraph 26 of the plaintiff’s submissions. The Parliament’s power to define an alien is drawn from distinctions relative to a relationship that is a legal one ‑ the relationship between the Crown and the subject. The Constitution, we would say, gives only the core concept and does not define the outer circumference of that power. There is, however, we say, a certainty, and that is that the term cannot mean its antithesis. Insolvency, we say, cannot mean solvency. A person who is born in Australia cannot be an alien, save where he is born to a foreign sovereign, an accredited representative of a foreign sovereign or an enemy alien.

GLEESON CJ:   Now, Mr Levet, you take an argument beginning with the position as it was in 1901.

MR LEVET:   Yes.

GLEESON CJ:   It would not be a question of being born within Australia, would it?  It would be a question of being born within the Queen’s dominions.

MR LEVET:   At that time, yes.

GLEESON CJ:   Which were very extensive at that time.

MR LEVET:   Yes.

GLEESON CJ:   So, on your argument, the Constitution disempowered the Parliament from treating by legislation as an alien someone who was born anywhere within the Queen’s dominions as they stood at 1901?

MR LEVET:   At that point in time, yes, your Honour, but there was a concept which remains the same, that is to say, an alien is somebody who came from outside.  The real change has been, outside what?  Back in 1901, it was the Queen’s dominion, in its wider context.  Today, it is outside the dominion of the Queen in the right of the Crown of Australia, because we would accept, as this Court has held incrementally, that the position is that the term “the Crown” or “the Queen” now does mean the Crown in the right of Australia or the Queen in right of Australia.  Your Honours have held that as recently as in Shaw.

We accept that that is the law.  It has changed.  This has changed incrementally.  It has changed in accordance with evolving common law concepts and constitutional changes that have occurred as a result of a number of enactments – not least the Australia Act – since that time.

GUMMOW J:   And simple practice.  The question is, on what ministerial advice does the Sovereign act?  It is a constitutional monarchy.  The question is, on whose advice, what ministerial advice, and the answer is ‑ ‑ ‑

MR LEVET:   The Prime Minister of Australia.

GUMMOW J:   Yes.  Not the British Foreign Office.

MR LEVET:   No.  But having said that, your Honour, the legal concept remains the same, that is, that the term “alien” is a constitutional term and is not a term which can be or should be prescribed by the Commonwealth.  We would say that the Commonwealth cannot write itself a blank cheque by way of a head of power.  For the Commonwealth to be able to define the term “alien” solely by reference to citizenship enables the Commonwealth to remove persons from the body polity.  Ultimately, and at its crudest form, a removal of a group of people from the body polity gives the Commonwealth the right to decide who will be its electors, who will vote for the government.

GUMMOW J:   You do not say that the only people who can be electors are citizens, do you?

MR LEVET:   Under the present constitutional arrangements, no.

GUMMOW J:   Because certain permanent residents have the vote, do they not?

MR LEVET: Your Honour, if one looks at section 7 of the Constitution we heard that:

The Senate shall be composed of senators for each State, directly chosen by the people of the State ‑ ‑ ‑

GUMMOW J:   Yes, that is right.

MR LEVET:   There is a definition of the people of the State, obviously “subjects of the Queen”.

HAYNE J:   Which reduces, does it not, the nature of the fear which you conjure up?  Sections 24, 34, 117 provide for certain protections, for certain rights by reference to a concept other than the word “alien”; people of the Commonwealth, subject of the Queen and so on.  So what exactly is the fear that you seek to conjure up by saying Parliament cannot legislate at large with respect to aliens about who is and who is not an alien?

MR LEVET:   Ultimately it is the ability of Parliament to define who it is that is a member of the Australian body polity.

KIRBY J:   I suppose you say that if Parliament in this case can attach non‑nationality consequences to the blood of the parents, it could do so by reference to the blood of the grandparents being Chinese, or by reference to the blood of the parents being Aboriginal, or by reference to some other criterion, whereas the purpose of the constitutional debates as revealed and the language used by the Constitution was to prevent Parliament being able to take away such a fundamental right of nationality.

MR LEVET:   Yes, your Honour.

HAYNE J:   But to give the Parliament power with respect to race.  Race is a difficult subject, but we have the race power.  We have, for example, section 25, a provision as to races disqualified from voting in the House of Representatives.

MR LEVET: Firstly, what I would say about that, your Honour, is that the powers contained under section 51 are powers subject to the Constitution. That is inherent in the wording of the section itself. Secondly, I would say that no government could be conceived in the present climate of relying on the race power per se and baldly. To do so would be to place ourselves outside the general Commonwealth of nations in much the same way as the apartheid regime of South Africa was once placed outside it.

