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High Court of Australia Transcripts |
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 1997 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 - - -
CALLINAN J: You are not absorbed the moment you put a foot off the boat.
MR MAXWELL: That is so, we accept that, and that is plain on the immigration cases.
KIRBY J: Well, what do the immigration cases say in terms of the length of time it takes to become absorbed?
MR MAXWELL: Well, her Honour Justice Gaudron suggested in one of the cases that 10 years excluding periods of imprisonment might be an appropriate point.
KIRBY J: So Mr Te had not been here for 10 years when he committed the offences and was imprisoned?
MR MAXWELL: Yes, I think that is right.
GAUDRON J: But that was in relation to the immigration power.
MR MAXWELL: Yes, your Honour.
GAUDRON J: Whatever might be the notion of absorption for the immigration power, it seems to me to be a very different proposition from the notion of absorption bringing about a situation in which you assert non-alien status.
HAYNE J: And if it does not, you have written the aliens power out.
GAUDRON J: Yes.
HAYNE J: If it is an identical test, then what work has aliens got left to do?
MR MAXWELL: If I might first respond to Justice Gaudron. Your Honour, with respect, said this both in Patterson and Nolan: the power with respect to aliens is wholly concerned with the relationship of individuals to the Australian community. That, with respect, is a dictum which could apply equally to the immigration power, in terms of the absorption test.
GAUDRON J: Yes, but you are talking about rights. In immigration you are talking about a factual situation. With the alien and naturalisation you are talking about the acquisition of the rights and duties which are associated with the status of membership of the community constituting the body politic. You are talking about the right to claim protection as against other nations, for example. You are talking about the obligation to defend your country. You are talking about your rights to participate in its political processes. Different area of inquiry altogether from these people live in Australia, have made it their home.
MR MAXWELL: With respect, your Honour, that is, we would submit, adding more to the notion of non-alien than the basal principles allow or require. All that is required, and this much is required, is that there be the relationship of allegiance and the commensurate protection. That is what Professor Salmond is saying, that - - -
GAUDRON J: Yes, in a different context.
MR MAXWELL: - - - members of the body politic - - -
GAUDRON J: In a different legal context.
MR MAXWELL: With respect, no, your Honour. He is saying citizenship and allegiance - it has been put against us that citizenship is the qualification for non-alien status and yet this analysis, which, in our respectful submission, is cogent, is saying if you are a resident non-citizen you have claims to the protection of the laws - not concerned with rights - - -
GAUDRON J: Yes, protection to the laws is one thing.
MR MAXWELL: Yes.
GAUDRON J: So, for example, in Bolton and Beane a non-citizen was entitled to habeas corpus when he had been arrested without authority. You are entitled to the protection of the laws to the extent that they so extend. The protection one gets by reason of citizenship extends beyond the ability to claim protection of the laws.
MR MAXWELL: But, in our respectful submission, allegiance does not. I owe allegiance because I am afforded the protection of the law. In that sense, the two classes of membership of the body politic are equally members of the State in exactly the way the learned author describes. Each can claim protection and each owes obedience and fidelity. Fidelity is allegiance. In our respectful submission, that is the inescapable logic of the notion of allegiance, that if it is right that there is the protection of the law, there is the reciprocal obligation to obey and be faithful, and a person who satisfies those criteria satisfies your Honour's test of being a member of the body politic.
CALLINAN J: If you want to go to back to feudal notions, people who persistently committed crimes would be outside the law, historically. But going back to the question of absorption, a person who is spending a great deal of time is prison is hardly being absorbed into the community.
GLEESON CJ: He is being absorbed into the criminal community.
CALLINAN J: Exactly. I do not put this lightly. It may not concern other people, but it concerns me on the absorption point.
MR MAXWELL: Your Honour, with respect, I am endeavouring to address it.
GAUDRON J: Is not the fundamental thing this? Let it be assumed for the moment, which assumption I do not think is right, that there is a way in which a person who does not have allegiance to the Queen of Australia, has not hitherto had it, can acquire it and thereby become a member of the community and acquire it on alien status. Let us make that assumption. Does not the very presence in our immigration law of provisions postulating the possibility of deportation for the commission of serious criminal offences inevitably lead to the conclusion that you are not going to be absorbed, you will not be absorbed, if you engage in this sort of activity? I would have thought it did. The fact that the citizenship has a - what is the term? "Fit and proper" or something? I do not know.
MR MAXWELL: "Of good character".
GAUDRON J: Of good character. I would have thought they were all indicia that, assuming this test exists, it will not be satisfied if you engage in that sort of conduct.
MR MAXWELL: With respect, by analogy, the fact that the Migration Act says nothing about absorption - I withdraw that; there is the absorbed person's visa - but the notion of the limit on that constitutional head of power was determined by this Court as the custodian of the Constitution. The fact that the Parliament, assuming as it does, correctly or incorrectly, that these individuals are and remain aliens, provides for their deportation on conditions is, in our respectful submission, nothing to the point in relation to whether as a matter of constitutional law there is a limit to the power at the point of absorption.
GLEESON CJ: Leaving aside the question of the absorption argument in relation to the aliens power, in relation to your argument about refugee status, I think about 10 years ago a decision of the House of Lords emphatically made the point that a person who complies with the definition of "refugee" does not have a right to be in the United Kingdom. The person has a right to a protection visa, which, having regard to the conditions that attach to visas, is a very different thing.
MR MAXWELL: I accept that, your Honour.
GUMMOW J: Yes, it was a speech of Lord Mustill's.
MR MAXWELL: We do not assert that either of our clients had a right to admission to Australia. Australia had an obligation at international law to consider whether they satisfied the definition of "refugee status" and, for whatever reason, Australia offered protection to each of them. That act of Australia was unequivocal and unconditional and was intended to confer on them the status of permanent residence because they could not rely on their own nations for protection. In our respectful submission, the Joyce Case, however sui generis it may be regarded as being, is authority for this argument because, as the House of Lords said, the granting of a passport was the conferral of rights and protection of the British Crown when that man was abroad. That is specifically said in the judgments at 370 and 371. By obtaining a passport:
he sought and obtained the protection of the King for himself while abroad.
The grant of permanent residence was a "substantial privilege".
In this case these individuals sought and were granted the protection of Australia as refugees and were given permanent residence. I am really only repeating a submission already made. It does not depend on any right to enter. It depends on the act of Australia to offer them that protection, the corollary being that each of them was unable or unwilling to receive protection - that is the term used in the Convention - from his own country.
KIRBY J: Is there a provision in the Migration Act as to the incidence of permanent residence? If there is, if you could give us that at some stage.
MR MAXWELL: We will refer your Honours to it.
HAYNE J: Sections 29 and 30 define the relevant visa, I think, do they not?
MR MAXWELL: As your Honour pointed out, 29 says what a visa is and 30 says what a - - -
HAYNE J: Permanent visa is.
MR MAXWELL: Yes:
A visa to remain in Australia . . . to be known as a permanent visa, to remain indefinitely.
HAYNE J: Is a permission "to remain indefinitely".
MR MAXWELL: Yes, your Honour.
HAYNE J: Yes.
KIRBY J: Re-entry, is that governed by that provision or not?
MR MAXWELL: It is not in that section, your Honour.
HAYNE J: Section 29 deals with visas, does not it not, that may give or may deal with permissions to re-enter either for limited times or in limited circumstances?
MR MAXWELL: Yes, your Honour, it does.
HAYNE J: Now, these notions of obedience, protection and the like, is the proposition you are making any larger than this, that while within the territory of Australia each of these men was subject to the criminal law of the country?
MR MAXWELL: Yes, your Honour.
HAYNE J: Each of these men could resort to the civil courts to enforce rights cognisable in those courts?
MR MAXWELL: Yes, your Honour.
HAYNE J: Is the proposition any larger than that?
MR MAXWELL: No, it is no larger than that, your Honour.
GUMMOW J: Because they were friendly aliens.
HAYNE J: They were not disqualified from resort to the civil courts.
MR MAXWELL: That is so.
KIRBY J: But they were not liable to national service under the National Service Act, if that were to be reactivated. They were not liable to jury duty. They were not liable to the obligation to vote, nor entitled to vote.
HAYNE J: Could not stand for Parliament, et cetera. You see, if the proposition is simply a proposition about the territorial application of the criminal law or about resort to the civil courts, what does that tell us, do you say, about concepts of alienage?
