Singh v The Commonwealth - [2004] HCA 43

HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
TANIA SINGH AN INFANT BY HER
NEXT FRIEND MALKIT SINGH  PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA & ANOR                  DEFENDANTS
Singh v Commonwealth of Australia
[2004] HCA 43
9 September 2004
S441/2003
ORDER
Questions in the case stated answered as follows:
1.Q.       Is the plaintiff an alien within the meaning of s 51(xix) of the Constitution?
A.  Yes.

2.Q. If the answer to (1) is "No", is s 198 of the Migration Act 1958 (Cth) capable of valid application to the plaintiff?
A. Does not arise.

3.Q. By whom should the costs of the case stated to the Full Court of this Court be borne?
A. The plaintiff.

Representation:
B Levet with R B O'Hair and B C Boss for the plaintiff (instructed by Bharati Solicitors)
D M J Bennett QC, Solicitor-General of the Commonwealth with K Rubenstein and C J Horan for the defendants (instructed by Australian Government Solicitor)
Intervener:
J Basten QC with J R Clarke intervening on behalf of Applicant A269/2003 (instructed by Jeremy Moore & Associates)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Singh v Commonwealth of Australia
Constitutional law (Cth) – Legislative powers of the Parliament – Power to make laws with respect to naturalization and aliens – Meaning of "aliens" – Plaintiff born in Australia to non-citizen parents – Infant plaintiff not a citizen under the Australian Citizenship Act 1948 (Cth) – Plaintiff's parents citizens of India – Whether plaintiff an alien under s 51(xix) of the Constitution.
Constitutional law (Cth) – Interpretation – Interpretive theories – Significance of historical context in constitutional interpretation – Use of Convention Debates.
Constitutional law (Cth) – Legislative powers of the Parliament – Whether Migration Act 1958 (Cth), s 198 validly authorises the removal of a non-alien from Australia because that person is a non-citizen under the AustralianCitizenship Act 1948 (Cth).
Words and phrases – "alien".
Constitution, s 51(xix).
Migration Act 1958 (Cth), ss 196, 198.
Australian Citizenship Act 1948 (Cth), ss 10(2), 14.

GLEESON CJ. The primary issue in this case is whether the plaintiff is an alien within the meaning of s 51(xix) of the Constitution.
The proceedings challenge the validity of s 198 of the Migration Act 1958 (Cth), which provides for the removal of unlawful non-citizens (defined, in effect, to mean non-citizens who do not have permission to be or remain in Australia), in its application to the plaintiff. The plaintiff is a non-citizen. She has no substantive visa. Her parents, who are both citizens of India, entered Australia without visas in 1997. The plaintiff was born in Australia in 1998. She is a citizen of India, by descent. The Commonwealth contends that s 198, in its application to the plaintiff, is a valid law made pursuant to the power conferred upon Parliament by s 51(xix) of the Constitution, that is, the power to make laws with respect to "naturalization and aliens". The plaintiff's case is that, notwithstanding her Indian citizenship, and her lack of Australian citizenship, by virtue of the fact that she was born (albeit to non-citizens) in Australia, she is not an alien, and it is beyond the legislative competence of the Parliament to treat her as such.
The argument is about the meaning of s 51(xix). To be more precise, the question is whether, in s 51(xix), "aliens" necessarily excludes persons born in Australia, subject to certain presently irrelevant exceptions such as children of foreign diplomats, or of members of visiting armed forces. It is unnecessary to make further reference to such exceptions.
I have previously stated my view that, subject to a qualification, Parliament, under pars (xix) and (xxvii) of s 51, has the power to determine the legal basis by reference to which Australia deals with matters of nationality and immigration, to create and define the concept of Australian citizenship, to prescribe the conditions on which such citizenship may be acquired and lost, and to link citizenship with the right of abode[1]. In that regard, Brennan, Deane and Dawson JJ said in Chu Kheng Lim v Minister for Immigration[2], that the effect of Australia's emergence as a fully independent sovereign nation with its own distinct citizenship was that alien in s 51(xix) of the Constitution had become synonymous with non-citizen. The qualification is that Parliament cannot, simply by giving its own definition of "alien", expand the power under s 51(xix) to include persons who could not possibly answer the description of "aliens" in the Constitution[3]. Within the class of persons who could answer that description, Parliament can determine to whom it will be applied, and with what consequences. Alienage is a status, and, subject to the qualification just mentioned, Parliament can decide who will be treated as having that status for the purposes of Australian law and, subject to any other relevant constitutional constraints, what that status will entail.
[1]Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 173 [31].
[2](1992) 176 CLR 1 at 25, referring to Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183-184.
[3]cf Pochi v Macphee (1982) 151 CLR 101 at 109.
Everyone agrees that the term "aliens" does not mean whatever Parliament wants it to mean. Equally clearly, it does not mean whatever a court, or a judge, wants it to mean. When a judicial decision is made in the course of judicial review of legislative action, for the purpose of determining constitutional validity, it is made by reference to a standard other than current public opinion. In a representative democracy, the will of Parliament is the most authentic and legitimate expression of public opinion. It may be imperfect, but it is through the political process, culminating in legislative action, that public policy is formed and imposed. It is not the role of the judiciary to give effect to an understanding of public opinion in opposition to the will of Parliament. When a law enacted by Parliament, which represents, or purports to represent, current community values, is declared unconstitutional and invalid, the judicial arm of government is imposing a restraint upon the power of a democratically elected legislature by reference to a written instrument, the Constitution. The source of the restraint is the legal effect of the instrument; not the will of the judiciary. The legal effect of the instrument is determined by the meaning of the text.
It is in the nature of law that rules laid down in the past, whether the past be recent or distant, bind conduct in the future[4]. It is in the nature of a written, federal Constitution that a division of governmental power, necessarily involving limitations upon such power, agreed upon in the past, binds future governments. That the terms of the agreement were to have that future operation is a matter relevant to an understanding of their meaning, but the role of a court is to understand and apply the meaning of the terms, not to alter the agreement. Respect for the constitutional settlement is the primary obligation of a constitutional court. The source of this Court's power is the Constitution itself. There is no other. The role of the Court stems from the meaning and effect of the terms of that instrument. The stream of judicial review cannot rise above its source.