HAYNE J:   But if it is relevant to go back to how things stood at 1900, if it is relevant to understand the concept of “alien” by reference to common law rules which have been heavily modified by statute, be it said, in the UK by that time, are we also to go back and pick up the bag and baggage that attended the Constitutional Conventions in relation to questions of race?

MR LEVET:   Your Honour, what the constitutional convention clearly had in mind was to hand to the Commonwealth certain powers:  one was a power to determine who it was that came into our borders, in effect, the immigration power; the next was the power to naturalise an alien who came within our borders, the naturalisation power; the power to make laws with relation to aliens, an alien being someone from outside the British Empire, British dominion, who had come into Australia and who had not been naturalised.  Those are the powers that were given at the time of Federation.

The power that was not given at the time of Federation was a power to determine who, within Australia, of the existing members of the body politic, was and could remain a member of that body politic.

GLEESON CJ:   Did it include the power to determine what was involved in the process of naturalisation?  Did it include a power to make a law about what you had to do in order to become naturalised?

MR LEVET:   Yes, clearly.

GLEESON CJ:   So it was not only a power to make laws about people who had not yet become naturalised, it included a power to make laws about what you had to do in order to become naturalised.

MR LEVET:   If you came from the outside, yes.

GLEESON CJ:   Yes.

HAYNE J:   Well, you say, if you come from the outside.  What of the child born to Australian parents overseas?  Could Parliament pass a law saying that, without more, such a child shall be an Australian, or shall not be an alien?

MR LEVET:   Yes, you can, and the reason your Honour can is that what one is doing is, in effect, adding to a right rather than subtracting from it.

HAYNE J:   And is that an exercise of the aliens power or of the naturalisation power?  What is it?

KIRBY J:   Or immigration, perhaps.

HAYNE J:   No, there is no question of immigration.  The child remains beyond the seas.

KIRBY J:   When the child comes into Australia.

HAYNE J:   No, but the question posited, Mr Levet, is much simpler.  It is, could the Parliament pass a law saying a child born of Australian parents beyond the shores of Australia shall, without more, not be an alien in Australia?

MR LEVET:   Yes, your Honour, it could, because that is an exercise of the naturalisation power.  It is an inclusive, rather than an exclusive, exercise of power.  The naturalisation power is a power ‑ ‑ ‑

GUMMOW J:   So you could expand the common law notion, but not contract it.  Is that the idea, that you are not limited to it?  You can expand it, but you cannot contract it.  The question is, why?

MR LEVET:   Your Honour, to naturalise somebody, firstly, it is a power which is expressly given by section 51, so you can certainly expand to that extent.  You can naturalise a person who might not otherwise be a member of the body polity and include them.  What you cannot do, by reference to jus sanguinis, is to interfere with a relationship that exists between the Crown and the subject.

HAYNE J:   Because this raises the question of these references you make to the common law.  If you go to United States v Wong Kim Ark, there is conveniently summarised at pages 670 to 671, particularly at the head of 671, the series of statutes that were passed in England, extending the class of persons who were subjects.

MR BENNETT:   Yes, that would, as I understand it, be the effect of their argument.

GUMMOW J:   We have to look at the questions in the stated case rather carefully I think, at page 9.

CALLINAN J:   Yes, because, Mr Solicitor, if you were to lose not all of section 10(2) would be invalid. It may be that – no, I am sorry, I withdraw that.

GLEESON CJ:   Questions 1 and 2 are expressed in the alternative, and I do not understand anybody to press for a positive answer to question 1.

GUMMOW J:   Yes, it seems as if 1 is not pressed.

MR BENNETT:   Yes.

KIRBY J:   When the case stated was first presented it only had question 1, and it was following the argumentation on the case stated that question 2 was inserted.

MR BENNETT:   Yes.

HAYNE J:   I think we really have to get to the bottom of this, perhaps not with you, Mr Solicitor, but the written submissions for the plaintiff ask for an order at page 16 of their submissions in form, “Declaration that Plaintiff acquired Australian Citizenship by birth on 5 February 1998”.

MR BENNETT:   Yes.

HAYNE J:   Now, it is a matter for your opponent, I think, not for you.

MR BENNETT:   That is so, your Honour.

HAYNE J:   We really have to know where we are up to.

MR BENNETT:   In any event, the different questions arise in relation to question 4.

GLEESON CJ:   Just look at the second alternative, that is that she “acquired Australian nationality” - now, that expression “Australian nationality”.