MR MAXWELL: Your Honour, with respect, it is not about that. We accept that there needs to be more for non-alienage than what is called local allegiance, the duty to obey the laws of the country you are in for the time being. We sought merely to make the point that the discourse begins at the point of arrival because according to Joyce and according to Salmond, residence within the State, short of citizenship, entitles the person to protection and carries with it the associated obligation of obedience. That is important to say, "Well, this person is eligible for non-alien status by virtue of being there in the first place." This is a category of allegiance. We then add to that a notion of "the permanent adoption of the country as your own". That is the absorption notion, so that this is - - -
GLEESON CJ: But is that not done by naturalisation?
MR MAXWELL: In our respectful submission, no.
GLEESON CJ: You see, the decision in Patterson turned upon posing a question, "If this person was a non-alien, by what process did the person cease to be a non-alien?"
MR MAXWELL: Yes, your Honour.
GLEESON CJ: Now, there is a reverse question applicable in the present case, "If these people were aliens, how could they cease to be aliens by any process except naturalisation?"
MR MAXWELL: Yes, your Honour, we accept that. Our submission is that by one or other of the means, protection as refugees, membership of the body politic in the Salmond sense, a member of the State, the political community of Australia or absorption so that one is able to say this is permanent allegiance, not local and temporary allegiance.
GLEESON CJ: But the head of power is naturalisation and aliens.
MR MAXWELL: Yes, your Honour.
GLEESON CJ: Is not naturalisation the process by which you cease to be an alien?
MR MAXWELL: In our respectful submission, Patterson held that it was not exclusively.
GAUDRON J: No, because, as the Chief Justice pointed out to you, it was not that Patterson ceased to become an alien; it was that by reason of his having allegiance to the Queen before she had been bifurcated into the Queen of Australia and the Queen of her other realms he never was an alien.
MR MAXWELL: I accept that, your Honour.
GAUDRON J: Now, you really have to say that there are ways you could be naturalised other than by the processes which Parliament sets up. That is really what you have to say in this case.
MR MAXWELL: Yes, your Honour.
GLEESON CJ: But the critical question, then, is whether Chief Justice Gibbs was correct at page 111 of Pochi where he said:
It was well settled at common law that naturalization could only be achieved by Act of Parliament -
you have to say that is wrong.
MR MAXWELL: Yes, your Honour, if naturalisation, as your Honours are putting it to me, means loss of alien status, yes, we do.
KIRBY J: But the head of power to expel you from Australia is not the naturalisation power, it is the aliens power.
MR MAXWELL: Exactly so.
KIRBY J: Therefore, this issue of the scope of the naturalisation power is not, as it seems to me, currently involved, except as it throws light on what is the scope of the aliens power.
MR MAXWELL: That is how I understand the question to be being put, that there is a process of ceasing to be an alien which is being called "naturalisation" -
KIRBY J: But is that the only way that the aliens power given to the Federal Parliament is lost? I still find it very difficult to conceive that at the age of 90 a person who has been brought here as a baby and who has never taken out Australia citizenship can be expelled, not necessarily for any cause; just as Parliament might pass a law, as has been done in Kenya and other countries, saying everybody who is not a citizen goes.
GLEESON CJ: There are people who come here from New Zealand and, for what they regard as very good reasons, decide not to become Australian citizens.
MR MAXWELL: Yes, your Honour.
GLEESON CJ: they might stay here til the age of 90, they might live and die here, but they choose never to become Australian citizens. Should we not give effect to their choice?
MR MAXWELL: That is different from this case in the sense that if they say, "I want to stay a citizen of New Zealand", then there is a maintenance of formal allegiance to a foreign power. That is not our clients' case. On the contrary, they have renounced it. But so far as absorption goes, we would say the argument is good. If the New Zealander lives here from 20 to 90 and is in every sense absorbed into the Australian community, marries, has children, is educated, earns money, pays taxes, then that person is absorbed and is not an alien.
GAUDRON J: But does not vote.
McHUGH J: Does your argument not mean that we would also have to overrule Meyer v Poynton, is that the case, where this Court held that even when you became naturalised, it did not prevent the Parliament from deporting you? Once an alien, always an alien. Is that not what it holds on - - -
MR MAXWELL: Your Honour, if it does, I am not aware of it and we will check that. Certainly if that is the law hitherto, then, your Honours, we are asking you to overturn that. Again, it is the converse of the proposition that while you could never at common law renounce your allegiance, now you can. So, in our respectful submission, as their Honours in the joint judgment said, alien status can be lost, paragraph [224] by the act of either one or both. Someone does something the effect of which is to sever the relationship.
Now, of course, there are those English cases where the loss of the American territories meant that by an external event there is a severing of the relationship but, in our respectful submission, the analysis in the joint judgment is persuasive that if this is a mutual relationship of protection and allegiance, then there is nothing indissoluble about it and if the protection is withdrawn, as occurred with both our clients, then the allegiance disappears likewise and, if that is so, then it is not right to say, "Once a citizen, always a citizen" or conversely, "Once an alien, always an alien".
GLEESON CJ: In Pochi Justice Murphy said that cases like Walsh v Johnson:
concerned British subjects, not aliens, and the legislative power over aliens was not relevant.
He also said:
The applicant did not present any persuasive support for the proposition that the doctrine of absorption should be applied to aliens.
MR MAXWELL: We are hoping to do a little better than that.
GLEESON CJ: Could you not say that comment be made about the case of Patterson? That case concerned a British subject, not an alien.
MR MAXWELL: Yes, and the case was not decided on a question of absorption, though his Honour Justice Kirby held that Mr Taylor had been absorbed.
KIRBY J: That was unnecessary to - - -
MR MAXWELL: Unnecessary.
GLEESON CJ: That was relevant to the immigration power; it is always relevant to the immigration power.
MR MAXWELL: We accept that, your Honour, and we do confront head on - and this is why we seek the Court's leave to reopen Pochi - we have to meet head on the statement in Chief Justice Gibbs' judgment at 111, that the argument about absorption, meaning that someone is "no longer an alien", is quite "impossible to maintain".
KIRBY J: Could you explain to me why the founders felt it necessary, having provided for immigration, which, on one view, would be large enough to deal with anybody who came from outside into Australia, some of them British subjects, some of them not, and to provide under that head for naturalisation. Why did they provide separately for naturalisation?
GAUDRON J: Well, it is very simple, they wanted to get rid of the Irish. The immigration bar is there because of the Irish who were perceived to be troublemakers but who, nonetheless, had owed allegiance to the Queen who was not then bifurcated.
KIRBY J: I wonder if it is that or if it related to non-European people - - -
GAUDRON J: Them too.
KIRBY J: - - -because the Irish were then part of a joint kingdom and most Irish people at that time were entirely loyal to the Crown.
MR MAXWELL: Your Honour, we would understand there to be a different connotation of the terms. Naturalisation and aliens is concerned - - -
KIRBY J: I am trying to understand what the separate head of power covers, because that - - -
MR MAXWELL: Well, in our respectful submission, naturalisation and aliens is concerned with the status of persons within the realm of Australia; immigration and emigration is concerned with the ingress and egress of people to Australia; they are qualitatively distinct concepts and neither would be thought, in our respectful submission, to cover the ground of the other. We have sought to argue, in our submissions, that even if our absorption argument is accepted, these concepts have work to do.
KIRBY J: It is not only people into Australia; the issue of absorption comes up in certain drug offences as to when, after the goods have come into Australia and moved around Australia, the immigration or the migration power has no basis to support the Customs Act, I think. There have been cases on that.
MR MAXWELL: Yes, your Honour.
CALLINAN J: Mr Maxwell, does a person have to be a criminal at the time of entering into the country to come within section 51(xxviii) of the Constitution, which is concerned with the head of power "influx of criminals"?
MR MAXWELL: I imagine it would extend, your Honour, to suspected criminals.
GLEESON CJ: Or people of criminal disposition?
MR MAXWELL: Yes, your Honour.
HAYNE J: Discernible at age 8, perhaps.
McHUGH J: Mr Maxwell, the case of Meyer v Poynton, a decision at first instance in this Court of Justice Starke in [1920] HCA 36; 27 CLR 436, where he refused an injunction in what was a two-stage process, the first was to revoke the naturalisation certificate and then they were going to deport Meyer under the Aliens Restriction Act and Justice Starke at 441 said:
It seems to me that if the power given by the Naturalization Act to admit to Australian citizenship is within the power to make laws with respect to naturalization, so must authority to withdraw that citizenship on specified conditions be also within that power.
MR MAXWELL: Well, your Honour, we would not quibble with that.
GUMMOW J: The same has been held in the United States.