[4]Goldsworthy, "Originalism in Constitutional Interpretation", (1997) 25 Federal Law Review 1 at 27.
The power of judicial review, which is inherent in the structure of a federal union, was treated as axiomatic by the framers of the Australian Constitution[5]. The decision in Marbury v Madison[6] was 100 years old when this Court was established. Furthermore, as Alfred Deakin reminded Parliament when the Bill for an Act to establish this Court was being debated, the legislatures in the Australian colonies were all of limited power, and colonial courts were accustomed to declaring those limits[7]. The historical context is critical to the existence of a power of judicial review. The legitimacy of judicial review depends upon adhering to a technique of deciding the meaning, and therefore the legal effect, of the Constitution that is consistent with the nature of the power being exercised. Judicial review of the validity of legislative action by reference to the Constitution is conducted upon the hypothesis that the terms, express and implied, of a written instrument, brought into existence more than a century ago, bind present and future parliaments, and courts. That instrument cannot be amended by Parliament, or by a simple majority of Australian voters, or by a court. Its meaning controls the exercise of governmental power. In some respects that meaning is clear. In some respects it is contestable. What the Constitution does not say may be as significant as what it says. On any view, it is a legal instrument written in the past that controls the exercise of power in the present, and (subject to the possibility of amendment in accordance with its own terms) in the future.
[5]Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 262 per Fullagar J.
[6]5 US 137 (1803).
[7]Australia, House of Representatives, Parliamentary Debates (Hansard), 18 March 1902 at 10969.
Meaning
Writing extra-judicially in 1995[8], Priestley JA, of the New South Wales Court of Appeal, noted that the purpose for which courts seek to discover the meaning of a text is different from the purpose of, for example, a literary critic, or an historian. He said:
"Courts have to decide the meaning of texts in a way that will affect the property or civil rights of the parties before the court directly, and which may have an effect on the property or civil rights of many parties not before the court ...
Courts, unlike literary critics, are not usually in a position to start afresh, even if so disposed, every time the meaning of a particular text is being considered. No doubt every successive reader of both a literary and a legal text will come to it with a somewhat different perception of its possible meaning than anyone had before; the literary interpreter can take advantage of the fact that the meaning of a text can be approached as never closed; the legal interpreter is constrained when ... an authoritative meaning for legal purposes has previously been seen in the text."[9]
[8]Priestley, "Judges as Story Tellers", paper delivered at the Law and Literature Association Conference, San Francisco, October 1995.
[9]See also, Easterbrook, "Abstraction and Authority", (1992) 59 University of Chicago Law Review 349 at 362.
He referred to what F W Maitland said, comparing lawyers and historians[10]:
"The lawyer must be orthodox otherwise he is no lawyer; an orthodox history seems to me a contradiction in terms."
[10]Maitland, "Why the History of English Law is not written", in Fisher (ed), The Collected Papers of Frederic William Maitland, (1911) vol 1 at 491.
The Australian Constitution contains many terms that have a legal meaning, and that are naturally understood and applied by courts with reference to their legal meaning. To confine attention to s 51, they include bounties, insurance, bills of exchange, promissory notes, bankruptcy, insolvency, copyrights, patents of inventions and designs, trade marks, naturalization, aliens, corporations, trading corporations, marriage, divorce, matrimonial causes, custody and guardianship of infants, service and execution of process, and conciliation and arbitration. The concepts which those terms signify, in the context of the Constitution, can only be identified by reference to legal usage and understanding. Thus, when a dispute arose as to whether an incorporated local government authority that sold electrical appliances was a "trading corporation" within the meaning of s 51(xx), the question was not resolved by consulting a dictionary, and looking up the meaning of the noun "corporation", and the verb "to trade". This Court held that, although the authority in question was a corporation, and although it traded, it was not a trading corporation[11]. In reaching that conclusion, the Court looked to the history of the development of corporations law, and noted that, at and around the time of Federation, legal authorities treated trading corporations and municipal corporations as entities of a different kind[12]. The relevance of contemporary legal usage was that it formed part of the context in which the expression "trading corporations" was adopted, and an understanding of the context was necessary to a conclusion about the constitutional meaning of the expression. Furthermore, as Gaudron and Gummow JJ said in Re Refugee Tribunal; Ex parte Aala[13], some expressions used in the Constitution, such as "a writ ... of prohibition", or "patents of inventions", have no meaning other than as technical legal expressions. A knowledge of the law, including legal history, is indispensable to an appreciation of their essential characteristics.
[11]R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533.
[12](1974) 130 CLR 533 at 552 per Menzies J.
[13](2000) 204 CLR 82 at 93 [24].
When a word is used to signify a concept, the process involves both inclusion and exclusion. The argument for the plaintiff in this case amounts to the proposition that the meaning of "aliens" in s 51(xix) excludes someone who was born in Australia, regardless of other circumstances and characteristics such as those which apply to the plaintiff. The plaintiff contends that it is an essential characteristic of aliens referred to in s 51(xix) that they were born outside Australia. If that is right, then the power conferred upon the Parliament by s 51(xix) is restricted by that limitation upon the meaning of "aliens". People born in Australia are excluded from the concept, and legislation about such people is not supported by the power to make laws with respect to naturalization and aliens.
Meaning and context
Meaning is always influenced, and sometimes controlled, by context. The context might include time, place, and any other circumstance that could rationally assist understanding of meaning. I referred above to the meaning of "aliens" in s 51(xix). That is a brief description of the immediate context in which "aliens" appears, but the context is much wider than that. It includes the whole of the instrument, its nature and purpose, the time when it was written and came into legal effect, other facts and circumstances, including the state of the law, within the knowledge or contemplation of the framers and legislators who prepared the Constitution or secured its enactment, and developments, over time, in the national and international context in which the instrument is to be applied. Reference was made earlier to what was said in Chu Kheng Lim about such developments affecting s 51(xix). Another example is Sue v Hill[14].