GUMMOW J:   It is not a constitutional expression.

GLEESON CJ:   Is that a constitutional expression, a statutory expression?

MR BENNETT: Well, we would rather assume, your Honour, that meant ceased to be an alien within the meaning of the Constitution. I rather read it that way, although that is not what it says.

HAYNE J:   Nor is it the form of declaration which they seek - order 2.

MR BENNETT:   No.  The second question asked really asks in relation to terms which are not known to the law in a relevant sense.

KIRBY J:   The expression “Australian nationality” is defined by reference to “subject of the Queen” which is a constitutional expression.

MR BENNETT:   That is, your Honour, yes. I had simply assumed that was a clumsy way of asking whether she was an alien within the meaning of the Constitution.

GUMMOW J:   Yes.  Then there are questions about 10(2), but the submission really is not that 10(2) is invalid, but that the words “and only if” should be struck out.  I do not think it is contested that persons who qualify under (2) somehow are cast out.

MR BENNETT:   Yes.

GUMMOW J:   It is saying that there are more than those people, including the plaintiff, not that those people do not qualify, I think.  Anyhow, we will hear all this in reply.

MR BENNETT:   Yes.  In relation to the fourth question, I will have submissions in relation to the immigration power as well because, very shortly summarised, where one has a child of tender years we would submit if the parents are unlawful non‑citizens and there is power and statutory provision for the removal of the parents from Australia ‑ ‑ ‑

GUMMOW J:   They cannot become permanent residents under 5A; that is how the Act works, is it not?

MR BENNETT:   That is certainly part of it, your Honour, but there would be an incidental power to remove with them any young dependent children as an incidental part of the immigration power, even if those children were Australian citizens, but that is an issue which I will come to in due course.

GLEESON CJ:   How long do you expect to require to complete your argument?  I only ask this for the purpose of giving a marking for tomorrow’s case.

MR BENNETT:   I would not think more than half an hour, your Honour, but it may be a little longer.

GLEESON CJ:   How long do you expect to be in reply, Mr Levet?

MR LEVET:   About half an hour, your Honour.

GLEESON CJ:   Thank you.  We will take the next case not before 11 o’clock.

MR BENNETT:   Your Honour, I was just starting to deal with the argument based on the Convention debates.  I do not propose to spend a lot of time on that except to say this, that the issue is discussed at some length in a book written by my learned junior, called Australian Citizenship Law in Context, which conveniently sets out the various themes in the Convention debates and analyses them. 

I refer to this not for the purpose of placing her views before the Court, but rather for the purpose of placing before the Court, in a convenient form, an analysis of the material in the Convention debates fully annotated to that.  What she demonstrates in chapter 2 of that book is the reasons why the particular proposal was rejected by the Convention debates, which has little to do with the sort of argument being presented in the case here.  One cannot, we would submit, read down a power by virtue of a decision of the Convention not to include a particular provision, that is ‑ ‑ ‑

GUMMOW J:   Apprehended trouble with the Imperial authorities would have been one thing in their minds.

MR BENNETT:   Yes.

GLEESON CJ:   The three subjects, of race, immigration and alienage were very touchy subjects in terms of relations with the Imperial authorities at the time.

MR BENNETT:   Yes.

CALLINAN J:   Was it not because of the concern that the children of South Sea Islanders might be regarded as non‑aliens that the Queensland Government caused them to be repatriated and was that not, in a sense, a condition – to say condition precedent is putting it too high, but a matter relevant to whether Queensland would join the Federation and whether it would be accepted within the Federation?

MR BENNETT:   There was also a concern, your Honour, as to the extent to which States had different rules for who qualified as citizens of that State and what would follow if the Federal Government were to either have its own definition or adopt different definitions.  There were problems seen in having a dual classification, citizen of New South Wales and citizen of the Commonwealth, and that ‑ ‑ ‑

GLEESON CJ:   Which is the American system, in the Fourteenth Amendment provided citizen of the United States and citizen of the State.

MR BENNETT:   Yes.  A lot of the objections were based on the existence of other powers, so, again, it is rather surprising to read down those powers by reference to the failure to duplicate them.  They do not, in my submission, really help.  While I am dealing with the Convention, might I also deal with one paragraph in my learned friend’s submissions in paragraph ‑ ‑ ‑

KIRBY J:   Did you say that the point that you recited earlier was in Ms Rubenstein’s text, chapter 2?

MR BENNETT:   Yes.

KIRBY J:   I only have one page which is [3.2.1.2] which I assume is chapter 3.