MR MAXWELL: We would not regard that as inconsistent with our submissions, with respect, in the sense that the relationship between the subject of that decision and the Queen then was one of allegiance. He had made the formal act of citizenship pursuant to the legislation unequivocal declaration of allegiance, not an alien, but an act of the sovereign can change that relationship and can say, "I expel you from your condition of membership." That is consistent. We are looking at it at the other end and saying someone - either the act of the government granting the visa or the act of the individual in being and remaining permanently a member of the community can create a relationship which did not previously exist. They are, with respect, two sides of the same proposition.
McHUGH J: But what about your absorption case? What about a case like Kenny? Kenny was an Irish citizen who had been here for 37 years and it was held that nevertheless he could be deported.
MR MAXWELL: Yes, your Honour. Well, Pochi is strong authority saying that however long you have been here, if you have not taken out citizenship, you can be deported. That is the proposition - - -
GLEESON CJ: Perhaps, more accurately, it is authority for the proposition that it is within the power of Parliament to make a law to that effect. The power to make laws with respect to naturalisation and aliens includes, subject to certain limits, a power in Parliament to decide who will be treated as an alien. Now, it may be that Patterson identified one of those limits, but it is not a limit that applies here.
MR MAXWELL: No.
GLEESON CJ: Why is it not within the power of Parliament to say, even if a person in the year 2002 comes to Australia from England and decides to settle down here for the remainder of his life, if he chooses not to take out Australian citizenship, he will be an alien? Why is it not within the power of Parliament to say that?
MR MAXWELL: Because, in our submission, that person can, as our clients have done, assume membership of the body politic and, by adoption of Australia and membership of the Australian community on a permanent basis, cease to be an alien. I mean, it is really - - -
GLEESON CJ: Cannot we decide who will be the members of our body politic through our Parliament?
MR MAXWELL: It depends then, your Honour, whether the body politic is a matter of definition by Parliament or is an a priori notion of the kind to which Professor Salmond refers. We submit it is the latter. That is to say, "body politic" means those who are in the community and have claims to the protection of the laws. Indeed, the point that the article goes on to is to say, on page 271 of Salmond, that:
The consistent tendency of legal development is to minimize the peculiar rights and liabilities of subjects, and to make residence rather than citizenship the essential and sufficient title of state-membership.
GAUDRON J: Yes, but that, again, is said in a field far distant from the Australian Constitution, where I should have thought the conferral of power on the Parliament to make laws with respect to aliens and naturalisation meant that it was Parliament who would decide, except in the case of people who owed allegiance, who was and who was not an alien.
MR MAXWELL: We would, with respect, accept that formulation.
GAUDRON J: Two questions you have to answer, on your argument: one, that it did not give it to the Parliament exclusively, that somewhere out there, somebody else, including the individual, could decide that he or she was now a member or would be a member; and, two, that the Parliament has not purported to legislate exhaustively and exclusively under the 1984 Citizenship Act to say who thenceforward would become - and perhaps it goes back to the earlier Citizenship Acts, too. You perhaps have to deal with each one of them separately, saying that is not an exclusive and exhaustive statement by the Parliament as to who can become non-aliens.
MR MAXWELL: Certainly we do respectfully submit that citizenship is not a necessary condition of membership of the body politic.
GAUDRON J: No, no.
MR MAXWELL: It is sufficient but not necessary.
GAUDRON J: The Parliament could have chosen any name it liked, I suppose, but the question is whether you can say, first of all, there is a power in some body other than the Parliament to say who will be non-aliens and, secondly, that it is a power that cannot be excluded by the Parliament, I suppose, but if it can be excluded by the Parliament, it has not been excluded by the Parliament. It seems to me they are the essential steps you have to take.
MR MAXWELL: That is so, your Honour. We say that the Parliament cannot define the limits of its power with respect to aliens. This Court must do that. So much was said in Patterson.
GAUDRON J: But it must be able to define non-aliens.
MR MAXWELL: Yes. Yes, Parliament can say, "We as the sovereign choose to say if you satisfy these criteria you will cease to be an alien."
GAUDRON J: "We as the Parliament having power so to do."
MR MAXWELL: Yes, your Honour, we accept that. It is a valid exercise of the aliens power to say who ceases to be an alien and in what circumstances.
KIRBY J: As far as I am concerned, I would not surrender to the Parliament the duty of this Court ultimately to pass on the validity of such a law. They might say anything.
MR MAXWELL: No, but, your Honour, I am not making that concession. All I was saying was that the sovereign can define its own conditions for loss of alien status. Our submission, however, is it cannot do that exhaustively. It cannot, because so to do would be to usurp the function of the Court. The Court says, "Well, you have left out of the class of those who may become non-aliens persons who by analogy with the immigration case are here permanently and have made Australia their home. Properly construed, the constitutional head of power extends to such persons and you cannot, though you might purport to do it, deport them as aliens." In our respectful submission, we would have thought that that is what several of the Justices said in Patterson, that you cannot say that a class of Aborigines are aliens if, as a matter of constitutional law, they are plainly not.
GAUDRON J: But that is a different end of the problem. The problem that you have to address is not whether or not your non-alien status can be taken away from you in the absence of something that indicates a change in your relationship with the community, but whether you can gain non-alien status by a means other than positive acceptance of your application to become a member. You see naturalisation has always been about the agreement of two persons.
MR MAXWELL: Yes, I accept that, with respect.
GAUDRON J: At least it must still be so. Where is the agreement absent - I mean, you can see the agreement in the statutory procedures for naturalisation. Where is the agreement on your scenario? It would have to be that you have not been deported, and that is exactly what we are talking about here, the deportation. You have not been deported within a specified period. What is the criteria for the determination of that period?
MR MAXWELL: Your Honour, several answers. First, with respect, we maintain that the establishment of the relationship of allegiance and therefore non-alienage can be unilateral.
GAUDRON J: If you are talking about allegiance - are you using "allegiance" synonymously with "naturalisation"?
MR MAXWELL: No, I am using "allegiance" as the touchstone of non-alien status.
GAUDRON J: Okay. It used to be that the touchstone of the acquisition of non-alien status by a person who was an alien was called naturalisation.
MR MAXWELL: Yes, your Honour.
GAUDRON J: You say that is no longer - - -
MR MAXWELL: Good law.
GAUDRON J: Well, it is not good law; it is a question of good English. We are talking about terms that have a common meaning in language. Do you tell me that naturalisation no longer means the process or the act or the circumstances or events by which a person who was an alien becomes a non-alien?
MR MAXWELL: His Honour the Chief Justice was using it in that more generic sense. I am content to regard it as the process by which citizenship is formally obtained. That is how it is traditionally - - -
GAUDRON J: By a person who was formerly an alien?
MR MAXWELL: Yes, your Honour. We accept that that is a category - and at the moment, on the authority of Pochi, the only category short of birth - by which you can become a non-alien. That is what Pochi decided.
GAUDRON J: But the question I am asking you is this. At common law at least, that process was one that depended on agreement. Do you assert it no longer depends on agreement or do you assert there still must be agreement?
MR MAXWELL: So far as naturalisation properly so-called is concerned - - -
GAUDRON J: Well, so far as one can acquire non - - -
MR MAXWELL: - - - alien status.
GAUDRON J: A person who was formerly an alien can acquire non-alien status. I just do not understand. Do you say that no longer requires agreement?
MR MAXWELL: Yes, we do.
GLEESON CJ: And you say it is beyond the legislative power of Parliament to provide that a person can only become naturalised by going through a certain procedure and taking a certain pledge of commitment?
KIRBY J: Where that person is an alien, which was the point of distinction of Mr Patterson.
GAUDRON J: Well, you must. If you say it can be acquired unilaterally and without agreement, you must.
MR MAXWELL: I am sorry if I have not made that clear. It is fundamental to our submissions that a person can acquire the status of a non-alien unilaterally.
GLEESON CJ: Only an alien can be naturalised.
MR MAXWELL: Yes.
GLEESON CJ: I could not be naturalised.
MR MAXWELL: Because you have citizenship by birth.
GLEESON CJ: That's right, so only aliens can be naturalised. But you have to be able to say that the Constitution does not permit the Parliament to provide that the only way an alien can become naturalised is by going through a certain procedure and taking a certain pledge of commitment.
MR MAXWELL: Yes, your Honour.
HAYNE J: But naturalisation, that is "naturalisation" when it appears in 51(xix), contains within itself a meaning of naturalisation by a process occurring over time.
MR MAXWELL: Yes, your Honour, but it may be that the connotation of naturalisation as at 1901 meant the statutory process which Salmond refers to as having been established in 1870. Naturalisation means the process of formal declaration of allegiance in some kind of ceremony. That may be so. We accept that that is what naturalisation typically means, but as I understand the Chief Justice's question, it is, "Is there any other means by which you can cease to be an alien?" Our case is, "Yes, there is and Parliament cannot preclude it."