[14](1999) 199 CLR 462.
In Jago v District Court (NSW)[15] it was necessary to apply Magna Carta and the Habeas Corpus Act 1679 (UK), 31 Car II c 2 for the purpose of deciding whether there existed, in New South Wales in 1988, a right to a speedy trial. Both in the Court of Appeal of New South Wales, and in this Court, there was a detailed examination of the meaning of the texts by reference to wider contextual factors, including, of course, history. The words of Magna Carta and the Habeas Corpus Act were read through modern eyes, but modern eyes were not blind to their historical context.
[15](1988) 12 NSWLR 558; (1989) 168 CLR 23.
Many examples could be given of the Court's reliance upon the historical context in which the Constitution was written as an aid to its interpretation. Two provisions that have given rise to notorious difficulties of interpretation are ss 90 and 92. The leading authorities which state the current jurisprudence in relation to both provisions rely strongly on history. In Ha v New South Wales[16], Brennan CJ, McHugh, Gummow and Kirby JJ said that "it is necessary to see the provisions of ss 90 and 93 in the context of Ch IV of the Constitution and to understand the operation which Ch IV was designed to have at the time of Federation". They referred[17] to the review by Dixon J in Matthews v Chicory Marketing Board (Vict)[18] of the history of the word "excise" in order to consider whether, according to any established meaning, "an essential part of its connotation is, or at any time was," such as to exclude taxes of a certain kind. They also considered whether there was any common use of the term "excise" in the Convention Debates which might illuminate its meaning[19]. The dissenting members of the Court, Dawson, Toohey and Gaudron JJ, similarly examined the historical context, although they drew different conclusions from it. In an earlier decision on s 90, Hematite Petroleum Pty Ltd v Victoria[20], Deane J laid much emphasis upon the European, as well as the colonial, experience prior to Federation, which, he said, formed the context in which the framers of the Constitution saw the relationship between duties of customs and excise. In Cole v Whitfield[21], in which the Court reconsidered a long line of conflicting interpretations of s 92, extensive reference was made to the history of s 92. It will be necessary to return to what was said in that case as to the utility of such reference. Consideration of the history of the Constitution is not for rhetorical purposes, invoking the past when it is convenient, and ignoring it when it is inconvenient, but for the purpose of understanding its meaning, which is related intimately to context.
[16](1997) 189 CLR 465 at 491.
[17](1997) 189 CLR 465 at 493.
[18](1938) 60 CLR 263 at 299.
[19](1997) 189 CLR 465 at 493.
[20](1983) 151 CLR 599 at 661.
[21](1988) 165 CLR 360.
Sometimes the problem of meaning lies, not in understanding the concept that a particular word or expression signifies, but in understanding the relationship between a number of concepts referred to in the Constitution. A well-known difficulty exists in the relationship between s 122, which confers upon the Parliament a general power to make laws for the government of territories (which includes a power to set up territorial courts), and Ch III, which deals with the Judicature. Not all aspects of that relationship have been finally worked out. An important aid to deciding what the Constitution means on this matter is an understanding of the disparate nature of territories with which the realities of government and administration must cope, including what was in the contemplation of the founders as to the variety of circumstances governing external and internal territories in the future.
One consideration of special importance to the meaning of a constitutional instrument is its general nature and purpose: an instrument of government, expressed in broad and general terms, designed to speak to a future that, as the founders well understood, was in many respects beyond their capacity to foresee. In his speech on the Judiciary Bill, Alfred Deakin said[22]:
"[The] Constitution was drawn, and inevitably so, on large and simple lines, and its provisions were embodied in general language, because it was felt to be an instrument not to be lightly altered, and indeed incapable of being readily altered; and, at the same time, was designed to remain in force for more years than any of us can foretell, and to apply under circumstances probably differing most widely from the expectations now cherished by any of us. Consequently, drawn as it of necessity was on simple and large lines, it opens an immense field for exact definition and interpretation."
[22]Australia, House of Representatives, Parliamentary Debates (Hansard), 18 March 1902 at 10965.

He also said[23]:
"... our written Constitution, large and elastic as it is, is necessarily limited by the ideas and circumstances which obtained in the year 1900. It was necessarily precise in parts, as well as vague in other parts. That Constitution remains verbally unalterable except by the process of amendment. ... But the nation lives, grows, and expands. Its circumstances change, its needs alter, and its problems present themselves with new faces. The organ of the national life which preserving the union is yet able from time to time to transfuse into it the fresh blood of the living present, is the Judiciary the High Court of Australia or Supreme Court in the United States. It is as one of the organs of Government which enables the Constitution to grow and to be adapted to the changeful necessities and circumstances of generation after generation that the High Court operates. Amendments achieve direct and sweeping changes, but the court moves by gradual, often indirect, cautious, well considered steps, that enable the past to join the future, without undue collision and strife in the present."
[23]Australia, House of Representatives, Parliamentary Debates (Hansard), 18 March 1902 at 10967-10968.
There is no inconsistency between Alfred Deakin's statement that the written Constitution is necessarily limited by the ideas and circumstances which obtained in the year 1900, and his statement that it is capable of responding to changing circumstances and necessities. He distinguished between interpretation and amendment. The ideas and circumstances of 1900 influenced what the Constitution says, and what it does not say. They form part of the context in which the meaning of the written words is to be understood. Changing times, and new problems, may require the Court to explore the potential inherent in the meaning of the words, applying established techniques of legal interpretation.
