Te, Dang, Ex parte - Re MIMA & Anor

[2002] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M25 of 2001

In the matter of -

An application for Certiorari, a Writ of Prohibition, Injunctions and Declarations against THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and ADMINISTRATIVE APPEALS TRIBUNAL

Respondents

Ex parte –

MENG KOK TE

Applicant/Prosecutor

Office of the Registry         
  Melbourne  No M118 of 2001

In the matter of -

An application for Certiorari, a Writ of Prohibition and Injunction against THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte –

DUNG CHI DANG

Applicant/Prosecutor

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 18 APRIL 2002, AT 10.17 AM

Copyright in the High Court of Australia

____________________

MR C.M. MAXWELL, QC:   May it please the Court, I appear with my learned friend, MR A.F.L. KROHN, in each of those applications.  (instructed by Access Law Lawyers)

MR D.M.J. BENNETT, QC Solicitor‑General for the Commonwealth:   May it please the Court, in each of those matters I appear for the respondent Minister, with my learned friends, MR C. GUNST, QC, MR W.S. MOSLEY and MR P.R.D. GRAY.  (instructed by Australian Government Solicitor)

Your Honours, there is one word in error in the case stated in the Dang matter.  Perhaps I should ask Justice Hayne by consent to make a minor amendment to it.  It is on page 7 of the case stated book in the Dang matter.  In paragraph 5 the word “Emergency” should be struck out.

HAYNE J:   I will make an order that the case stated be amended in that form.

MR BENNETT:   If your Honour pleases.

GLEESON CJ:   In the matter of Te there is a certificate from the Senior Registrar to the effect that she has received a letter from the solicitor for the second respondent, the Administrative Appeals Tribunal, advising that the second respondent submits to any order that the Court may make, save as to costs.  Yes, Mr Maxwell.

MR MAXWELL: Your Honours, as is apparent from the material filed, two applications are being heard together. Each is brought under section 75(v) of the Constitution. In the matter of Te the application is by notice of motion pursuant to Justice Hayne’s direction at 288 in the application book and the notice of motion is at 290.  In Dang there is a case stated by his Honour under section 18 of the Judiciary Act and an order nisi granted.  That is to be found at page 4 of the case stated book and the case stated itself is at page 7.

As your Honours will know from the statement of the issues in the consolidated outline on behalf of the applicants, the principal issue is the amenability of the applicant – and we refer to them interchangeably, except when otherwise indicated – to an exercise of the powers of the Minister under the Migration Act.  In the case of Te, the power of deportation under section 200; in the case of Dang, the power of cancellation under section 501(2). The amenability of each applicant to those powers depends upon whether, at the date of the relevant decision, the applicant was an immigrant within the meaning of section 51(xxvii) of the Constitution or an alien within the meaning of section 51(xix).

As to each applicant’s status as an immigrant, the issue is whether, at the relevant date, he had been absorbed into the Australian community.  That is a question of fact and degree.  There is no issue about the principle to be applied.  It was referred to by various of your Honours in the judgments in Patterson, to which detailed reference will be made.  That question of fact has not been explored because, given the view that in any event the aliens power applied, it was an unnecessary inquiry.

As to the applicant’s status as an alien in each instance, the issue is whether, as we have put it, at the relevant date he had ceased to be an alien by reason that he owed allegiance then to the Queen of Australia and to no other power and/or he was then a member of the community constituting the body politic of Australia and/or he had been absorbed into the Australian community, and each of those alternatives are set out in paragraph 3 of our primary outline.

Your Honours, will, I trust, have received a short reply that we delivered on Tuesday, to which I will come in the context of our argument that the granting of permanent residence visas to each of these applicants who was at the time a refugee was an offer of protection which was accepted, and in the acceptance each applicant assumed an obligation of allegiance, and we made that point I trust a little more clearly in the reply than we had in the principal outline, and I will come to that in due course.

There is in each matter a chronology.  There is no dispute, for the purposes of this proceeding, as to any of the relevant facts.  Your Honours will have seen attached to the reply an annotated version of the attachment to the principal submission in which we have set out for each applicant what we call the “indicia of absorption”.  The second version we trust is more helpful because it is cross‑referenced to the application book and the case stated book respectively.

KIRBY J:   There is no dispute about those facts on which you rely as to the indicia of absorption?

MR MAXWELL:   As we understand it, your Honour, no.

KIRBY J:   You have to secure an overruling of Pochi, do you not, to succeed in your argument?

MR MAXWELL:   Yes, your Honour.  Though I will be submitting in a moment that Patterson effectively overruled Pochi.

KIRBY J:   Patterson really did not have to go the extra mile that you have to go because it was dealing with persons who had the special argument of being a person who was a British subject.

MR MAXWELL:   Yes, your Honour. 

KIRBY J:   Your clients were not British subjects.

MR MAXWELL:   That is so.  If I might move immediately to the question of what Patterson decided.  In our respectful submission, what Patterson decided was this, that allegiance, not citizenship, is the touchstone for determining alien status.

KIRBY J:   There is only one reference to citizenship in the Constitution, is there not, and that is the disqualification that was considered in Sue v Hill?

MR MAXWELL:   Yes, your Honour.

KIRBY J:   There is no other reference to the concept and, indeed, we did not have a Citizenship Act until quite late in the history of the Commonwealth.

MR MAXWELL:   One of the critical aspects which comes through clearly in the judgments, both the dissenting and the majority judgments in Patterson, is the point your Honour has just adverted to: alien is a concept of our Constitution, citizenship is a concept of our statute law. Your Honours Justices Gummow and Hayne in the joint judgment put in these terms the proposition advanced by the prosecutor in Patterson, namely, at paragraph [223]:

alienage and citizenship . . . do not occupy the relevant universe of discourse –

That, we would respectfully adopt, though your Honours disagreed in the result, as being the proposition which the majority did endorse.  That is to say, it does not follow that because a person is a non‑citizen he or she is, by definition, an alien because you must be one or the other.

What Patterson held and why Nolan had to be overruled was that there is a category of non-citizen non-alien.  That is what your Honours held by majority Taylor was.  He was not a citizen and he was not an alien.

GUMMOW J:   I should make clear to you I do not regard that matter as closed.

MR MAXWELL:   I am indebted to your Honour.

GUMMOW J:   It seems to me absolutely fundamental.

MR MAXWELL:   It is absolutely fundamental and, in our respectful submission, there can be no conclusion, with respect, other than that is what this Court found because Mr ‑ ‑ ‑

GUMMOW J:   I am not so sure about that.  The Solicitor‑General goes into all of this.

MR MAXWELL:   Your Honour, we note with some surprise that less than a year after that decision was handed down, the Commonwealth is inviting this Court to reopen it and overrule it if it says what we say it says.

GUMMOW J:   The question really is whether it should have overruled Nolan.  Now, I will not hold you up.

MR MAXWELL:   Your Honour, in our respectful submission, this Court did overrule Nolan.  Four Justices of the Court addressed the question whether it should be overruled and each of them decided for reasons given that it should and it is no longer the law in this country, in our respectful submission, and we will go further and say that necessarily Pochi was at best left under a considerable cloud, if not necessarily overruled by that overruling.

GUMMOW J:   It seems to me what I was putting to you really can be put to one side because you have to go further in this case, and that is the real point.