GLEESON CJ: No, what I am suggesting to you is that naturalisation and aliens or naturalisation and alienage are simply two sides of the one coin and that a power to make laws with respect to naturalisation and aliens includes a power in the Parliament to decide that the only way an alien can cease to be an alien is by going through a formal procedure which involved pledging a certain commitment.
MR MAXWELL: Yes, your Honour.
KIRBY J: Do you necessarily accept that because on one view they are two constitutional words which would be given large meaning, not all aliens want to become naturalised.
MR MAXWELL: No.
HAYNE J: Whether they want to or not, according to your argument, they may become so because the process goes on, regardless of their intent.
MR MAXWELL: Yes. I think your Honour asked me this at first instance, it is not a question of the subjective view, it is an objective view taken of, as in the migration cases, the character of their residency, their habitation, the permanence of their being here and, yes, your Honour, it can happen unconsciously.
HAYNE J: And against their will.
MR MAXWELL: Except that we are asserting their non-alien status, on their instructions.
HAYNE J: I understand in this case but if the legal proposition you advance is right the person who clutches alienage dearly to their bosom may find it lost through the process.
MR MAXWELL: That is so, yes. It may be that a person who wanted to say, "I am - - -
GLEESON CJ: - - - "a New Zealander. "I have come here to live with my children and my grandchildren and I want to stay here until I die but I am a New Zealander and I want to remain a New Zealander."
MR MAXWELL: Yes. If a New Zealand citizenship was maintained then I have already ventured that that may mean that unlike these cases that is a factor which would oust any absorption argument. If you actively maintain your membership of a different body politic - if the question of dual allegiance which again Salmond addresses - but, in our case, and I do not think I have put it this way yet - if "alien" means belonging elsewhere, "non-alien" means belonging here.
KIRBY J: Are there not then the three - there is a status of alien, there is a status of naturalised citizen, but there is also at least possible, on your argument, by absorption or otherwise, a status of non-naturalised citizen who nonetheless is not an alien.
MR MAXWELL: Exactly so.
KIRBY J: That is what I understood your the argument, whether it is good or bad - - -
MR MAXWELL: I said that at the outset. There is a category which has been opened up by Patterson of non-citizen non-alien. Taylor is a non-citizen non-alien. So are our clients, in our respectful submission, not because of being British subjects but because of the three arguments, each of which, in our respectful submission, is sufficient for it to be said of them that he is not an alien and, accordingly, regardless of the scope of the naturalisation power, the aliens power cannot extend to him.
He cannot be deported as an alien because he either was not one the moment he got the protection visa or, on a more general level, because he has been and continues to be a member of the body politic and a member of the Australian community. He has permanently and unconditionally adopted Australia as his home, or to put it differently, he is not an alien because he belongs here and he belongs nowhere else. So, it is the opposite of alienus, as mentioned in your Honours' judgments, belonging to another place. He belongs to this place.
GLEESON CJ: A possible point of view is that all that Patterson decided was that this category of non-citizen non-alien may operate because of the historical association of this country with the British Commonwealth.
MR MAXWELL: Yes, your Honour, we accept that. But why the judgments, in our respectful submission - and we keep referring to the joint judgment in dissent - are so important is that it went considerably beyond that in discussing the notion of allegiance as a concept which informs the analysis which comes to the point which says absence of citizenship does not mean, in Taylor's Case, the loss of non-alien status.
KIRBY J: But this case may illustrate how important facts are in pressing the mind to the perimeters of constitutional power. Mr Taylor was not only a British subject and had that, as it were, status position which was recognised fully in Australian law and voted and so on, but he had been here for 30 years. Your clients had been here for a matter of five years before they were offending and the mind is not pressed into a view of their non-citizen but non-alien status by their absorption. It is a very short time. It is not pressed into it by their British subject status. It is an illustration of the fact that you really have to choose your cases in a sense. This does not seem a very strong case to be pressing the boundaries of constitutional power.
CALLINAN J: I think Taylor's first offence was committed after he had been in the country 15 years, was it not?
KIRBY J: I think it was longer than that. He came to the country in 66 and he was before the Court in 96.
MR MAXWELL: Accepting, with respect, the point about whether these facts as strong - I mean, it would be better for this argument to have a person who had lived a blameless life. These individuals have been here for 16 - - -
KIRBY J: If he was, he would not be here.
MR MAXWELL: - - - but that would be an unusual case and the question would not arise because the coercive power to deport would not be threatened.
KIRBY J: Or maybe from Hong Kong where he had some British allegiance, but we have to deal with the case as it is and he was not long in this country before he was committing offences and I can understand Justice Callinan's response, "Well, how you can say he has been absorbed into the country when, very soon afterwards, he is committing quite serious offences?"
MR MAXWELL: But, your Honours, the threshold question is whether this is a criterion for the loss of non-alien status. The second question is whether, on the facts, either of these applicants would satisfy it. We seek to persuade your Honours of both and in reminding the Court that the question will always arise in unattractive circumstances with criminal deportation because ex hypothesi the person will have committed a serious criminal offence within the meaning of the legislation. The Court, in our submission, needs as far as possible to put that out of account and say, "Well, as at the date of the decision in 1999 or 2000, the person had been in the country for 15, 16, 18 years. In the case of Mr Dang, his mother and siblings are Australian citizens. Other members of his family have come to live in Australia and are permanent residents." In answer to your Honour Justice Callinan, if someone is in prison but with that degree of connection into the community, that is to say, a family network, then, in our submission, there is more to the question whether he has been absorbed than the fact that he has spent some time in custody, that is, one can be absorbed, though for a period separated from family, but nevertheless still in touch with and supported by them.
KIRBY J: But, Mr Maxwell, I, at least for my own part, can conceive an argument that the New Zealander case that the Chief Justice put to you or my case of a person who arrived as a baby and is 90 years of age and is proposed for deportation, I can concede the argument that the aliens power has been lost. Kore Matsu in the United States affecting the Japanese Americans is generally regarded today as one of the most shameful decisions of the Supreme Court of the United States, along with the Dred Scott Case. But this is not a case that presses my mind into action because the facts of the case are so far short of the New Zealander who has come to see their grandchildren and lived here ever since or the 80-year old. It is just not a case. Then I ask, does the Parliament have the power in this case? Why should I look into the extreme case to explore the notion of constitutional power?
MR MAXWELL: Yes, your Honour. I wonder if I might take your Honours to annexure A to our reply submission, which is the annotated version. This is as high as we can put the absorption case. It is, in our submission, not without force in each instance. Mr Te - and I will not read it, but your Honours will see there are eight features referred to in each of them.
KIRBY J: When did he first enter? When would he have been eligible to apply for Australian citizenship? When was his first offence committed? They are not in this.
MR MAXWELL: No, they are in the chronology, which your Honours should have been provided with. Mr Te entered Australia in July 1983 aged 16 years. He would have been eligible to apply for citizenship, according to the terms of the Act as it now stands, if he had spent a period of two years, spread over five, in Australia. So he would have been eligible to apply later in the 1980s. His first conviction was in July 1997.
KIRBY J: But in relation to an offence occurring in 1991, was it not?
MR MAXWELL: The reference is to 224 of the application book, your Honour. There is a misprint in the chronology from which I was reading. It was July 1987. So much appears at 224 in the facts and contentions, "convicted . . . on one count of resist police/arrest", July 1987. First commission of a drug offence July 1991. So the first offence at the minor end of the scale. Trafficking a drug of dependence, serious offence, eight years after arrival.
GAUDRON J: That is the offence upon which the deportation is based, is it not?
MR MAXWELL: There is another conviction for an "offence of Traffick in a Drug of Dependence" in May 1996, and appeal dismissed October 1997. I think it is the latter which was the basis of the - - -
GAUDRON J: offence.
KIRBY J: That was committed after he had served his term of imprisonment for the first offence.
MR MAXWELL: Your Honour Justice Gaudron is correct. It was the 1991 offence, for which there was a conviction in 1992, which was the deportable offence. That is the discussed in the reasons of the Administrative Appeals Tribunal at 273, paragraph 8. The Tribunal notes at 277, paragraph 20:
the 1996 conviction in the County Court within a relatively short time of an earlier conviction for a similar offence.
But relevantly, if I might take your Honours back to attachment A, 1(d), Mr Te, at the time of the decision, "had lived almost half of his life in Australia". He "had attended school and been employed in Australia". It was said that - this is at 283 - he had "demonstrated employment skills having worked in Australia for about four years."