Meaning, intention and purpose
Acknowledging that "[i]ntention of the Legislature" is a "very slippery phrase"[24], courts, and Parliament itself, refer to "intention" or "intent" in stating rules and principles of statutory interpretation. For example, a principle of interpretation, referred to by this Court in several recent judgments, is that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language[25]. The Acts Interpretation Act 1901 (Cth) sets out various rules of interpretation of statutes which apply "unless the contrary intention appears"[26]. Questions of statutory interpretation are commonly formulated, and answered, by reference to legislative intention. For example, where a statute imposes a duty, the question whether a breach of the duty will give rise to an action for damages at the suit of an injured victim "depends upon the intention to be extracted from the statute when read as a whole, having regard to its general scope and purview as well as to its particular provisions"[27]. In Sovar v Henry Lane Pty Ltd[28], Kitto J warned that the intention that such a private right shall exist is not conjured up by judges to give effect to their own ideas of policy, and then imputed to Parliament. "The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation ... . It is not a question of the actual intention of the legislators, but of the proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances." In Wilson v Anderson[29], I sought to explain the objectivity of the concept of intention, comparing the position with respect to construction of a contract, and stressing that the exercise is not formal or literalistic but demands consideration of background, purpose and object, surrounding circumstances, and other matters which throw light on the meaning of unclear language. The danger to be avoided in references to legislative intention is that they might suggest an exercise in psychoanalysis of individuals involved in the legislative process; the value of references to legislative intention is that they express the constitutional relationship between courts and the legislature. As Kitto J said, references to intention must not divert attention from the text, for it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred. The words "intention", "contemplation", "purpose", and "design" are used routinely by courts in relation to the meaning of legislation. They are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked.
[24]Salomon v Salomon & Co [1897] AC 22 at 38 per Lord Watson.
[25]eg Coco v The Queen (1994) 179 CLR 427 at 437; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 492 [30].
[26]eg Acts Interpretation Act 1901 (Cth) ss 2(1), 4, 5, 8, 10, 10A, 15, 15B, 16, 16A, 16B, 16C, 17, 17AA, 18, 18A, 19A, 20, 21, 22, 23, 25, 25B, 25C, 25E, 26, 27, 28, 29, 33, 34AA, 35, 36, 47.
[27]Martin v Western District of the Australasian Coal and Shale Employees' Federation Workers' Industrial Union of Australia (Mining Department) (1934) 34 SR (NSW) 593 at 596 per Jordan CJ, citing Pasmore v Oswaldtwistle Urban Council [1898] AC 387 at 394.
[28](1967) 116 CLR 397 at 405.
[29](2002) 213 CLR 401 at 417-419 [7]-[10].
Principles of purposive construction, and the provisions of the Acts Interpretation Act, dictate that regard be paid to purpose and object. Section 15AA of the Acts Interpretation Act provides that, in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. Section 15AB permits consideration of extrinsic material in the interpretation of an Act "if [the] material ... is capable of assisting in the ascertainment of the meaning of [a] provision", in order to confirm that the meaning is the ordinary meaning conveyed by the text "taking into account its context in the Act and the purpose or object underlying the Act", or to resolve ambiguity or obscurity, or to determine the meaning of a provision when the ordinary meaning of the text leads to manifest absurdity or unreasonableness. A non-exhaustive list of potentially available extrinsic materials, including parliamentary records, is set out in s 15AB(2). That brings me to the Convention Debates, there being no reason to doubt that interpretative principles of the same kind as those set out in s 15AB are also relevant to the Constitution, making due allowance for the nature of the Constitution as an instrument of government and not an ordinary statute.
The Convention Debates
The public record of the Convention Debates is evidence of what some people, involved in the framing of the Constitution, said about various drafts of the instrument. It is a partial record of the drafting history of most of the provisions of the Constitution. It reveals what some people understood, knew, believed, thought, or intended about the proposed instrument, and the circumstances surrounding some of the events involved in its preparation. For the reasons already given, what the record shows about the subjective beliefs or intentions of some people may be interesting but, of itself, is not a relevant fact. Many people, in Australia and the United Kingdom, were involved, directly or indirectly, in decisions about the form of the Constitution. Not all of them participated in the Convention Debates. Furthermore, as at all gatherings of lawyers or politicians, those who had the most to say were not necessarily the best informed or the most influential. A search for the collective, subjective intention of the framers of the Constitution would be impossible, and the individual subjective intention of any one of them, if it could be established, would not be relevant, because it would not advance any legitimate process of reasoning to a conclusion about the meaning of the text. Nevertheless, the drafting history of the Constitution, including the record of the Convention Debates, may be capable of throwing light on the meaning of a provision. Whether this will be so depends upon the nature of the problem of interpretation that arises, the nature of the information that is gained from the drafting history, and the relevance of that information to the solution of the problem. Whether information is capable of assisting in the rational solution, by a legitimate process of reasoning, of a problem about the meaning of the text, depends upon the nature of the problem, and the nature of the information.
An example is given in Cheng v The Queen[30]. In the course of a debate, on 4 March 1898, there was an exchange between Mr Barton and Mr Isaacs concerning the drafting of what is now s 80, relating to trial by jury. The exchange was helpful in the resolution of the question considered in Cheng, not because it revealed what Mr Isaacs and Mr Barton believed the clause meant, (their belief was a legally irrelevant fact), but because it threw light on the purpose and object of the provision, a matter of importance to the process of legal interpretation. What was involved was a commonplace exercise in purposive construction. The record of what occurred was regarded, as long ago as 1901[31], as capable of assisting the ascertainment of the meaning of s 80. Earlier inhibitions about taking advantage of that assistance have now been abandoned. Reference to the record may be made, not for the purpose of seeking the subjective intention of people involved in the drafting, "but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation"[32]. The reference, in Cole v Whitfield[33], to "identifying the contemporary meaning of language used", that is, its meaning at the time of the Convention Debates, directs attention to the historical context in which language, the subject of a problem of interpretation, was used. For the reasons already given, an understanding of that context is often a valuable, and sometimes necessary, aid to deciding meaning. To deny the relevance of the contemporary meaning of the language used in 1900 would not only be contrary to what was said in Cole v Whitfield, it would be contrary to one of the most elementary principles of legal interpretation, which is that a text must be understood in its context.