MR MAXWELL:   Indeed, your Honour.  Plainly enough ‑ ‑ ‑

KIRBY J:   As I understand your argument, it is that until Taylor there was clear authority that there was a simple clear criterion for alienage, non‑citizen.

MR MAXWELL:   Exactly so.

KIRBY J:   After Taylor, whatever is the criterion, the base has shifted.

MR MAXWELL:   Yes, your Honour. 

KIRBY J:   It did not have to shift further than British subjects to resolve the issue of Patterson.

MR MAXWELL:   That is so. 

KIRBY J:   But you say, having shifted the basis, a new, stable basis must be found and therefore this case presents the obligation to find that new, stable basis. 

MR MAXWELL:   Exactly so. 

GUMMOW J:   And what is the stable basis? 

MR MAXWELL:   The starting point is that the obligation of allegiance can come into existence between a person and the Queen of Australia otherwise than by the taking out of citizenship.  The next question is, by what criteria is the establishment of that obligation to be determined – I am sorry, your Honour? 

GAUDRON J:   You say “can”.  Did Patterson go further than say at a certain time it could come into operation by that method in respect of a certain category of people? 

MR MAXWELL:   That is so, but ‑ ‑ ‑

GAUDRON J:   Yes.  Well, you have to go beyond that to say that since, when?  At all relevant times it has been possible and it continues to be possible? 

MR MAXWELL:   Your Honour, all I need to establish is that at the date of the relevant decisions the obligation of allegiance had been assumed by these individuals.  It is quite separate, of course, from the discussion which was necessarily engaged in for Patterson about the evolution of the Crown in right of Australia and its separation from Britain.  These are, plainly, individuals who have never been British subjects.  This is a different case.  But as his Honour Justice Kirby has put, we will be inviting the Court to explore this category of non ‑ ‑ ‑

GUMMOW J:   We do not set off on exploration tasks.  We respond to submissions and we are trying to find what your submission is.

MR MAXWELL:   Of course, your Honour.

GUMMOW J:   You can tantalise us with this notion of a stable basis.  The question is:  what is it?

MR MAXWELL:   In these cases ‑ ‑ ‑

GUMMOW J:   Bearing in mind that Patterson was, on one view of it, all about the changing nature of the British Commonwealth, to use that expression.

MR MAXWELL:   Your Honour, we put the stable basis on three bases in these cases as set out in our submission.  First, we say that each of these individuals renounced his allegiance to his country of birth by fleeing from a regime which could not guarantee him protection.

GUMMOW J:   How do notions of allegiance work with republican systems of government?  As I understand it, the whole notion of citizenship dates back to the American and French Revolutions, where they had to replace notions of allegiance which were monarchical with something else and they devised the notion of citizenship.  These gentlemen never owed allegiance to any sovereign, did they?

MR MAXWELL:   No, though your Honour will ‑ ‑ ‑

KIRBY J:   Although they would have been born during the reign of Prince Sihanouk.  Cambodia was not a separate colony of France; it was a protectorate.  So I think that is something we would not know without some detail.

GUMMOW J:   That is right.

MR MAXWELL:   But, your Honour, in our respectful submission, as a matter of principle this will not turn on whether a person came from a country which was a monarchy or a republic.  The concept of allegiance ‑ ‑ ‑

GUMMOW J:   The point I am trying to make to you is that notions of allegiance come out of English medieval feudalism.  That is where it comes from – monarchical feudalism.

MR MAXWELL:   With respect, we fully appreciate that.  As your Honours in the lengthy joint judgment explained, the concept has developed very significantly since the original notion of personal loyalty to a lord.  It became, and it was declared in the Court of Queen’s Bench in the 1880s, as your Honours pointed out, that it changed from a personal obligation or an obligation to the sovereign in his or her personal capacity to an obligation to the sovereign in his or her political capacity.  That is just one respect in which the discussion about allegiance in the 21st century is a different discussion from that which it would have been under more confined notions.

HAYNE J:   And it is pointed up by your proposition that each renounced allegiance to the country of his birth because the regime of the day would not protect him.

MR MAXWELL:   Exactly so.

HAYNE J:   But is allegiance concerned with allegiance to the government?  Is it more abstracted a notion than allegiance to whatever regime is in power?

GAUDRON J:   There is a further question of course too and that is, by whose law is this renunciation to be determined?  That was addressed in Sykes and the general principle of international law is that that is determined by the laws of the country of which the person was a citizen or to which he or she owed allegiance.

MR MAXWELL:   Yes, your Honour.

GAUDRON J:   So it is not a simple question, I should have thought.

MR MAXWELL:   No, and it is not necessary for our argument, with respect, that there have been no renunciation.

GAUDRON J:   Well ‑ ‑ ‑

MR MAXWELL:   It is not.  It happens to be the fact and it makes our cases a fortiori, but what is the critical question is whether it can be said of the person that he has assumed the obligation of allegiance and our submission puts it that it ‑ ‑ ‑

GAUDRON J:   And you put that as a one-way traffic as well.

MR MAXWELL:   Well, with respect, no we do not.  We gratefully accept the analysis of their Honours in the joint dissenting judgment, which points out that changes in the relationship of allegiance can occur either by the joint act of the parties to it, the subject and the sovereign, or by the unilateral act of either, which, apart from anything else, enables us to put to one side the old notion that allegiance was perpetual and the natural‑born subject could never give it up.  The concept of naturalisation scotched that notion 100 years ago.  It can be given up by a formal act.  We submit that one would expect to find a parallel notion of renunciation by conduct, but we accept – and our learned friends say just because you have renounced your citizenship of another country does not mean you have become a citizen of Australia.  Well, we accept that.  We do not assert that the renunciation somewhere else makes you a subject of the Queen of Australia.  There needs to be an act or a course of conduct of which it can be said that this person enjoys the protection of the Queen of Australia and owes her obligations of allegiance.

GLEESON CJ:   At which stage did your clients cease to owe allegiance to Cambodia or Vietnam respectively?

MR MAXWELL:   At the time they sought refuge in refugee camps or, alternatively, upon the grant of permanent residence visas to each of them, enabling them to come from the refugee camp to Australia.  At that point, we have argued in our submission that the self-description as a refugee is the explanation or the manifestation of the renunciation.

GLEESON CJ:   They are interesting alternatives, in practice, because if the former is correct, they would have been in the same situation even if they had been refused visas.

MR MAXWELL:   That is so.  Again, they were granted visas and that means that – and we will take your Honours in due course to the findings of fact in the Tribunal in each case ‑ each of these persons was a refugee at the time and, as I understand it, there is no dispute about that.  We do not say that an application for refugee status was made and determined in Australia.  There is no evidence that that occurred.  Nor is there any doubt but that they were refugees in the sense in which that term is understood ‑ defined in the Convention.  Your Honours will see in the material a question arises before the Tribunal “whether the protection obligations which Australia owed under the Convention still obtained as at the date of the Tribunal review?” Held:  “No they don’t.  Conditions have changed in Cambodia or Vietnam.  The protection obligation does not subsist.”

To come back to your Honour’s question.  The assertion of refugee status is the act of renunciation because it is a statement that, “I cannot rely on the sovereign government of my country to protect me.”  Indeed, that language is used in the Convention itself.