GLEESON CJ: Incidentally, you introduced this with the expression, "as at the relevant date".
MR MAXWELL: Yes, your Honour.
GLEESON CJ: Which is the relevant date?
MR MAXWELL: The relevant date for Mr Te is the date of the decision of the Tribunal, 22 September 2000.
GAUDRON J: Why is it the date of the decision of the Tribunal rather than the original decision?
MR MAXWELL: The decision of the Minister? I think your Honour is correct, with respect. We have said that as being the date on which the Tribunal affirmed the decision, but your Honour is right, with respect. The question would be the date upon which the Minister - - -
GAUDRON J: What day is that?
MR MAXWELL: - - - purported to exercise the power.
GAUDRON J: Because, at the very least, that must be the date by which you assert that Mr Te had become a non-alien.
MR MAXWELL: Yes, your Honour, that is so. 10 July 1998. I am indebted to my learned friend.
GAUDRON J: 10 July 1988?
MR MAXWELL: 1998.
GAUDRON J: 1998.
MR MAXWELL: In the case of Mr Dang, it was the date of the decision of the Minister, 27 June 2000.
GAUDRON J: Well, that makes (c) look a little bit dodgy, does it not, "there was no likelihood of his returning to his country of birth"? It might be "no likelihood of his returning voluntarily", because, at least - am I wrong in thinking this - at all relevant times the Act provided that a person who had been here less than 10 years and who was convicted and/or spent relevant times in prison might be deported. Certainly in Mr Nolan's case, there was a provision that anybody who had spent, I think it was, less than 10 years out of gaol could be deported. So it is really a question of what was the law at 1998, maybe earlier.
MR MAXWELL: Your Honour is, with respect, correct. Section 201, "Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes".
GAUDRON J: So, less than 10 years. Is it less than 10 years on the - - -
MR MAXWELL: Has "been in Australia as a permanent resident", as each of these men had:
(A) for a period of less than 10 years; or
(B) for periods that, when added together, total less than 10 years - - -
GAUDRON J: And they being the periods in which he was not in gaol? So what you - - -
MR MAXWELL: That is not provided in the - - -
GAUDRON J: Well, you say, for less than 10 years. You say, he arrived in Australia in 1983?
MR MAXWELL: Yes, your Honour.
GAUDRON J: So, 10 years in 1993. Am I right?
MR MAXWELL: He had committed the deportable offence in 1991, so, on any view, he was susceptible to the power if otherwise available.
GAUDRON J: So really you have to say it was absorbed by 1991, do you?
MR MAXWELL: No, your Honour. The question is whether the power existed at the date of its exercise, and against us is the argument that he had become a criminal in 1991 relevantly and Justice Callinan would say you could not take any account of his continued residence in Australia after that. We would argue, for the reasons given earlier, that you would.
GAUDRON J: Well, assume you be right. The best you can say is there was no likelihood of his returning voluntarily to his country of birth.
MR MAXWELL: Yes.
GAUDRON J: But he was from 1991 at risk of being deported.
MR MAXWELL: Yes, your Honour, we accept that.
GLEESON CJ: And of the seven years that elapsed between July 1991 and July 1998, how much time did he spend in custody?
MR MAXWELL: Your Honour, if I might give you that. The chronology as prepared shows dates of release but not with any clarity dates of imprisonment.
GLEESON CJ: All right, you can let us know after lunch.
MR MAXWELL: I will, your Honour.
GLEESON CJ: And was the process of absorption continuing while he was in custody?
MR MAXWELL: In our respectful submission, yes.
GAUDRON J: Even though he was at all times from 1991 at risk of being deported, at actual risk, which is why I asked do you assert absorption before 1991? I would have thought myself that a person who was at risk of being deported - I mean a real risk - had satisfied the circumstances which enlivened the power to deport if he had not already been absorbed could not thereupon become absorbed for the purposes of becoming a non-alien. I would have thought it was fairly axiomatic that absorption meant not at risk of being deported.
MR MAXWELL: Though, that, as your Honour has pointed out, was his legal position, doubtless unknown to him, at least initially. We would draw an analogy with the immigration absorption cases and submit that if the power to deport were based only on a power with respect to immigrants then it would be a proper question to ask whether, taking into account the whole period up to the point at which the decision was made, the person had become a member of the Australian community or applying the different definitions.
That is to say, it is a valid question which is validly asked at the date of the decision, notwithstanding that there has been a period of imprisonment, or, looking back to the date of the offence, a period of risk in the way your Honour puts it.
GAUDRON J: Real risk.
MR MAXWELL: Real risk.
GAUDRON J: Yes. And real risk not only of being deported, of a citizenship application being rejected if such application were made.
MR MAXWELL: Yes, your Honour.
GAUDRON J: That must tell you something about absorption, must it not?
MR MAXWELL: Not as we understand the concept.
GAUDRON J: It is your concept. You made it up so I suppose you are entitled to answer it that way, but I - - -
MR MAXWELL: Yes. As I have just sought to argue, if the test as defined in Walsh and Johnson is persons who have made their homes in Australia and become part of its people - - -
GAUDRON J: That is for the immigration power.
MR MAXWELL: For the immigration power, but, for the sake of argument, we apply that here. That is not about citizenship. That is about - - -
GAUDRON J: You do not accept that that at least for the purposes of naturalisation or the acquisition of non-alien status there must be a different test?
MR MAXWELL: No we, with respect, think the contrary is the case, that the considerations which have led this Court to say there is a point at which you can cease to be an immigrant apply with equal force to the proposition that there must come a point where you can cease to be an alien, in the way his Honour Justice Kirby has said. It is a question of degree but it is, in our respectful submission, an intelligible proposition and there is nothing so special about the notion of alienage as defined by this Court as would render that concept inapplicable to it. A relationship of allegiance can develop over time.
GAUDRON J: And it can develop one way, even though you are at risk of being deported and there is a real risk that an application for citizenship would be rejected?
MR MAXWELL: Yes, your Honour. If the relationship is, as Justices Hayne and Gummow said, to be viewed from the perspective of the person, the individual, then it is, in our submission, coherent to say the individual, albeit having been convicted and served a time of imprisonment, continues to regard Australia as his home and regards himself as bound by the laws of Australia, subject to them, serves his time, is as much regarding himself as a member of the community as any other person who breaches the criminal law, serve the sentence and is released, and that the criminal conviction is not a disqualification from membership of the Australian community, nor from the assumption of obligations of obedience. It is true that the person has been disobedient, but that is not the same as saying that person owes no allegiance to the Queen of Australia. They are not, in our respectful submission, the same.
GAUDRON J: And does it matter, you say, if the Parliament has identified conditions which will not satisfy its test. They are not relevant even as a factual consideration or what?
MR MAXWELL: They are not exhaustive. They are relevant in this sense, that what the citizenship oath now requires, as we read out to your Honours before, is loyalty to Australia and its people. That is why, we respectfully submit, that makes the formal act less significant than it might otherwise have been because it is really a declaration of a pre-existing state of affairs. I am part of Australia and its people. I do respect the rights and liberties of others, and I do obey and will obey the laws. I may choose to make that a formal declaration or I may demonstrate it by my conduct.
GAUDRON J: But it is a two-way street where there is a formal declaration.
MR MAXWELL: That is so but, as your Honour Justice Hayne said, if I am a non-alien by virtue of my conduct and I go to court and plead my case, the sovereign affords me the protection of the laws of Australia. It does not say, "You're not a citizen. You can't be here." It says you have a right under Australian law - - -
GUMMOW J: Nor does it say, "You're not an alien."
MR MAXWELL: No, with respect, that is so, but the protection of the law is afforded to me whether I have taken out citizenship or not.
CALLINAN J: Mr Maxwell, can I just raise a matter with you before lunch. It seems to me that there may be a majority in Patterson for the proposition that absorption can occur but that the decision only covers absorption of a British subject before the Australia Acts. I think there is a majority for that, and that stems from paragraphs [50], [90], [122], [124], [125], [290], [304], [373] and [378]. I see a junior is making a note of this - - -
MR MAXWELL: Yes, your Honour.
CALLINAN J: There were four Justices: Gaudron, McHugh, Kirby and myself. It does seem to me that there is a majority for that but not for any other propositions. Now, would you, and the Solicitor perhaps, think about that because I would like to hear some submissions as to precisely what Patterson stands for.
MR MAXWELL: Yes, your Honour. I am indebted to your Honour for that.
GLEESON CJ: Mr Maxwell, how long do you think you will need to complete your submissions?
MR MAXWELL: I would hope no more than 20 minutes or half an hour.
GLEESON CJ: Mr Solicitor?