[30](2000) 203 CLR 248 at 269.
[31]Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 808.
[32]Cole v Whitfield (1988) 165 CLR 360 at 385.
[33](1988) 165 CLR 360.
It is useful to consider the question that arises in the present case by reference to the interpretative approach taken in Cheatle v The Queen[34].
[34](1993) 177 CLR 541.
Cheatle v The Queen
Cheatle was a unanimous decision of the Court. The reasons were given in a joint judgment of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. The background to the case was that, at the time (1993), the States of South Australia, Western Australia and Tasmania, and the Northern Territory, like the United Kingdom, had legislation providing for the taking of majority verdicts in criminal trials. By contrast, in New South Wales, Queensland and, at the time, Victoria, jury verdicts at criminal trials were required to be unanimous. (Since then, Victoria has legislated for majority verdicts.) Section 80 of the Constitution requires the trial on indictment of an offence against any law of the Commonwealth to be by jury. Under ss 68 and 79 of the Judiciary Act 1903 (Cth), federal offences are frequently dealt with by State courts, following State procedures. The appellants were tried in South Australia for an offence against a law of the Commonwealth. They were convicted following a majority verdict of a jury. This Court upheld their submission that, by virtue of s 80 of the Constitution, the convictions were nullities.
The requirement of s 80 was that the trial "shall be by jury": no more, and no less. The appellants were tried, before a judge and jury, according to the practice and procedure then current in South Australia, and in a number of other comparable jurisdictions. It is now the procedure current in most Australian jurisdictions. If, in 1993, and without reference to the Constitution, one were to ask, as an abstract question, whether trial by jury could include provision for majority verdicts, the answer would have been yes. If, today, one were to ask the same question, relating it to modern practice in Australian jurisdictions, the answer would be the same. Indeed, if progress were equated with change, the progressive view would surely be that the practice of trial by jury can accommodate majority verdicts. That is the modern trend, and there has been pressure for change even in those jurisdictions that retain a requirement for unanimity. If the words "trial on indictment ... shall be by jury" were taken out of their context, including their historical context, and considered solely in the light of current community values as reflected in legislation, it is difficult to see how the words could be understood as denying the possibility of majority verdicts. Why the values reflected in the legislation of, say, New South Wales and Queensland, would prevail over those reflected in the legislation of Victoria and South Australia, is not apparent. To make that the test, however, would involve a cardinal error, as this Court held. There is a further difficulty to be addressed. Trial by jury is a procedure that has evolved, and continues to evolve. Some aspects of jury trial that applied in the nineteenth century, such as property qualifications of jurors or exclusion of women, no longer apply. No one supposes that s 80 requires that, in the case of persons charged with federal offences, jury trial must have all the characteristics of jury trial in 1900. The procedure is not frozen as at that date. Yet one aspect of the procedure, unanimity, was held to be immutable. In reaching that conclusion, the Court took account of three considerations: history; principle; and judicial authority. Those factors were taken into account in deciding whether "the requirement of unanimity is an essential feature of the institution of trial by jury adopted by s 80"[35]. To describe the requirement of unanimity as "an essential feature" of the procedure of trial by jury referred to in s 80 is to say that the meaning of "trial by jury" in that context excludes the possibility of majority verdicts. It is obvious that the meaning of trial by jury in other contexts does not, in 2004, exclude that possibility; and it did not exclude that possibility in 1993. Yet it did so, and continues to do so, in the context of s 80. As to history, the Court said[36]:
"It follows ... that the history of criminal trial by jury in England and in this country up until the time of Federation establishes that, in 1900, it was an essential feature of the institution that an accused person could not be convicted otherwise than by the agreement or consensus of all the jurors. It is well settled that the interpretation of a constitution such as ours is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of the common law's history. In the context of the history of criminal trial by jury, one would assume that s 80's directive that the trial to which it refers must be by jury was intended to encompass that requirement of unanimity."
[35](1993) 177 CLR 541 at 554.
[36](1993) 177 CLR 541 at 552.
I have already explained the sense in which the word "intended" is used in this context. It is not a solecism. It is a common term of judicial exposition, but not to be misunderstood as a reference to the mental processes of some individual, or individuals. Similarly, the emphasis on the context of legal history is orthodox. As to principle, the Court said that "the common law's insistence upon unanimity reflects a fundamental thesis of our criminal law, namely, that a person accused of a crime should be given the benefit of any reasonable doubt"[37]. As to authority, the Court's examination of judicial decision-making in Australia and comparable jurisdictions reflects a consideration noted above, which is that legal interpretation of a text occurs as part of a process in which consistency and respect for authority play a significant role. Unconstrained by the past, the Court in 1993 would have been obliged to acknowledge that, according to current Australian legal practice, which varied between jurisdictions, trial by jury might or might not require unanimity, and that the possibility of majority verdicts was not excluded from the concept of jury trial.
[37](1993) 177 CLR 541 at 553.
The reasoning in Cheatle is inconsistent with a theory of constitutional interpretation that denies the importance of historical context. Recognition of the importance of context in the interpretation of a text that was written a century ago is not inconsistent with the role of the Constitution as a dynamic instrument of government. It is no more than an application of orthodox legal principle.
If the plaintiff is right in this case, then, just as "trial by jury" in s 80 excludes a procedure that allows for majority verdicts, so "aliens" in s 51(xix) excludes people born in Australia.
The plaintiff's case
The argument for the plaintiff depends largely upon the proposition that the legal and historical context at the time of the drafting of the Constitution supports such a meaning. The argument fails, not in the major premise as to the relevance of the legal and historical context, but in the minor premise. The context, properly understood, does not support the conclusion for which the plaintiff contends. Rather, it supports the opposite conclusion.