GLEESON CJ:   Why did they need visas?  I wondered if it was because they were aliens.

MR MAXWELL:   Well, they otherwise had no right to enter Australia.

GUMMOW J:   You seem to be asserting they did. Of course the Constitution ‑ ‑ ‑

MR MAXWELL:   As a matter of international law ‑ ‑ ‑

GUMMOW J:   Forget about international law, because the Constitution operated in some magical way.

MR MAXWELL:   No, your Honour.  We conceded before Justice Hayne that these people had not – I think we conceded they were aliens at the point of arrival.  We will seek to qualify that concession by the protection allegiance argument we have made in our reply.  We start with the proposition that Australia owed obligations of protection to these refugees under the 1951 Convention.  At that point there was an acceptance of what is described in the Refugee Convention in these terms, and it is in the material, a person is, “unable or . . . unwilling to avail himself of the protection of that country”. 

What is helpful in this analysis, in our respectful submission, is what Sir John Salmond, in the Law Quarterly Review article that we will take your Honours to, and the House of Lords in Joyce refer to as “the reciprocal obligations of protection by the sovereign to the subject and allegiance by the subject to the sovereign.”

KIRBY J:   Could I just ask a factual matter, that is partly a legal matter.  Was there any impediment to your clients becoming naturalised Australian citizens?

MR MAXWELL:   Not that I am aware of, your Honour, no.  No application was made.  At a certain point they may have, by their criminal convictions, become unable to satisfy the “good character” requirement.

KIRBY J:   Does one draw any inference at all from the fact that in the interval between their arrival as children and their evictions, that they could have signified their allegiance to the Queen of Australia and the people of Australia by becoming citizens but omitted, failed, refused to do so?

MR MAXWELL:   In our respectful submission, no.  One draws no inference because – and this comes back to the fundamental point – the assumption of citizenship – we have put this in terms in the outline – is a sufficient condition of allegiance but it is not a necessary condition, and that is what Patterson held.  If that is correct, then the non‑taking out of citizenship does not disqualify a person from being a subject of the Queen of Australia.

GAUDRON J:   But are we not a little bit off the track here?  From a constitutional point of view we are concerned with aliens and non‑aliens.  At least in the case of persons who are not and never have been British subjects is it not the case that it is well within the legislative power of the Parliament to decide and define who are and who are not aliens?

CALLINAN J:   That is what Mr Justice Barton said in Ferrando v Pearce.

GAUDRON J:   But is that not the case, that it has legislative power to define who are and who are not aliens?

MR MAXWELL:   Yes, but, with respect, to exclude from a statutory definition of aliens ‑ let me put that differently – to include within a statutory definition of aliens someone who is not is beyond power.

GLEESON CJ:   But if granting a visa to someone produces the result that they are not an alien, then the entire scheme of the Migration Act has miscarried, has it not?  Its long title is it is “An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens”.  Visas can be cancelled, can they not?

MR MAXWELL:   So they can and we rely here on the peculiar characteristic of a visa issued to a refugee because that is explicitly the affording of the Sovereign’s protection.  That is why you let the refugee in as a permanent resident.  It follows, in our respectful submission, inexorably, that the person to whom the Sovereign’s protection is afforded owes the reciprocal obligation of allegiance by reason of the protection given.

GLEESON CJ:   But it is not unconditional, is it?  Their right to remain here depends upon the subsistence of the visa.

MR MAXWELL:   That is so, but this is a ‑ ‑ ‑

KIRBY J:   But the visa is created by legislation and you have to say, by analogy with what was said by this Court in migration, that we are talking about a higher law, the Constitution, and just as it can be said that Parliament can define who is an immigrant, a point is reached under the immigration power when a person ceases to be within the reach of federal legislation and by analogy you say a point is reached where a person ceases to be within the power of the Federal Parliament as an alien.

MR MAXWELL:   Exactly so.

KIRBY J:   If a child came at age one with parents, in arms, to say that that person was an alien by the age of 90 strains ‑ ‑ ‑

MR MAXWELL:   Credulity.

KIRBY J:   ‑ ‑ ‑ imagination and, therefore, the question is, apart from the, as it were, anomalous case of British subjects, is there any instruction in the immigration decision of this Court that flows over to the aliens power, by analogy from the migration power?

Now, at some stage I would like to know how that principle of absorption into the community in respect of the migrations power came to be accepted as doctrine of the Court and whether that has any analogies for the aliens power.

MR MAXWELL:   Your Honour, if I might defer that, that is the third limb of our argument and perhaps to complete my ‑ ‑ ‑

GLEESON CJ:   But your proposition is, is it not, that once a person is granted a protection visa, that person ceases to be an alien?

MR MAXWELL:   Yes, your Honour, that is so.

KIRBY J:   But that is not your only argument?

MR MAXWELL:   It is not our only argument, indeed, and we ‑ ‑ ‑

GUMMOW J:   Right, but you still adhere to it.  You answer the Chief Justice’s question by saying, “I’ve got another argument”.

MR MAXWELL:   No, no, we absolutely adhere to it and we have endeavoured to make it as clearly as we can in the reply that it was said against us that you cannot establish allegiance by unilateral act.  That is wrong for the reasons that your Honours gave in Patterson.  It can be done unilaterally, but in this branch of our case, it is done bilaterally by the grant of the visa on the assertion of refugee status.  It is a bilateral relationship established then and there and, crucially, because these were permanent resident visas, by virtue of section 30 of the Migration Act, they operate indefinitely.  So this is not temporary local allegiance of the kind mentioned in the learned writings and in the submissions against us.  This is permanent and indefinite, lasting substantive allegiance by someone who this government or the Crown in right of Australia said at the time could come to live here permanently because he could not rely on his own country ‑ ‑ ‑

GUMMOW J:   The Crown in the right of Australia did not say anything.  What happened was there was a visa issued pursuant to the legislation, Parliament, by the executive under power conferred by statute of the Parliament.

MR MAXWELL:   Yes, your Honour.

GUMMOW J:   To which, of course, being a statue of the Parliament, the Crown had assented as part of that process.  The Crown in the right of Australia did nothing.

MR MAXWELL:   With great respect, the ‑ ‑ ‑

GUMMOW J:   You keep harking back to these medieval notions, you see.

MR MAXWELL:    ‑ ‑ ‑ the Minister of the Crown or his delegate who granted the visa ‑ ‑ ‑

GUMMOW J:   He was not the Minister of the Crown, he was the Minister of State under Chapter II of the Constitution which does not use that expression. The Minister of State for the Commonwealth.

MR MAXWELL:   Your Honour, I mean no more than that but if ‑ the executive power of the Commonwealth resides in the Governor-General but it is exercised by the Prime Minister and his ministers as a matter of constitutional fact ‑ ‑ ‑

GUMMOW J:   That was not happening here.  A power was conferred on the Executive Government by the Parliament.  There is no prerogative involved.

MR MAXWELL:   I accept that, with respect.

GAUDRON J:   It was a power to grant a visa which, even at the time, could be cancelled if certain things happened.

MR MAXWELL:   I accept that.

GAUDRON J:   Now, that is a bit different from the sort of relationship that exists in the case of citizens and the nation.