MR BENNETT: I would have thought, your Honour, an hour and a half or so.
GLEESON CJ: We will resume at 2.00 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.00 PM:
GLEESON CJ: Yes, Mr Maxwell.
MR MAXWELL: Your Honours, if I might deal just with a factual matter about length of time in gaol. Mr Te has spent five years and nine months in prison.
GLEESON CJ: Of that seven years?
MR MAXWELL: Yes, your Honour, since offending began, out of the 15 years from 1983 to 1998, being the total period of - - -
GLEESON CJ: Well, that tends to suggest that unless the process of absorption can continue in prison, he had better have been pretty well absorbed by 1991.
MR MAXWELL: That is so, your Honour, and we have argued and do not repeat the argument that the process of absorption can continue, save for one rider. Her Honour pointed out the person becomes at risk pursuant to the deportation provisions upon the conviction - committing of the relevant offence. If the person with the power to deport fails to exercise that power for some period of years, that is an acquiescence in the continued residency of the person in the country and, in our respectful submission, that buttresses the point that the process of absorption can continue.
The sword hangs over but the step is not taken and subject to the argument about whether time in penal servitude is ineligible for consideration for absorption - and we have argued that it is not ineligible, a fortiori, where you have a family network with which you remain in contact during those years - then it is significant that during that time the sovereign acquiesces in your continuing membership of the community.
KIRBY J: So you say being in prison in Australia is still being in Australia?
MR MAXWELL: Yes, your Honour, and if your Honour asked that of any person in prison today, he or she would say, "Yes, I am in Australia, I am a member of the Australian community and I have done the crime and I am doing the time."
GLEESON CJ: In Australia.
MR MAXWELL: Yes, in Australia, as the Chief Justice says. Your Honours, if you might have at hand Patterson, in response to the invitation from Justice Callinan, we will seek to answer the question, "What did Patterson decide?". We began these submissions by saying, Patterson decided that there was a category of non-alien, non-citizen, and we adhere to that submission. True it is the only person with respect to whom that question arose was a person who was a British subject, but our submission is that does not exhaust the limits of that category.
We submit that, on a fair reading of the judgments, all or almost all of the members of this Court accepted that allegiance was the touchstone for alienage, allegiance not citizenship. If I might start with Justice McHugh at paragraph [114]. I do not propose to read the paragraphs, but it is convenient if I draw your Honours' attention as we go through. At 114 on page 1459 of the Australian Law Journal Report, his Honour begins with the notion of "alien" and "the Latin alienus" and addresses in that paragraph the concept of allegiance. His Honour said after footnote 83:
A subject of the Crown owed allegiance to the sovereign; an alien did not -
and quoting Sir William Holdsworth towards the foot of that column:
the common law rules concerning subjects and aliens:
"...centre around the doctrine of allegiance; for it is the duty of allegiance, owed by the subject to the Crown, which differentiates the subject from the alien".
We would then take your Honours to [121]. We note that the Minister there argued that the aliens power could not: "be confined to common law notions of allegiance", and that it was: "open to the Parliament to treat as an alien any person who is not an Australian citizen". Your Honour Justice McHugh said, further down that paragraph:
in my view, the terms of the Constitution make it clear that, at least until the passing of the Royal Style and Titles Act 1973 (Cth), a person, living in Australia, who owed allegiance to the Queen of the United Kingdom was not and is not an alien within the meaning of the Constitution.
Finally, at [132], your Honour said:
Once it is accepted -
this is at page 1463, right-hand column -
that a person is the subject of the Queen for the purpose of the Constitution, that person cannot be an alien for the purpose of the Constitution. It is not a matter of Australian citizenship - - -
KIRBY J: "A term that the Constitution does not use - - -
MR MAXWELL:
- - - does not use - but of the distinction that the Constitution draws between a subject of the Queen and one who is not, that is to say, an alien.
Justice Gaudron, if we could go back - I have dealt with Justice McHugh first because Justice Gaudron does not, in Patterson, deal so explicitly with the notion of allegiance, but rather, at paragraph [47] on page 1449, the end of the paragraph, making this statement:
the law could not be classified as a law with respect to naturalisation of aliens, for that power is wholly concerned with the relationship of individuals to the Australian community.
Now, your Honour does go on, in this case and in Nolan, to conclude that "citizenship has become the sole criterion for membership of the Australian body politic". That is not a view shared by other members of the Court. Once we have finished in Patterson I will take your Honours briefly to Nolan where your Honour Justice Gaudron dealt with concepts of allegiance at 191 to 192 in these terms. Your Honour speaks of:
the criterion for admission to membership . . . of the body politic of Australia changed from allegiance to the Crown to citizenship involving allegiance to the Crown in right of Australia.
So in your Honour's analysis, allegiance was before and after the change, the criterion of membership: "allegiance to the Crown" changing to "citizenship involving allegiance to the Crown in right of Australia." Our argument is you can have allegiance to the Crown in right of Australia otherwise than by formal citizenship.
If we might then turn to the joint dissenting judgment at paragraph [224]. Your Honour the Chief Justice agreed with the reasoning of this judgment in paragraph 1 of your Honour's judgment. This is the section, paragraphs [224] and [225], which we have sought to summarise in our outline and have referred to in the argument this morning, as setting out general statements of principle about the character of the relationship of allegiance. Your Honours said at [225]:
It is important to recognise that questions of allegiance and of alienage require identification of a relationship to which there are two parties: the individual and the sovereign power.
Then your Honours go on to make the point, which I have already referred to, about the cessation of that relationship and how it can come about, and the need:
"to identify the sovereign power to whom the individual is said to be alien.
That, we would submit, is true whether it is a monarchy or a republic if there is a sovereign power in the nation to which a person is either owing allegiance or is an alien.
GUMMOW J: There is a point made at a paragraph [227] which I do not think the other judgments address, really, which is the significance of the events of 1952-1953.
MR MAXWELL: Yes, your Honour, and we would refer to the last four or five lines of that paragraph, where your Honours say:
it was plain that in so far as notions of allegiance were concerned the sovereign had several and distinct politic capacities.
That is a reference back to what is said in the middle of paragraph [224] where your Honours referred to Chief Justice Coleridge and the allegiance being:
due from subjects to the Crown in "the politic" not the "personal capacity" of the sovereign.
So we respectfully submit that although your Honours were in - - -
GUMMOW J: Paragraph [227] is important because this gentleman arrived in Australia after those events.
MR MAXWELL: Yes, your Honour.
KIRBY J: But, in fact, did the recognition of the several capacities of the Crown not go back to the Statute of Westminster at some undefined time after the 1920s when, I think, Justice Isaacs said in this Court that the Crown is one and indivisible throughout the Empire, something happened. So it probably was even before 1953.
MR MAXWELL: Yes, your Honour. The important thing is that, in our submission, this joint judgment, though a dissenting judgment in the result, is affirming that allegiance, the presence or existence of it, is the determinant of whether a person is an alien or not and the use in the first sentence of [225] of the phrase "questions of allegiance and of alienage", in our respectful submission, are open to no other reading.
GUMMOW J: The matter is perhaps best explained by Prime Minister Menzies, not surprisingly I suppose, in the second reading speech for the 1953 Bill which is in Hansard for the House, 18 February 1953, page 52.
MR MAXWELL: I am indebted to your Honour.
GUMMOW J: Anyone who reads that gets a very clear idea of what the man at the centre of a number of events thought about it and who was also a constitutional lawyer. The answer is clear as a pikestaff: by 1953, sadly in his view, there had been division.
MR MAXWELL: Yes, your Honour, and what follows from that is that what was allegiance to a one and indivisible Crown became, relevantly for Australian purposes, allegiance to the Crown in right of Australia. But the requirement of allegiance did not change. The analysis assumes that, the continuation of that criterion.
If we might then go to Justice Kirby at [276]. Your Honour there said in the second sentence:
Within that document -
being the Constitution -
at least at 1900, the repeated references to "subject of the Queen" represented the precise opposite of "alien". At that time, by the common law and the then understanding of the Constitution, there is no possible doubt that a "subject of the Queen", wherever born and however owing that allegiance -
so your Honour is using "subject of" and "owing allegiance" as synonymous, in our respectful submission, correctly -
was not and could not be an "alien" for Australian legal purposes . . . in 1900 understandings of that word, a person owing allegiance to the Crown and the monarch of the United Kingdom could not, constitutionally, be an "alien" in Australia.
Then at [280] your Honour refers to British subjects having entered Australia. About six lines from the end of the paragraph:
That protection derived, in effect, from the fact that they shared the nationality of the people of the Commonwealth, in the sense that they shared a common allegiance. They were thus entitled to the protection of the Crown in its Australian dominion. They were not "aliens".