In 1900, the major legal systems of the Western world adopted different approaches to the concept of alienage, and to correlative concepts of citizenship or allegiance. Broadly, the two leading theories were one which attached controlling importance to descent, and one which attached controlling importance to place of birth. The common law of England adhered to the second theory, but by 1900 the United Kingdom Parliament had intervened to modify the common law in significant respects. The questions of nationality, allegiance and alienage were matters on which there were changing and developing policies, and which were seen as appropriate for parliamentary resolution. The complex racial circumstances that resulted from Imperial expansion complicated the issues even further. The reasons of Gummow, Hayne and Heydon JJ demonstrate that, in the case of someone such as the plaintiff, an Indian citizen, born in Australia of Indian citizens, there was in 1900 no established legal requirement that she be excluded from the class of aliens. At the least, it was a matter appropriate to be dealt with by legislation. In Grain Pool of Western Australia v Commonwealth[38] the joint judgment, referring to "cross-currents and uncertainties" in the law relating to patents and registered designs at the time of Federation, said "it plainly is within the head of power in s 51(xviii) to resolve them". It seems to me that, given the legal context in which the Constitution was written, it is equally plain that it was within the head of power given by s 51(xix) for Parliament to decide whether a person such as the plaintiff should be treated as an alien. To state the position negatively, the legal context does not support or require a conclusion that "aliens" in s 51(xix) excludes the plaintiff.
[38](2000) 202 CLR 479 at 501.

It was argued that the record of the Constitutional Debates concerning a failed proposal to include in what is now s 51 a power to make laws with respect to Commonwealth citizenship in some way supports the plaintiff. The first thing to be noted is that there were two alternative, and inconsistent, proposals. In 1898, the chief proponent of the inclusion of a citizenship power, Dr Quick, said that he wanted to see either a definition of citizenship in the Bill or a power conferred on the Parliament to define citizenship[39]. The debate that followed related to both alternatives. A number of speakers raised various objections. Some regarded a definition of citizenship as unnecessary[40]. Some saw the proposal as cutting across the concept of state citizenship[41]. Mr Isaacs thought that "all the attempts to define citizenship will land us in innumerable difficulties"[42]. He expressed concern that the proposed amendment might deprive Parliament of the power of excluding people of certain specified races "who happened to be British subjects"[43]. The subject of race was of great concern to the framers, and their views on that matter were quite different from those which now prevail. To put the point at its lowest, a purpose of limiting Parliament's power to legislate for exclusion is not apparent. It is impossible to discern in the record of the Convention Debates any specific reason for the rejection of Dr Quick's ambiguous proposal. The discussion throws no light on the purpose or object of s 51(xix), except to the extent that it suggests that a broad, rather than a narrow, power with respect to aliens was in contemplation.
[39]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 2 March 1898 at 1751.
[40]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 3 March 1898 at 1782.
[41]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 2 March 1898 at 1764.
[42]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 3 March 1898 at 1797.
[43]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 3 March 1898 at 1788.
Conclusions and Orders
The argument for the plaintiff has not been made out. She is a citizen of a foreign state, the child of foreign citizens and, although born in Australia, she is an alien.
The first question in the case stated should be answered, "Yes". The second question does not arise. The third question should be answered, "The plaintiff".
McHUGH J. Is a child born in Australia an alien simply because the child's parents are aliens? That is the principal issue in these proceedings, brought on behalf of Ms Tania Singh, who was born in Australia but whose parents are "aliens" within the meaning of s 51(xix) of the Constitution. For her, the answer to this question is of momentous importance. If it is answered in the affirmative, the Minister for Immigration and Multicultural and Indigenous Affairs may proceed with her intention to deport her. Further, Ms Singh would have no legal or constitutional right to enter Australia in the future. Entry would be subject to the discretion of the Minister.
In my opinion, a person born in Australia is not, never has been and, without a constitutional amendment, never could be an alien unless that person falls within one of three categories. None of those categories applies to Ms Singh. Over 200 years ago, Sir William Blackstone said[44] that "[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such." Eight years after the colonies of Australia federated, Griffith CJ, Barton, O'Connor, Isaacs and Higgins JJ made the same comment about a person born in this country in a case where the father was a Chinese alien[45]. Ms Singh is a natural born "subject of the Queen" of Australia for the purpose of s 117 of the Constitution and, unlike an alien, entitled to its protection. If she is a natural born subject of the Queen of Australia, I do not see how anyone could find that she is an alien for the purpose of the Constitution. Furthermore, subject to presently irrelevant exceptions, birth in Australia made her a member of the Australian community and one of "the people of the Commonwealth" to whom the Constitution refers. The Minister has no power to deport Ms Singh. She is not an alien. The Minister has no power to act as if Ms Singh were not a member of the Australian community.
[44]Blackstone, Commentaries on the Laws of England, (1765), bk 1, c 10 at 361-362.
[45]Potter v Minahan (1908) 7 CLR 277 at 287, 289 per Griffith CJ, 294 per Barton J, 304-305 per O'Connor J, 308 per Isaacs J, 320 per Higgins J.
Section 51(xix) of the Constitution empowers the Parliament of the Commonwealth to make laws with respect to "aliens". By necessary implication or assumption, that grant of power recognises that an alien is a person who can be identified by reference to some criterion or criteria that exists or exist independently of any law of the Parliament or indeed of the Constitution itself. It is a corollary of that implication or assumption that the Parliament of the Commonwealth cannot itself define who is an alien. Thus, s 51(xix) implies or assumes that an alien can be defined – but not by the Parliament.
It must follow, then, that that paragraph also implies or assumes that, when the Constitution was enacted in 1900, the term had a meaning that would be understood objectively by the Australian people. The persons who fall within or outside that meaning may change over the years. Australia's evolving independence from the United Kingdom, its steps towards becoming a sovereign nation, the acceptance of the divisibility of the Crown and the evolution of the Crown from an Imperial to a national office have led to changes in the denotation of the term "aliens". Hence, a person born in the United Kingdom who is resident in Australia may now be regarded as an alien in Australia for constitutional purposes even though such a person would not have been regarded as an alien in 1900. It may even be that experience of political or social developments has given or may give insights that lead later generations of Australians to define the constitutional term "aliens" itself in a way that does not fully accord with its perceived meaning in 1900. But if the persons who fall within the denotation of the term change or the connotation of the term changes, it will be because of events that occur independently of laws made by the Parliament. To deny that proposition is to deny the binding effect – indeed the legitimacy – of the Constitution itself.