CALLINAN J:   That is all I have, too, actually, page 53, I think.

MR BENNETT:   Yes.

KIRBY J:   If there are more, perhaps you could hand that up tomorrow.

MR BENNETT:   Yes.  It has not been provided.  It has been footnoted.

GLEESON CJ:   You can give us a copy tomorrow morning.

MR BENNETT:   I will have it provided tomorrow, your Honour, yes.

GLEESON CJ:   Thank you.

MR BENNETT:   In paragraph 10 of my learned friend’s submissions, he supplements his submissions about the Convention debates by saying that:

The proposal to confer power on the Federal Parliament to enact laws in relation to citizenship was defeated in a series of referenda over 1898 and 1899, and as a consequence no such power is ‑ ‑ ‑

KIRBY J:   I think he backed off that when I asked some questions about it.

MR BENNETT:   First of all, the defeat was merely a failure in New South Wales to achieve the minimum vote.  It was not some ‑ ‑ ‑

CALLINAN J:   What is the relevance of that?  It failed.

MR BENNETT:   It is none, your Honour, no relevance.

KIRBY J:   But it was not put up as a specific separate ‑ ‑ ‑

MR BENNETT:   No, it was not, your Honour.

KIRBY J:   So it is not a matter of failing at the referendum.  It was never part of the constitutional proposal?

MR BENNETT:   Yes.  The issue is discussed in the 1976 edition of Quick & Garran, at pages 213 and 225, which describes those referenda and exactly what occurred in relation to them.  In my submission, that does not assist my learned friend at all.

KIRBY J:   Page 213, you say?

MR BENNETT:   213 and 225, your Honour.  Now, in relation to the position as at 1900, we have provided to your Honours in tab 5 of our additional material a chapter entitled “Access to Citizenship:  A Comparison of Twenty‑Five Nationality Laws”, which is a chapter in a book entitled Citizenship Today:  Global Perspectives and Practices.  Your Honours will see a number of tables in that which set out the ‑ ‑ ‑

GUMMOW J:   I thought pages 17 and 18 looked quite useful, quite apart from tables.

MR BENNETT:   Yes.  Your Honour, there is a schedule at page 20 which sets out “Date of Inclusion” in relation to jus sanguinis and “Date of Inclusion” in relation to jus soli.  Your Honours will notice in the jus sanguinis column there are no negatives, although there are different limitations and different rules in relation to generations.

KIRBY J:   I took the plaintiff’s argument to be – it is all very well what these foreign countries like Denmark, Estonia, Latvia, Portugal and so on do, but we of our common law and British tradition have had a consistent position.  It is still the same in New Zealand, it is still the same in Canada, and it is still the same in the United States.

MR BENNETT:   A position which had been modified by statute from the 14^th century in relation to the extension of the jus sanguinis, although the only limitations on the jus soli were the three referred to in Calvin’s Case; the invading army, the foreign diplomat and the child of a foreign sovereign.  I do not know if there was ever a case of the child of a foreign sovereign being born ‑ ‑ ‑

KIRBY J:   Queen Elizabeth I had several suitors.  Anything might have happened.

MR BENNETT:   Yes, that might have led to some interesting questions. Your Honour, the importance of the legislation is that it was something which was a matter of international difference and a matter on which the United Kingdom itself had legislated. The United States had taken an extreme position in its Constitution, and one could argue that the need had been felt in the United States to constitutionalise the principle.

KIRBY J:   What is the position in Ireland, which would have inherited the English law in this respect?

MR BENNETT:   Your Honour, the table suggested in 1935 had both the jus soli and the jus sanguinis.

GUMMOW J:   They now have a statute of 2001, Irish Nationality and Citizenship Act 2001.

MR BENNETT:   Yes.

KIRBY J:   They claim in section 6(3) that any person born in the island of Ireland is an Irish citizen from birth – a broad claim.

MR BENNETT:   One would have hoped it would extend at least to the Aran Islands, but I do not know about Ulster.

KIRBY J:   Well, it is jus soli that goes beyond that which some people might regard as appropriate.

GUMMOW J:   They also have citizenship by descent.  They claim a lot of people.

MR BENNETT:   Yes.

GUMMOW J:   Common law notwithstanding.

MR BENNETT:   Of course, most modern jus sanguinis legislation is confined at least to the first and second – usually the first generation, which rather limits it.  Your Honours, would that be a convenient time?

GLEESON CJ:   Yes.  We will adjourn until 10.00 am tomorrow morning.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 11 FEBRUARY 2004