The same notions keep coming, allegiance, protection, not aliens. Finally, at paragraph [306] your Honour referred to a second argument for the prosecutor, Mr Taylor. It derives from the idea which your Honour describes as:
essential to the legal status of alienage. It is an idea of a technical kind. As explained, it is bound up in notions of allegiance and duties of loyalty.
Your Honour makes the point, then, as at 1900 no distinction was drawn:
between those born overseas and those born in Australia -
Then Justice Callinan at [372] said in the second sentence:
For a long time, it could not seriously be doubted that a British subject of the Queen living permanently in Australia was also an Australian.
Your Honour then referred further down that paragraph to a passage from the dissenting judgment of Justice Gaudron in Nolan:
"... in the case of a community whose membership is conditional upon allegiance to a monarch, the status of alien corresponds with the absence of that allegiance.
Your Honour appears to be referring to that with approval. Your Honour goes on to say in [373]:
In the same way as the evolutionary process . . . transformed the meaning of the monarch as used in the Constitution, that process should also have transformed a subject of the monarch born in the United Kingdom - but having lived permanently as a subject of the monarch in this country for the period that this prosecutor has - into one of the people of Australia and a citizen of this country.
Now, that last statement includes an element of absorption, in our submission. Your Honour is talking about:
for the period that this prosecutor has -
and living permanently has become:
one of the people of Australia and a citizen of this country.
Critically, the point is, "Are you the subject of the monarch?", which is synonymous, in our submission, with saying, "Do you owe allegiance to the monarch of this country?"
KIRBY J: The one thing that is clear about this case is that neither of your clients, one from Vietnam and one from Cambodia, were a subject of the monarch.
MR MAXWELL: In his country of birth, no. Each of them, in our submission, has become a subject of the Queen and owes allegiance to her and to no other sovereign power.
KIRBY J: Even though there was a simple lawful provided means to do so by naturalisation.
MR MAXWELL: Yes, your Honour.
KIRBY J: It was available but was not taken advantage of.
MR MAXWELL: Now, if that analysis is right that I have just taken the Court to, and including her Honour's judgment in Nolan, every member of this Court is accepting that allegiance and alienage are issues which go together.
GAUDRON J: I do not think I did. If you read the last sentences referred to at paragraph [372] in Justice Callinan's judgment, I said:
At least that is so where the criterion for membership of the community remains constant."
MR MAXWELL: Yes, your Honour. Might I take your Honour to Nolan 165 CLR because it is important to draw attention to the passage I mentioned a moment ago. The relevant passage is at 191. For completeness, I should draw the Court's attention to 189 where the passage quoted by Justice Callinan is taken from, the last full paragraph on the page. Your Honour also refers there to:
membership of the community depends on citizenship -
but his Honour cited the next part of that passage talking about membership depending on allegiance. But, in your Honour's view, relevantly - the passage begins at 191, at the start of the last paragraph on that page. Your Honour said:
As at 1967 (and at least for some time thereafter) persons resident in Australia were, as a matter of law, members of the community constituting the body politic of Australia by virtue of their allegiance to the Crown i.e. by virtue of their being British subjects.
Then, in the next paragraph, your Honour says:
It is unnecessary to identify precisely when the criterion for admission to membership of the community constituting the body politic of Australia changed from allegiance to the Crown to citizenship involving allegiance to the Crown in right of Australia.
So as we read that, with respect, your Honour is saying allegiance was a continuing necessary characteristic of the - - -
GAUDRON J: I was not saying it was a constitutional characteristic. I am describing what came about. But anyway, if you wish to - I do not think anything turns on it, but I do not think, for my part, that one necessarily has to adopt the view that "allegiance to the Crown in right of Australia" is a constitutional requirement.
MR MAXWELL: But as we understand your Honour's judgment, your Honour is saying an alien is a person who is not a member of the body politic. The criterion for membership of the body politic is allegiance to the Crown in right of Australia exhibited by citizenship.
GAUDRON J: No, not at all. To citizenship - - -
MR MAXWELL: Being allegiance to the Queen.
GAUDRON J: - - -which as it happens to, by reason of statutory arrangements, probably involves allegiance to the - - -
MR MAXWELL: I accept the distinction, with respect.
GAUDRON J: Yes, but I do not think there is anything that I have said, I may be wrong, which suggests that allegiance to the Queen of Australia, if there be such a person, is a constitutional requirement.
MR MAXWELL: And certainly your Honour did not say that in Patterson - - -
GAUDRON J: And I do not think I said it in Nolan.
MR MAXWELL: I accept that, with respect.
KIRBY J: Citizenship itself is not a constitutional requirement.
MR MAXWELL: Indeed. Then if I might - conscious of the time - the specific holdings in Patterson, in our respectful submission, are as follows: your Honour Justice Gaudron at paragraph [51] held that Taylor was a member of the Australian body politic and not an alien. your Honour Justice McHugh held at [131] and [132] and [136] that Taylor was a subject of the Queensland of Australia and not an alien. Your Honour Justice Kirby held first that Taylor had been absorbed, at paragraph [304] and, secondly, that he owed allegiance to the Queen [306] and could not lose that status as a non-alien [308]. Justice Callinan held at [373] and [378] that Taylor was a subject of the monarch in Australia and therefore not an alien.
In our respectful submission, at least the last three, Justices McHugh, Kirby and Callinan, are all talking in terms of being a subject of the Queen and owing allegiance to her. Your Honours' criterion expressed quite differently, is membership of the Australian body politic.
The other thing that Patterson plainly decided, in our respectful submission, was that Nolan should be overruled and we refer to Justice Gaudron at paragraph [39], Justice McHugh at paragraph [90], Justice Kirby at paragraph [300] with whom Justice Callinan agreed at paragraph [377]. That was the view of the majority of this Court. The bases vary. Justice Kirby, in particular, refers to the erroneous treatment of non-citizen and alien as synonymous. That is why Nolan should be overruled, because it did treat those two as exhausting the sphere of discourse.
GAUDRON J: Yes, but what you have to do is say it is not synonymous with naturalisation.
KIRBY J: Mr Taylor had not been naturalised.
GAUDRON J: He did not have to be.
KIRBY J: Many British subjects since have been naturalised but he was never naturalised, so he fell somewhere between - he was not a citizen, he had never been naturalised. He had been a subject of the Queen in right of the United Kingdom. He came here and somehow he was not an alien. You say that if Taylor stands for anything, it is that the criterion "citizen/non-citizen" is not accepted by the majority?
MR MAXWELL: That is so.
KIRBY J: It could not be that Mr Taylor would have had to be removed.
MR MAXWELL: As his Honour Justice McHugh put it, it is not a question of Australian citizenship. We draw your Honours' attention to the references in the judgments to the proposition that it is for the Court, not the Parliament, to determine the outer limits of the aliens power: the Chief Justice at paragraph [7], Justice Gaudron at paragraph [43], the joint judgment at [238] and Justice Kirby at [297].
Your Honours, the first of our three limbs is renunciation followed by the acceptance of protection as refugees and the assumption of an obligation of obedience. That each of them was a refugee was found by the relevant tribunal. In the case of Mr Te, this is recorded in the application book at 283; in the case of Mr Dang, case stated book 32 and 40. In the case of Mr Te, he came on a Cambodian refugee humanitarian visa - see application book 161 - and in relation to the circumstances of his departure, see application book 272 in relation to the activities of the Khmer Rouge as they affected him and his family.
In relation to Mr Dang, the department acknowledged in the materials that Mr Dang had been a refugee at the time - see case stated book 90 and 99. As to the circumstances leading to his needing to be a refugee following the communist takeover in Vietnam and the gaoling of his father and the confiscation of their property, see case stated book 100. The aspect of protection as being the foundation of the entitlement to refugee status and as being the crux of what the receiving country offers is to be found in the text of the Convention and the definition of "a refugee" - and I will not take your Honours to it - is in the materials.
As regards the reciprocal nature of protection and allegiance, we would draw your Honours' attention to Joyce at page 370 point 8 and to what his Honour Justice McHugh said in Patterson at paragraph [125]. If that is right, it creates no general principle of the kind to which our membership of the body politic and absorption arguments are directed but it would involve the holding that where someone has been granted protection as a refugee, there is as a legal consequence of that the establishment of a relationship of allegiance.
KIRBY J: Can I just ask something - I perhaps ought to know this, but in footnote 7 in your consolidated submissions, you say that:
a draft statement has been prepared. . . is under consideration -
of the respondent.