In the Australian colonies in 1900, the essential meaning – the connotation – of the term "alien" was a person who did not owe permanent allegiance to the Crown. And, subject to three exceptions, in 1900 and now, birth in Australia, irrespective of parentage, gave and still gives rise to an obligation of permanent allegiance to the sovereign of Australia. Even if it is permissible in 2004 to give the constitutional term "aliens" a meaning different from that which it had in 1900 – itself a contestable proposition – the Commonwealth has referred to no circumstance external to the Constitution which demonstrates that the essential meaning of the term in 1900 no longer applies. Indeed, even under a "progressivist" theory of constitutional interpretation, it is hard to conceive of the essential meaning of a constitutional term being entirely displaced and another meaning substituted for it[46].
[46]In 1900, for example, "marriage" in s 51(xxi) of the Constitution meant a voluntary union for life between a man and a woman to the exclusion of others. By reason of changing circumstances, it may now extend to a voluntary and permanent union between two people. But irrespective of changing circumstances, it is impossible to accept that a voluntary union for life between a man and a woman to the exclusion of others could be outside the term "marriage".
Under the law of India at the time of her birth, Ms Singh acquired Indian citizenship at birth because her parents are Indian citizens. However, it is of no relevance in determining the meaning of the constitutional term "aliens" that, under the law of another country, a person, born in this country, may be a citizen of, and owe obligations of allegiance to the sovereign of, the foreign country. Equally irrelevant to determining the meaning of "aliens" in s 51(xix) are concepts of nationality and citizenship. Discussion of those concepts in this constitutional context merely invites error. What was, and is now, central to the meaning of the constitutional term "aliens" is the existence of an obligation of permanent allegiance to our sovereign – once the Queen of the United Kingdom but now, according to the doctrine of this Court, the Queen of Australia. Because the Commonwealth contends that Ms Singh is an alien – and therefore within the operation of s 51(xix) – it must show that upon her birth, she came under no obligation of permanent allegiance to the Queen of Australia. Not only has the Commonwealth failed to show that that is the case, it has not attempted to, nor could it, do so.
The unanswerable logic of Ms Singh's claim that she is not an alien can be seen in the following polysyllogism[47]:
An alien is a person who does not owe permanent allegiance to the Queen of Australia.
A person who is born in Australia owes an obligation of permanent allegiance to the Queen of Australia.
Therefore, a person born in Australia is not an alien.
Ms Singh was born in Australia.
Therefore, Ms Singh is not an alien.
[47]A polysyllogism consists of two or more syllogisms in which the conclusion of one is the premise of the next.
The Commonwealth cannot defend its claim that Ms Singh is an alien unless it can successfully attack the validity of the premise in the prosyllogism[48]. The Commonwealth cannot succeed without demonstrating at least one of two propositions: first, that it is erroneous to say that an alien is a person who does not owe permanent allegiance to the Queen of Australia; and, second, that it is erroneous to say that a person who is born in Australia owes an obligation of permanent allegiance to the Queen of Australia until it is voluntarily abandoned.
[48]A prosyllogism is the syllogism that leads to the conclusion that forms the premise of the succeeding syllogism which is called an episyllogism.
Statement of the case
Tania Singh was born in Mildura, Victoria, on 5 February 1998 and has remained in Australia ever since. Ms Singh's parents are Indian citizens. In April 1997, they arrived in Australia with Ms Singh's brother. In July 1997, Ms Singh's father lodged an application for a protection visa. The Minister refused the application.
In July 2003, Ms Singh, by her next friend, filed a writ of summons in this Court seeking, among other relief, a declaration that she had acquired Australian citizenship by birth. She also sought declarations that s 10(2) of the Australian Citizenship Act 1948 (Cth) ("the Citizenship Act") was invalid and that s 198 of the Migration Act 1958 (Cth) ("the Migration Act") was incapable of being validly applied to her. Section 198 provides for the removal from Australia of "unlawful non-citizens", that is, non-citizens who do not hold a visa that is in effect. If s 10(2) of the Citizenship Act validly applies to Ms Singh, she is not an Australian citizen because neither of her parents is an Australian citizen or a permanent resident of Australia.
Subsequently, Kirby J stated a Case for the consideration of the Full Court of this Court. The first question in the Case is: "Is [Ms Singh] an alien within the meaning of s 51(xix) of the Constitution?" The second question is: "If the answer to 1 is 'No', is s 198 of the [Migration Act] capable of valid application to [Ms Singh]?" The third question is: "By whom should the costs of the case stated to the Full Court of this Honorable Court be borne?"
The relevant constitutional and legislative provisions
The Constitution confers no specific power on the Federal Parliament to make laws with respect to citizenship. This omission did not occur because the delegates at the Constitutional Conventions failed to consider the issue. On the contrary, they debated whether the Parliament of the Commonwealth should have the power to define citizenship. At the Melbourne Convention in 1898, Dr John Quick proposed that the Constitution should confer power on the Parliament to make laws with respect to citizenship[49]. But the delegates rejected the proposal. Mr Richard O'Connor QC said[50]:
"It appears to me quite clear, as regards the right of any person from the outside to become a member of the Commonwealth, that the power to regulate immigration and emigration, and the power to deal with aliens, give the right to define who shall be citizens, as coming from the outside world." (emphasis added)
[49]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 2 March 1898 at 1752.
[50]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 2 March 1898 at 1754.
Mr O'Connor's reference to immigration and emigration and aliens was a reference to what became ss 51(xix) and (xxvii) of the Constitution. Those paragraphs provide:
"51.The Parliament shall ... have power to make laws ... with respect to:
...
(xix) naturalization and aliens;
...