MR MAXWELL:   But citizenship can be renounced or lost and it is only as permanent ‑ ‑ ‑

GAUDRON J:   Yes, but under different conditions.

MR MAXWELL:   But, with respect, once it is conceded that citizenship is not inalienable, then the citizen is in no stronger position than the recipient of a protection visa who has permanent residence.

HAYNE J:   If you accept that the visa can be cancelled, as I understand you do, is that right, what follows then?

MR MAXWELL:   With respect, subject to this, the power of cancellation will only extend if the head of power is available.  On our argument, the aliens power is not available by virtue of the relationship then and there created.

HAYNE J:   That seems to be a submission that the visa cannot be cancelled.  Now, if that is your position, I want to know it.  If it is not ‑ ‑ ‑

MR MAXWELL:   I accept, with respect that it is the corollary of the position that under the aliens power it cannot be.  The person would remain an immigrant until absorbed.

HAYNE J:   So there will come a point where the visa cannot be cancelled?

MR MAXWELL:   That is so, there will and, in our respectful submission, there is no anomaly in that.  If the person has become absorbed in the way in which this Court since the 1930s has accepted a person can be, then they are no longer to be treated as an immigrant for constitutional purposes.  In our respectful submission ‑ ‑ ‑

GLEESON CJ:   Or an alien?

MR MAXWELL:   I beg your Honour’s pardon?

GLEESON CJ:   Or an alien?

MR MAXWELL:   We submit, in this case, though it has been rejected before in Pochi, that the concept of absorption, which is a useful shorthand, can apply with equal force in the area of alienage. 

GLEESON CJ:   Well, now, the name of Mr Pochi reminds us of what happened to people of Italian birth, many of whom, I would have thought, had been absorbed into the Australian community during World War II.  Were they interned on the basis that they were aliens? 

MR MAXWELL:   I do not now, your Honour. 

GAUDRON J:   No, there were some Australian citizens of Italian origin who were interned. 

KIRBY J:   It was not a particularly happy precedent. By the way, section 64 of the Constitution refers to “the Queen’s Ministers of State for the Commonwealth”. So the Queen is in there and various other parts of the Constitution.

MR MAXWELL:   Your Honour, it may have been in the special area of enemy aliens but in ‑ ‑ ‑

GLEESON CJ:   What about confiscation of property? 

MR MAXWELL:   I simply do not know the circumstances, your Honour, but in the case of Mr Pochi, he was, as the findings of this Court show, wholly absorbed into the Australian community. 

GLEESON CJ:   Yes, and it was held he was an alien. 

MR MAXWELL:   He had been eligible for citizenship but had not taken it out.  He was held to be an alien, that is so, because – and I will take your Honours to the passage – he had not made the formal act of assuming citizenship and declaring allegiance. 

GLEESON CJ:   Which was not his fault.  It was somebody else’s fault.  His case was much stronger than the case of your clients. 

MR MAXWELL:   In our respectful submission, until Patterson that might have been so but, in our submission, what follows from Patterson is that the categorical rejection of any argument based on anything other than citizenship must now be re-examined.  Our submission is that the notions of membership of the Australian community and membership of the Australian body politic carry with them the same notions that absorption, in the immigration context, carries with it.  So that your Honours are clear as to the parts of our submission, the first is renunciation and the offer of protection carrying with it the obligation of allegiance.  That flows from the refugee status. 

HAYNE J:   Just before you go on with that – and this is tied up with visa.  Let us not run away too far from what a visa is.  The Migration Act tells us what a visa is in section 29.  It is a permission granted by the Minister to do either or both of: 

(a)  travel to and enter Australia;
(b)  remain in Australia. 

It is permission granted by the Minister to “a non-citizen”.  Now, what is it that you say we should take from the grant of a visa? 

MR MAXWELL:   If your Honour would go to section 30(1), we say that in these cases, this was a grant of permission to remain in Australia indefinitely. 

HAYNE J:   That is, without limit of time. 

MR MAXWELL:   Yes, your Honour. 

HAYNE J:   Specified at the time of grant. 

MR MAXWELL:   Yes, and it was a grant to non-citizens, plainly. 

HAYNE J:   Yes, of permission to remain. 

MR MAXWELL:   Yes, your Honour. 

HAYNE J:   And what follows from that? 

MR MAXWELL:   That there are many permanent residents of Australia who have just that permission and it enables them to live out their lives in Australia, and that is ‑ ‑ ‑

HAYNE J:   So that may require identification of the radical difference between permanence and indefinite. 

MR MAXWELL:   Your Honour, I think there is no contest of fact that these were permanent residence visas.  We have made that point in footnote 1 to our reply.  Each of them was granted permanent residence.  That is not in dispute. 

GAUDRON J:   Did that mean that should they leave Australia they were automatically entitled to re-enter? 

MR MAXWELL:   Indeed, Mr ‑ ‑ ‑

GAUDRON J:   Or that they were automatically entitled – not that they could under certain circumstances, but automatically entitled? 

MR MAXWELL:   I do not know, your Honour.

GAUDRON J:   I would have thought one critical difference is that a non‑alien – call it a citizen or a non‑citizen alien – was automatically entitled to re‑enter Australia if he or she departed its shores.

MR MAXWELL:   In the case of ‑ ‑ ‑

GUMMOW J:   So much, I think, is indicated in Air Caledonie.

MR MAXWELL:   I am indebted to your Honour.  In the case of Te, he has never left.  In the case of Dang, he left twice, as we say in the chronology and in annexure A, as indicia of absorption.  He left twice for short periods, returned each time under the protection of a certificate of identification from the Australian Government.  So in fact that question arose for one of the applicants and he was able to leave and return twice, and we say of each of them that he has conducted himself at all times since his arrival on the basis that he treated and treats Australia as his home.

GLEESON CJ:   Yes, but the question is one of right.  Suppose he had left Australia and gone to fight in Afghanistan for a group of insurgents.  Could he have been refused re‑entry into Australia?

MR MAXWELL:   I will need to seek instructions.  I am not able to answer your Honour’s questions as to the full rights attaching to a permanent resident visa.  I would be surprised to find that someone who had been granted such a visa could not ordinarily leave and return, subject to some exceptional circumstance where some power of cancellation might arise, but I would assume – and I will seek instructions – that if you are a permanent resident, that does not mean you have to stay within the shores the rest of your life; you can come and go.  I think I am right in saying that if you are abroad for more than five years, you lose your permanent residency but, short of that, you can come and go.

GAUDRON J:   That is the difference, is it not?  That is a significant difference.  I should have thought a citizen and a non‑alien would have to be allowed back in, no matter how long they had been outside the country.

MR MAXWELL:   I am sure your Honour is right about a citizen, that one could be abroad a very long time and still assume and assert Australian citizenship and expect to be admitted back on an Australian passport at the end of ‑ ‑ ‑

GAUDRON J:   As of right.

MR MAXWELL:   Yes, your Honour, I accept that.  Our respectful submission is that that is a difference but not a material one for the purpose of deciding whether the non‑citizen owes allegiance to the Queen of Australia, which is the foundation, in our submission.

GAUDRON J:   But, you see, that assumes, as I put to you earlier, a one‑way street.  I should have thought non‑alien status involves a two‑way street.  It involves obligations on the part of the nation state, I will call it, as well as obligations on the part of the non‑alien.

MR MAXWELL:   Yes, your Honour.  In answer to your Honour’s question, I would like to take your Honours now to a part of the Salmond article which we have not given your Honours.  Before I do that, if I might just attempt again to define our three heads of argument.  The first is renunciation, the conferral of protection and the reciprocal obligation of obedience.  The second is membership of the Australian body politic - a phrase of your Honour Justice Gaudron – and the third is allegiance by conduct - call it absorption.  We will deal with each of those in turn.

Now, your Honours, in our list of authorities we have given you a reference to the second part of this article.  If your Honours have that, the second part, in 18 Law Quarterly Review.  I take your Honours first to the statement in the first paragraph under the heading “II  Nationality in English Law”.  The learned author says in the sentence beginning:

This use of subject, as the modern equivalent of citizen, is awkward, because –

and this is the important part –

in a wider, earlier, and still permissible sense, subject includes any person subject to the power and jurisdiction of the state, and therefore a resident alien no less than a subject in the narrower sense.

And the discrimen, as this Court said in Patterson, is whether the person is a subject of the Queen of Australia, and Mr Taylor was, though he was not a citizen.

HAYNE J:   What do you make of the next sentence, the one after you stopped reading, the distinction between a “natural subject” and an “alien subject”?

MR MAXWELL:   Yes, your Honour, and that picks up on what is discussed at length in the article, which is the difference between local allegiance and permanent allegiance.

GLEESON CJ:   But in the wider sense there referred to, a resident alien who is a subject could include an illegally‑resident alien, could it not?

MR MAXWELL:   That is so, and we accept that mere local allegiance, of the transitory kind of the non-resident alien who owes allegiance elsewhere, is not sufficient allegiance to establish non-alien status in these cases.  But we rely on this simply for the notion of the term “subject”, if I might say in answer to your Honour Justice Hayne.  The concept of subject which is so important in Patterson is here described, last three lines of the page:

connotes the burden of a common subjection to one lord and king.

The passage that we referred to, in particular, starts at the foot of 51 – and this was in relation to a question your Honour Justice Gummow asked me.  At the foot of 51 the author refers to allegiance taking:

on its modern meaning, and came to signify exclusively the fidelity due from a subject to his king, he being the only person by whom fidelity of so absolute a sort could be lawfully demanded.

And further down, in about the middle of that next paragraph, the sentence begins:

When, however, allegiance came to mean specifically fealty owed to the king, as contrasted with that owed to other lords, this distinction was forgotten, and all who were ad fidem regis were said to owe him allegiance, whether they were aliens or subjects.

Now, we do not shrink from the point your Honour was making.  It is said of aliens that they owe allegiance.  But in Patterson this Court has identified allegiance, not citizenship, as the key criterion and one starts with the position that an alien from the moment of arrival owes allegiance to the Queen of Australia as a subject in the realm.  He goes on:

Hence it became necessary to distinguish between two sorts of allegiance – that which is personal, permanent, and absolute, as being due from natural subjects, and that which is merely local, temporary, and qualified, as being due from aliens by reason of their residency, and which in the strict theory of feudalism is not truly allegiance at all.

The article then deals with how British nationality could be acquired.  It makes the point – if your Honours would then go to 56 and 57, “Title by naturalization” and it notes at point 7 of the right‑hand page, 57, the old rule:

Once a subject always a subject. The Naturalization Act 1870, has, however, all but abolished this principle of indelible nationality –

and your Honours will see at about point 2 of the page, one of the ways in which a person might cease to be a British subject was:

(4)  Declaration of alienage.

We refer to that not because we say our clients declared their alienage from their own countries but by their conduct demonstrated their alienation from their own countries.  In other words, if you could declare your alienage by a formal Act or document in our respectful submission it must be possible to renounce your allegiance and implicitly declare your alienage.

GAUDRON J:   Yes, but are we concerned with Australian law?  Let it be assumed, although I am not entirely sure that it is right, that an Australian citizen can unilaterally denounce citizenship.  I am not sure that that is right.  It may be but I am not sure.  Let it be assumed that that is so.  There is still the question in each of these cases whether that could be done under the laws of Cambodia and Vietnam.

MR MAXWELL:   Your Honours, as we have made clear in our paragraph ‑ ‑ ‑

GAUDRON J:   I suppose you can say in answer to that, “Well, there being no evidence to the contrary we will assume the Court must proceed on the presumption that it is the same as Australian law”.  I am by no means sure that Australian law would permit of unilateral renunciation of citizenship.

MR MAXWELL:   In our respectful submission, the more logical approach would be for this Court to ask the question ‑ ‑ ‑

GAUDRON J:   Let us look at the legal approach.

MR MAXWELL:   The legal question for the Court is whether this person owes allegiance to the Queen of Australia.

GAUDRON J:   Ultimately, but at the moment you are talking – I understood you to be talking about renunciation.

MR MAXWELL:   Yes, your Honour, but this Court or any court can examine the circumstances of the person’s arrival in order to decide whether, as a matter of Australian law, that person should be regarded as retaining allegiance to a foreign power.  That question was considered in Patterson:.  “Did Mr Taylor owe allegiance to a foreign power?”, and the view was taken that, at a certain point at least, he did.

KIRBY J:   Is there a provision under the Citizenship Act for renunciation of Australian citizenship?

MR MAXWELL: I will ask my learned junior to find it. Section 18, “Renunciation of citizenship”.

GAUDRON J:   Unilateral?

MR MAXWELL:   Yes.

may lodge with the Minister a declaration in the prescribed form renouncing the person’s Australian citizenship.

That would correspond, we would expect, with what Professor Salmond described as a declaration of alienage.

GUMMOW J:   Can we just go back to Salmond’s article, page 1, the second paragraph.  Fifth sentence:

The notion of the state as an incorporate community is to this day unknown to English law; there is no respublica of which men can be members or citizens.  The Crown is a corporation in law; but the nation, the aggregate of the subjects of the Crown, has no recognized legal identity or personality.

I do not think that can be translated to Australia, can it, in the light of section 3 of the British Constitution Act itself, which provided for the uniting in a Federal Commonwealth under the name of the Commonwealth of Australia.  It brought into existence just the body politic which the English to this day are still eluded by.  They have to face up to it now with devolution of course.

MR MAXWELL:   Yes, your Honour.  I am going to come to Part I of this article which puts an altogether different view about the concept of state.

GUMMOW J:   Notions of allegiance and feudalism and so on, because there is no other state, there is not a respublica, really does not work on the Constitution.

MR MAXWELL:   With respect, your Honour, he goes on further down the page ‑ ‑ ‑

GUMMOW J:   Because – just let me finish.

MR MAXWELL:   I beg your Honour’s pardon.

GUMMOW J:   You have also the States. They are called into existence by the Constitution, as well, and they sue one another. All sorts of things go on.

MR MAXWELL:   Yes, your Honour, but it ‑ ‑ ‑

GUMMOW J:   We do not say the Queen in the right of the Commonwealth sues the Queen in the right of New South Wales in this Court. We do not say people have allegiance to the Queen in the right of New South Wales as against the Queen in the right of Australia and so on and so forth. Now, true enough, the Constitution prescribes in its schedule the taking by certain officers of oaths to someone who no longer exists actually, namely, the King or Queen of the United Kingdom, of Great Britain and Ireland, but there is that anomaly.