(xxvii) immigration and emigration".
Acting under the naturalisation and aliens power and, according to the argument of the defendants, an implied nationhood power, the Federal Parliament has enacted the Citizenship Act. Section 10 of that Act declares:
"(1)Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen.
(2)Subject to subsection (3), a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 [(Cth)] shall be an Australian citizen by virtue of that birth if and only if:
(a)a parent of the person was, at the time of the person's birth, an Australian citizen or a permanent resident; or
(b)the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia.
(3)Subject to subsection (5), a person shall not be an Australian citizen by virtue of this section if, at the time of the person's birth, a parent of the person was an enemy alien and the birth occurred in a place then under occupation by the enemy.
(5)Subsection (3) does not apply in relation to a person if, at the time of the person's birth, a parent of the person:
(a)was an Australian citizen or a permanent resident; and
(b) was not an enemy alien.
(6)A reference in this section to a permanent resident does not include a reference to a person who is, for the purposes of the Migration Act 1958, an exempt non-citizen."
Under the Migration Act, a person in Australia who is not a citizen and who does not hold a visa that is in effect is an "unlawful non-citizen"[51]. Under s 198 of that Act, an officer must remove such a person "as soon as reasonably practicable". If Ms Singh is an unlawful non-citizen within the meaning of the Migration Act, the Minister and her officers have a duty to remove her from Australia. Whether they can do so depends on whether the Parliament of the Commonwealth has the constitutional power to declare that a person, born in this country, is an unlawful non-citizen and to order the removal from Australia of such a person. In my opinion, neither the aliens power under s 51(xix) of the Constitution nor any other legislative power of the Commonwealth permits either step to be taken.
[51]Sections 13 and 14.
The defendants contend that the Parliament has a wide power to make laws "with respect to" "aliens". That contention is correct. But its limits are found in the constitutional term "aliens". A corollary of the implication that the power to make laws with respect to "aliens" necessarily assumes that the status of alienage can be identified objectively, that is, without reference to any federal law or to the Constitution, is that the Federal Parliament cannot itself define who is an alien[52]. Section 51(xix) therefore assumes that in 1900 the term "aliens" had an objective meaning that was understood by the Australian people. In that respect, the constitutional term "aliens" is like the constitutional term "marriage". It is for this Court and other courts exercising the judicial power of the Commonwealth to define the term. To hold that the Parliament of the Commonwealth can treat a child, born in Australia, as an alien can be justified only by resort to the erroneous view that somehow in some way Parliament has power to define the constitutional term "aliens". Acting under the aliens power, the Parliament can say that persons who are aliens are not aliens for the purpose of federal law. But it cannot say that they are not aliens for the purpose of the Constitution any more than it can say that people who are not aliens are aliens. Further, Parliament can say that aliens are to have the same rights and privileges as natural born Australians. Indeed, it can make any law "with respect to" "aliens". It is for the courts exercising the judicial power of the Commonwealth, however, to determine who is an alien for the purpose of the Constitution. The fallacy that runs throughout the submissions of the Commonwealth in this case is the notion that the Parliament can define the term "aliens" by picking and choosing among various jurisprudential theories concerning the indicia of nationality and alienage.
[52]cf Dixon J in Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29 at 81, speaking of the trade and commerce power in s 51(i) of the Constitution: "The subject of the power is, therefore, treated as a recognized phenomenon of national life existing independently of the Commonwealth."
What, then, is the meaning of the term "aliens" in s 51(xix) and how is it to be ascertained?
Constitutional interpretation
General issues pertaining to constitutional interpretation
There is no consensus as to any single approach to the interpretation of the Constitution. Commentators on the constitutional jurisprudence of this Court claim that all the methodologies that it has used are subject to criticism[53]. Current High Court jurisprudence on constitutional interpretation favours some form of textualism[54]. The basic premise of a textualist approach is that the text has ultimate primacy, although history and extrinsic materials may be relevant to explain the meaning of the text.
[53]See, eg, Selway, "Methodologies of Constitutional Interpretation in the High Court of Australia", (2003) 14 Public Law Review 234 at 250.
[54]Selway, "Methodologies of Constitutional Interpretation in the High Court of Australia", (2003) 14 Public Law Review 234 at 239; Kenny, "The High Court on Constitutional Law: The 2002 Term", (2003) 26 University of New South Wales Law Journal 210 at 214, 222.
Because the Constitution is contained in a statute of the Imperial Parliament and the people of the Commonwealth have agreed to be governed under the Constitution, it seems obvious that the best guides to its interpretation are the general rules of statutory interpretation[55]. The fundamental rule of statutory interpretation is that the meaning of an enactment is the meaning that its makers intended. Intention in the context of statutory interpretation is "an obvious fiction"[56]. But it is "a useful judicial construct because the judge is required to make the choices that best express the statutory text's meaning."[57] In the case of the Constitution, the intention is that of those who framed it[58]. Their intention is determined objectively. Their subjective beliefs and assumptions as to its meaning are irrelevant[59].
[55]Tasmania v The Commonwealth and Victoria (1904) 1 CLR 329 at 358-360 per O'Connor J; McGinty v Western Australia (1996) 186 CLR 140 at 230 per McHugh J; Eastman v The Queen (2000) 203 CLR 1 at 41-42 [134] per McHugh J; Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 426 [106] per McHugh J.
[56]Popkin, Statutes in Court: The History and Theory of Statutory Interpretation, (1999) at 211.
[57]Popkin, Statutes in Court: The History and Theory of Statutory Interpretation, (1999) at 211.
[58]Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 549 [35], 551 [40] per McHugh J; Eastman (2000) 203 CLR 1 at 41-44 [134]-[140] per McHugh J; Re Patterson (2001) 207 CLR 391 at 426 [107] per McHugh J.
[59]Re Wakim (1999) 198 CLR 511 at 549 [35], 550 [38], 551 [40] per McHugh J; Eastman (2000) 203 CLR 1 at 45-47 [145]-[147] per McHugh J.