MR MAXWELL:   Yes, your Honour.

KIRBY J:   But in the one reference to citizenship in section 44(i) the disqualification is expressed in terms of a person who:

Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen –

and that seems to be by way of contrast to somebody who is under an acknowledgment of allegiance, obedience, or adherence or is a citizen of Australia because they are put outside the group of people who can be members of the Federal Parliament of Australia.  So, there does seem to be at least collateral reference to some form of obligation or duty to a foreign power, as distinct from to Australia.

MR MAXWELL:   Yes.

GUMMOW J:   You also refer to section 117, of course.

MR MAXWELL:   Yes, your Honour.  But your Honours Justices Gummow and Hayne in Patterson characterise the relationship of allegiance in quite general terms and, with respect, in our submission, properly so.  This is not a State specific concept.  This is a general notion which has characteristics of the kind your Honour has identified.  I am referring here to paragraphs [224] to [225].  We have set out the key propositions in paragraph 15 in our submission, but they are these:  questions of alienage and allegiance require identification of a relationship to which there are two parties, the individual and the sovereign.

The notion of allegiance examines the relationship from the point of view of the individual.  Does that individual owe that allegiance by reference to duties and obligations which the individual may owe to that sovereign power?  Becoming or ceasing to be an alien will not, in every case, depend on joint action and either the individual or the sovereign power may so act that an individual who was not an alien becomes one and, in consequence, does not therefore owe allegiance to that sovereign power.  That is what we are saying in respect of renunciation.

There was an act by the Government of Vietnam and of Cambodia which was to imprison or expel the individuals which was to say, “You no longer have the protection of the laws of this country”, and the person in fact also acted to assert refugee status, each of them thereby severing that relationship.  We ask this Court to apply that principle as a matter of Australian law and say, unequivocally, there was a renunciation by those individuals of any allegiance they hitherto owed to the sovereign power of Cambodia or Vietnam, as the case may be.  This is just a particular instance, in our submission, of the principles which your Honours defined so lucidly.

KIRBY J:   But there is one step which is renunciation, and let that be assumed for the moment.  There is another step of joining the Australian community.

MR MAXWELL:   Exactly so.

KIRBY J:   The Constitution envisages that step by the power given to the Federal Parliament to make laws with respect to naturalisation.  There are such laws and those laws were available to your clients and they did not take that step.  So you have to, as it were, say, “That is only one way to join the Australian community.  There are other ways, either:  one, by being accepted as a permanent resident” – that has difficulties because of the distinction in federal law between permanent resident and citizen – “two, by being a displaced refugee”.  That has difficulties because there are lots of displaced refugees in the world and it might make some people even less willing to make them permanent residents and citizens of Australia if they thought that everybody who came here and got a refugee protection visa is somehow given membership of the Australian community as such.  Then there is thirdly, joining the Australian community by taking an oath, acknowledging it publicly, going through a public ceremony of naturalisation.  Your clients could have done that but they did not do it.

MR MAXWELL:   Fourthly, on our argument there is absorption.

GLEESON CJ:   Were your clients entitled to vote?

MR MAXWELL:   No.

KIRBY J:   I do not quite understand why you have started with what seems to be a rather difficult argument for you to advance when lying very deeply in the doctrine of this Court is the point that the federal head of power – you just can forget about the legislation because it has to find a root in the power – has for 70 years accepted a point is reached where it is lost.  Instead of exploring that, as it were, as the fundamental issue once you move from the stable ground of citizen and non‑citizen, you have gone into this refugee issue, which is a much more difficult path for you to tread, it would seem to me.

MR MAXWELL:   I take your Honour’s advice and move on in a moment.

KIRBY J:   No, I am not giving advice.  I am just saying if you are thinking of the concept here, essentially really Justice Gaudron put her finger on it in Patterson in a way that I did not because I did not feel I had to.  I was dealing only with the particular case of the British subject in the anomalous situation.  If the concept is membership of the Australian community and that if you come here as a baby and by the time you are 90 you are such and you cease to be an alien, just as you have ceased to be a migrant, then that may be a more stable foundation than issues of allegiance which, as Justice Gummow points out, raise all sorts of feudal and medieval problems.

MR MAXWELL:   Again, with respect, we do not accept that last proposition.  The groundbreaking significance of Patterson was that it is a modern analysis of allegiance.

GLEESON CJ:   I may have misunderstood, but I thought that the concept referred to in Patterson was membership of the Australian body politic.

MR MAXWELL:   That is her Honour Justice Gaudron’s ‑ ‑ ‑

GLEESON CJ:   Yes.  If these adults were members of the Australian body politic, how come they were not entitled to vote?

MR MAXWELL:   Your Honour, at that point I will do what I have been ‑ ‑ ‑

GAUDRON J:   And how come they needed a visa?  That seems to me to be the critical thing.  If you need a visa, you are not a member.

MR MAXWELL:   We do not know what, with respect, Chief Justice Gibbs meant by “full member”, which is relied on by ‑ ‑ ‑

GAUDRON J:   I would have thought it meant you could move around this country without being at risk of being arrested – or “detained” is perhaps a better word – for not having a visa to be here.

KIRBY J: But visas are granted under legislation made by Parliament. We are at a higher level. We are at the level of the Constitution. That is the power. We have to decide what the power involves, not what Parliament said. I think Parliament did whip a visa or purported visa on Mr Taylor and other people. I think there were such visas purportedly imposed on people who came here as British subjects and who were entitled to vote and who the Court held were not aliens.

MR MAXWELL:   Yes, your Honour.  If I might just respond to your Honour Justice Gaudron.  With respect, the question of the visa and the question of membership of the body politic are separate.  These individuals were not members of the body political on arrival.  On our argument based on protection to refugees, they had ceased to be aliens by that criterion, but not by having become members of the body politic. 

It is to that point that I would now wish to draw your Honours’ attention to Part I of the Salmond article which is not on our list but will be handed up now because Professor Salmond provides a very succinct explanation of the two classes of membership of the body politic.

GLEESON CJ:   Thank you.

MR MAXWELL:   Before I take your Honours to this, if I might respectfully remind you that what her Honour Justice Gaudron has said in Patterson, picking up what was said in the dissenting judgment in Nolan was this:

an alien is “a person who is not a member of the community which constitutes the body politic of the nation state from whose perspective the question of alien status is to be determined”.

Our submission is that each of these individuals was a member of the community constituting the body politic of Australia at the relevant date, notwithstanding that he was not a citizen.  That is our paragraph 20.

Professor Salmond talks here about the concept of a state and says in the third sentence:

In all civilised communities the title of state-membership is twofold, and the members of the body politic are of two classes accordingly.  The two titles are citizenship and residence, the former being a personal, the latter merely a territorial, bond between the state and the individual.  the former is a title of permanent, the latter one of temporary, membership of the political community.  The state, therefore, consists, in the first place, of all those who by virtue of this personal and permanent relationship are its citizens or subjects, and , in the second place, of all those who for the time being reside within its territory, and so possess a temporary and territorial title to state‑membership.

But, importantly, he goes on:

Both classes are equally members of the body politic, so long as their title lasts; for both have claims to the protection of the laws and government of the state –

and it is protection the reciprocal of which is allegiance.  Accordingly, he says:

to such laws and government both alike owe obedience and fidelity.

GUMMOW J:   Yes.  What all this demonstrates to me is the notion alienage and allegiance do not sit very happily together as the one being an explanation of the other.  It seems to be undoubtedly true that Joyce was an alien.  Everyone assumed he was.  Nevertheless, he owed some allegiance and that was enough to attract the Statute of Treasons of 1349 to hang him.

MR MAXWELL:   That is so and not because of his local temporary residency.

GUMMOW J:   No, because he had been given a passport.

MR MAXWELL:   He had been given a passport and he was given significant privileges of protection of the British Crown abroad which ‑ ‑ ‑

GUMMOW J:   Yes, but you are nevertheless still an alien.  He was an Irish citizen, was he not?

McHUGH J:   American.

GUMMOW J:   American, yes.  That was the whole problem.

MR MAXWELL:   Your Honours, it is the foundation stone of our argument on this part, that allegiance, not citizenship, is the touchstone of non‑alienage.  We understand that to have been the ratio of the majority in Patterson. 

GAUDRON J:   Yes, but ever if that be assumed, allegiance, as I think is clear from the oath that now attends the citizenship ceremony, is not the same sort of allegiance that one is talking about or one was talking about either in feudal times or as it has developed in a context in which, as Justice Gummow has pointed out, there is no populus Britannicus, whereas there is a concept, the people of Australia united in one indissoluble Commonwealth.

MR MAXWELL:   If I might, with your Honour’s introduction, read the form of the pledge as it now stands. It is Schedule 2 to the Citizenship Act: 

From this time forward, under God,
I pledge my loyalty to Australia and its people,
whose democratic beliefs I share,
whose rights and liberties I respect, and
whose laws I will uphold and obey. 

GAUDRON J:   Now, in the case of your clients, the one thing they did not do was uphold and obey the laws. 

MR MAXWELL:   But there are lots of citizens who do not, and they do not lose their ‑ ‑ ‑

GAUDRON J:   No, they do not.  One aspect of being a citizen is that you can acquire it without such a pledge.  You can acquire it without naturalisation, and having acquired it without naturalisation, you do not need to make that.  But you have to say, you can acquire non-alien status by a third route, which does not involve being born a citizen, does not involve being naturalised as a citizen, but involves something less than being naturalised. 

MR MAXWELL:   Or something different from it. 

GAUDRON J:   Or something different from, which seems to me a very difficult proposition to advance when the Constitution sets up aliens and naturalisation almost as the antithesis of each other.

HAYNE J:   And as a distinct head of power from that of immigration and emigration. 

MR MAXWELL:   I do not, with respect, mean to disregard the force of what your Honour puts to me.  We have addressed the point, as his Honour Justice Hayne made it, in the preliminary application about what content is there in the aliens power if we apply a test of absorption, and we have endeavoured to deal with that in our written submission. 

CALLINAN J:   On the question of absorption, why should you regard a person who has persistently offended against the law, who has not been absorbed, therefore, within the lawful community, as being absorbed.  In Mr Taylor’s case, I think he had lived for many years in Australia without any convictions.  Is that right?  I think there was only one conviction with which the Minister was concerned there.  I think that is right, is it not?  Now, why cannot you say that he is not absorbed within the community?  He has been a repeated offender – and I think it applies in both cases, more particularly with Dang.  Assuming that the absorption point is a good point, assuming it is, why should we treat a person who is a persistent offender, who has shown a complete disposition not to be part of the lawful community, as being absorbed in it? 

MR MAXWELL:   In our respectful submission, because that is not the criterion of absorption. 

CALLINAN J:   But why should it not be? 

MR MAXWELL:   With respect, it might be, but ‑ ‑ ‑

CALLINAN J:   What case says it cannot be? 

MR MAXWELL:   The language used in the immigration cases is along these lines - this is from Walsh and Johnson: 

persons who had made their homes in Australia and become part of its people –

alternatively, “a member of the Australian community”, or, as Chief Justice Knox said: 

“fairly to be considered as one of the people of the Commonwealth, and whether, notwithstanding any personal absence from Australia, he can justly and in substance claim to regard this country as a place of habitation or general residence which he had never abandoned.” 

CALLINAN J:   Not a place for criminal activities. 

MR MAXWELL:   And Mr Pochi – although the point was not raised then, your Honour – was before the Court on an issue of deportation because he had committed a criminal offence.  The learned Chief Justice did not hesitate to find that he had been completely absorbed into the Australian community ‑ ‑ ‑

CALLINAN J:   Yes, but I do not think the point, as you concede, was raised.  That does not really deal with the point, just to say that other cases have not touched on it. 

MR MAXWELL:   We respectfully submit and we accept the challenge of defining what the criterion of absorption is, but just as it should not be necessary to show exceptional community spirit in order to be absorbed ‑ you do not have to be a volunteer firefighter or lifesaver to be a full member of the Australian community ‑ ‑ ‑

CALLINAN J:   No, just obey the laws. 

MR MAXWELL:   So there should not be disqualifications for being unemployed, for example, that you are no less a member of the community as an unemployed person or even as someone who ‑ ‑ ‑

CALLINAN J:   But that is not a good analogy.  There must be a big difference between persistent offenders and people who merely are not able to participate, for various reasons, in various activities in the community.

MR MAXWELL:   Yes, your Honour, but, in our respectful submission, unless one had an absolute rule that any criminal conviction disqualified you from the absorption admission that we are arguing for ‑ ‑ ‑

CALLINAN J:   No, I am not suggesting that.  I am suggesting that the disposition which can be discerned from repeated offending might be totally inconsistent – that is all I am suggesting – with absorption.

MR MAXWELL:   Your Honour, it might be the case, and I am not suggesting that it is so here, that a refugee arriving in circumstances such as these individuals did, has personal difficulties which lead to drug use, which lead to offending, are common phenomenon in our community, in respect of which one would be judging less harshly than in respect of some other class of criminal behaviour.  In other words, it would ‑ ‑ ‑

CALLINAN J:   No, that is reflected in the penalties that are being imposed and we can look at them, on any view.  Indeed, it is not argued here that these are not serious offences within section 203, is that not right?

MR MAXWELL:   That is so.

CALLINAN J:   Well, accept that as a basis that these people have offended on a number of occasions, over a long period, and one or more of their offences answers the description in section 203 of the Act.  You do not look at whether they have had a deprived childhood or anything of that kind.  You do not have to look at that.  That will not be an answer to the question.

KIRBY J:   Does not your legal answer have to be that look at the higher level, look at whether there is the source of power.  If the source of power has been lost because the person has been absorbed into the Australian community, it is not revived after that by the fact that the person commits an offence.  I think these – certainly one of Mr Te came here at the age of 16.  That was in 1986.  Now, when were his offences committed?  1992, were they not?

MR MAXWELL:   Your Honour, I accept the force of what Justice Callinan is putting.  Our case is, you look at the person’s conduct from arrival to the date of the decision and we assert that by analogy with the immigration cases it would be concluded that each of those persons had become a member of the Australian community, had been absorbed, was a member of the body politic.  His Honour says part of that consideration surely must involve examining whether their behaviour, as reflected in a criminal record, was inconsistent with absorption.  So it is not a case of having it and then losing it.  I accept that one is looking at the whole period of the conduct.  Our submission is that just as one does not look for paragons of virtue in order to say, “Yes, absorbed”, so one does not disqualify people for bad behaviour ‑ ‑ ‑

GLEESON CJ:   How does the power to make laws with respect to naturalisation sustain section 10 of the Citizenship Act, which says that:

a person born in Australia after the commencement of this Act shall be an Australian citizen. 

MR MAXWELL:   I accept that, your Honour, and I think ‑ ‑ ‑

McHUGH J:   Well, it may be under the sovereignty power.  For example, in the United States, notwithstanding a power in respect of naturalisation in the United States, the courts have never really let go of the idea that the sovereignty of the United States itself is the source of power to deport aliens – and there are many statements to that effect. 

MR MAXWELL:   Yes, your Honour, and, with respect ‑ ‑ ‑

KIRBY J:   My recollection is that the powers of the Congress do extend to citizenship. 

MR MAXWELL:   I accept your Honour’s point and it means that the answer I gave is not, to that extent, correct. 

GLEESON CJ:   Why is not the answer, “It is the power to make laws with respect to naturalisation and aliens”?  That includes a power to say, “A person born in Australia is not an alien”.

MR MAXWELL:   That may be so, in our respectful submission, but let it be assumed that there is a proper head of power for determination of citizenship.  If the question is whether this law based on the aliens power can extend to that person, the question here, as in Patterson, is: is this person an alien at the time? That has nothing, with respect, to do with the power to make the Citizenship Act; it has everything to do with what are the attributes of an alien or non‑alien and that is not, as Justice McHugh said, a matter of Australian citizenship but of being a subject of the Queen.

GLEESON CJ:   That sovereignty power that Justice McHugh refers to in the United States, that is the source of the power under which, by executive acts, they sent people back to Cuba, is it not?

MR MAXWELL:   I expect so, your Honour.  I do not know.

GLEESON CJ:   Provided they have not got within the immigration zone.

MR MAXWELL: Yes, your Honours might have had a chance to consider the scope of the executive power to repel aliens had a certain validation Act not been passed. To answer a question asked by one member of the Bench, it would appear, on the basis of the provisions in the Citizenship Act, Mr Dang would have been eligible for citizenship in about January 1986 and Mr Te in about April 1985.

It is not, moving to a different point, a corollary of our submission that the non‑alien status which our clients have obtained cannot be lost by them.  Whether they have lost it is not a matter for the Parliament but ultimately for this Court.  That is to say, if Mr Dang committed an act of treason demonstrating, we would say, a renunciation of allegiance to the Queen of Australia ‑ ‑ ‑

GUMMOW J:   That is all dealt with in the Crimes Act, though.

MR MAXWELL:   Yes, your Honour, but that would, in our respectful submission constitute, on your Honour’s analysis in Patterson, a severing of the relationship of allegiance and Parliament could properly provide in the Crimes Act that that person had, upon the commission of an act of treason, become an alien.  That is exactly what your Honours, in our respectful submission, are contemplating, that the act of a party can sever the relationship.

HAYNE J:   The Crimes Act deals with treason in a way that makes plain that it is an offence that can be committed by citizens, non‑citizens, visitors.

MR MAXWELL:   I accept that, your Honour, but it is of the essence of treason that one is disavowing allegiance to the lawful authority of the country and seeking to overthrow it.  That, we would respectfully submit, is sufficient for the conclusion to be reached that the obligation of allegiance is no longer owed and the person is an alien.

So, Mr Dang, could conceptually do exactly that and Parliament could properly provide in the Crimes Act that he then and there became an alien, notwithstanding that he had become a non‑alien, on our argument, by absorption.  So, it is not correct to suggest that this new category of non‑alien, non‑citizen is something that unlike Australian‑born children can never be lost.  It can be lost in the same way as an Australian citizen can lose citizenship.

GAUDRON J:   I, for one, would be reluctant to embrace the proposition that citizenship can be lost other than in consequence of clearly defined, or non‑alien status, other than in consequence of clearly defined circumstances specified by the legislature.

MR MAXWELL:   And I was postulating, your Honour, exactly that kind of circumstance.

GAUDRON J:   No, I do not think ‑ ‑ ‑

MR MAXWELL:   That in the Crimes Act it would be said – and if an act of treason  ‑ ‑ ‑

GAUDRON J:   But certainly you must concede, must you not, that if you can acquire a citizenship – if an alien can acquire non‑alien status by operation of the common law, which is what you are – well, it would seem to follow that it could be lost by operation of the common law, could it not?

MR MAXWELL:   Yes.  Not only, with respect, do we concede it, we assert that and we rely on the general analysis in paragraphs [224] and [225].  It can be lost and the relationship of allegiance can be severed and the conduct of the individual is one way by which it can be severed.  We accept that.  So, it is not right to say that this is some magic form of non‑alien status which once acquired can never be lost.  It can be, in exactly the way your Honour puts to us.

So far as renunciation goes, if you could at the time Sir John Salmond wrote the article make a declaration of alienage, so, in our submission, you can renounce allegiance.  It can be unilateral, in our submission.  Logically, that would be right.  If it mattered in respect of these individuals leaving, there was concurrent action by the sovereign, the new sovereign, the communist government of Vietnam and the Khmer Rouge.  In the Vietnam case Mr Dang’s father was arrested, stripped of all his property and sent to a labour camp.  Now, that, one would think, is sufficient to sever the relationship.

CALLINAN J:   Why?

MR MAXWELL:   Because the sovereign power is ‑ ‑ ‑

CALLINAN J:   - - - has just exercised its sovereign power in respect of him.

MR MAXWELL:   But in such a way that the person is unable to receive the protection from the sovereign power to which, by allegiance, he should be entitled; hence the application for refugee status, which is accepted.

We have submitted that Pochi should be overruled, if it has not already been implicitly, because, as the judgments noted, Pochi underlay Nolan in excluding the non‑alien, non‑citizen category, and also because it insists on a formal act of assumption of citizenship for the loss of alien status.  If our argument is right, it could not stand with that part of Pochi.

Two final points, your Honours.  Joyce’s allegiance was not merely local.  We made the point earlier that the case turned on the possession of a passport and the altogether different relationship with the Crown which that created.  We accept that local allegiance is a different category.

My learned friend says we have read passages out of context; that is a matter for your Honours when you go back to the judgments in Patterson.  We invite your Honours to look at the passages we have referred to.  Of course the context is essential, but we reject the notion that they have been read out of context and, importantly, as I was submitting a minute ago, the learned solicitor did not go to a single passage on which we rely for the assertion that six justices of this Court placed allegiance at the heart of the analysis of alienage.

If your Honours go to paragraph 35 of the Commonwealth’s submissions, your Honours will see that they assume that allegiance is there; they make assertions about you cannot do it unilaterally.  We have given your Honours the passages and, in our respectful submission, they speak eloquently for themselves, in context, to establish the proposition for which we contend.  May it please the Court.

GLEESON CJ:   Thank you, Mr Maxwell.  We will reserve our decision in this matter.

AT 3.59 PM THE MATTER WAS ADJOURNED