MR MAXWELL: In the event, your Honour, it was filed as a chronology, and your Honours should have a chronology in each matter.
KIRBY J: I have the chronology. That is all it is, is it?
MR MAXWELL: That is all it is. There was no statement of agreed facts.
KIRBY J: But the chronology is agreed, is it? Is the chronology agreed, or not?
MR MAXWELL: Yes, your Honour - well, as far as I know. It is not a formally agreed document. In relation to - - -
GUMMOW J: Does that mean there is a dispute about fact?
MR MAXWELL: Not as far as I am aware.
KIRBY J: Well, in due course, we will have to get that - - -
HAYNE J: More importantly not as far as I am aware. I thought I had effectively verballed the parties on more than one occasion.
KIRBY J: I only asked the question because of footnote 7, and I was wondering if there was a document I did not have.
MR MAXWELL: No, that was merely a procedural issue. There was no, and, to my knowledge, is no issue about any of it. It was just a matter of the form in which the facts were presented.
KIRBY J: I just want you to know that I read your footnotes.
MR MAXWELL: I am indebted to your Honour. It was because, I think, the practice direction which now prescribes the content of submissions asks for a chronology that we were directed to prepare it in that form.
In relation to the indicia of absorption, we refer to the cases cited by Justice McHugh at paragraph [105], being the line of cases starting with Walsh and Johnson. We refer in particular to these pages in Walsh and Johnson, 61 to 62, 64, 138 and to the citations of Walsh and Johnson in Ex parte Henry, which is in the material, at 374 by Justice Gibbs, and 383 by Justice Jacobs. We also refer, in this context, to Potter v Minahan in [1908] HCA 63; 7 CLR 277 at 308, where his Honour Justice Isaacs referred to somebody becoming:
a constituent part of the community known as the Australian people.
That phrase was applied by your Honour Justice Gaudron in Nolan at 194, and in the joint dissenting judgment in Patterson, at paragraph [246].
In relation to Mr Dang's imprisonment, your Honours will find that that is set out in the case stated book, at page 12 to 13. He spent "663 days in prison serving sentences for convictions" of various kinds - I withdraw that:
794 days in prison on remand in connection with various charges which did not result in convictions -
Finally, as regards the incidence of permanent residency, my learned friend the Solicitor assures me that there is no short answer to the question, but it is our common understanding that ordinarily, the grant of permanent residency, as was granted to each of these applicants, carries with it an entitlement to go and come back. That is the ordinary case, and it is the understanding of the Commonwealth that that was the position of each of these applicants, that is to say, he could go and come back, as Mr Dang did.
If the Court pleases.
GLEESON CJ: Thank you, Mr Maxwell. Yes, Mr Solicitor.
MR BENNETT: If the Court pleases. Your Honours, I will deal with the constitutional issue, and my learned friend, Mr Gunst, will deal with the question of whether, for the purposes of the immigration power, these applicants were absorbed into the Australian community. It is convenient to start with the Constitution. When one looks at the wording of placitum (xix), the words are: "Naturalization and aliens", and, of course, they appear in the section which also refers to immigration, in a separate part - immigration with emigration.
What is important about this placitum is that it contains two concepts which, in a sense, are presented as mirror images. The placitum is not a placitum authorising the Parliament to deal with people who are not aliens, as such. It is a placitum authorising the Parliament to deal with aliens and to deal with the process and the conditions under which aliens become non-aliens.
GUMMOW J: Yes, for example, a law would be a law with respect to aliens if it said that aliens were not permitted to own land in Australia.
MR BENNETT: Yes, precisely, your Honour.
GUMMOW J: Which is so in a number of other countries.
MR BENNETT: Yes, it is, it is. It is of interest in construing it to look at what occurred with the Federal Council of Australasia because this cast some light on the understanding of these terms at the time. I have the copies of the Federal Council of Australasia Act 1912 and the naturalisation legislation which it passed, I have copies of those for your Honours. What is significant is this: one of the powers given by the Imperial Parliament to the Federal Council under the Federal Council of Australasia Act was a power over naturalisation of aliens. It was not the broader power of naturalisation and aliens that we have. That appears in section 15(i) and it was:
Such of the following matters as may be referred to the Council by the legislatures of any two or more colonies -
and one of them was:
naturalisation of aliens.
It is one of the few things they actually did pass an Act about and it was passed on the reference of Queensland and Victoria - your Honours recall, of course, that New South Wales never took part in the Federal Council - and I have given your Honours the Act. It was passed in 1897, so it would have been something of which the drafters of the Constitution would have been well aware. That Act provided a sort of reciprocal recognition, rather like that which exists now in relation to professions, in relation to naturalisation amongst the colonies.
KIRBY J: Where is the Act? I only have the Federal Council of Australasia Act. Should we have another Act?
MR BENNETT: Yes, it says Federal Council of Australasia at the top and then underneath 1897. If your Honour has that, it is the - - -
KIRBY J: No, I do not have it. I only have 1885 which is the Act of the Imperial Parliament establishing the Federal Council of Australasia.
CALLINAN J: Yes, it is all I have too.
MR BENNETT: I am sorry, your Honour, I apologise for that, your Honour. I had thought these were bound together.
KIRBY J: It is the one page on the front. I am sorry, I thought that was a cover sheet.
MR BENNETT: Yes, I am sorry, that is the whole of the Act. It was a very hard-working council, this body. This one of the nine, I think, Acts it passed in its entire existence.
KIRBY J: Let us not jest at it, it was the beginning of our federal statutory movement towards the Constitution.
MR BENNETT: It was, your Honour, yes, it was.
KIRBY J: Fifteen years in the history of a nation is nothing.
MR BENNETT: Yes. Something, your Honour, one of the things was the Australasian Naturalisation Act which is this Act and your Honours will see it has only two operative sections. The first is section 2 that:
If any person has been or shall hereafter be naturalised in any Colony to which the provisions of this Act extend -
we cannot find anything anywhere saying what those colonies were, but it does not matter very much -
and shall prove to the satisfaction of the naturalising authority that he is of European descent, such authority shall grant to him a certificate thereof -
and
3. Any person of European descent heretofore or hereafter naturalised in any Colony to which the provisions of this Act extend shall, upon having fulfilled any conditions of residence imposed . . . be entitled to all rights, powers, and privileges, and be subject to all obligations and disabilities to which a person of European descent naturalised in such other Colony -
So all it did was to say that if you are of European dissent and you were naturalised in one colony and then you went to another colony and produced evidence of those matters and complied with their residence requirements, your initial naturalisation would be recognised.
KIRBY J: Who, by the way, was Governor Gormanston who signed it who had the authority to sign it into law?
MR BENNETT: The rules were that whichever - they sat in different colonies - - -
GUMMOW J: They sat in Hobart here.
MR BENNETT: Hobart was the first one, yes, and whichever colony they sat in, the governor of that colony would sign it, although in some cases in relation to Tasmania, the Governor of Victoria appears for some reason which I do not understand to have signed under some delegation from the Governor of Tasmania. But, in any event, I am not sure what State he was Governor of - I think, but I am not sure which colony, it does not matter, your Honour.
KIRBY J: It is only historical interest
MR BENNETT: I have excluded from this the proclamation which was initially attached to it. It seemed unnecessary. The importance of it for present purposes is this, that, first of all, this legislation and the underlying legislation to which it refers clearly recognised that a person who was not of European descent could be resident in a colony and live in a colony for the whole of his or her life and never become naturalised.
Now, the relevance of that, of course, is that naturalisation was seen as something necessary to convert an alien into a non-alien. It seems to have been implicit in this legislation that at least persons who were not of European descent, who therefore were not naturalised, would be able to reside for long periods without that occurring.
KIRBY J: That was because many of them were British subjects and the British Government was constantly pressuring colonies such as the Natal colony and Australia and New Zealand and others not to make these distinctions on the ground of European descent, because most of the subjects of the Crown were not of European descent. This was a matter of the greatest controversy at the turn of the century.
MR BENNETT: It was, your Honour, because also a great many would have been Chinese who would not have been subject - - -
KIRBY J: This is why the dictation test came in because it allowed, on the face of the statutes, to have a colour-blind provision but in truth to have a European descent requirement.
MR BENNETT: Yes. But the relevance is the recognition that a person could remain an alien notwithstanding a long period of residence.
KIRBY J: They were not an alien if they were a subject of the Crown.
MR BENNETT: No, they were not, your Honour, but others were. We submit that what - - -
KIRBY J: Why were they not an alien if they were subject of the Crown? Allegiance.
MR BENNETT: Yes, your Honour, but allegiance because - - -
KIRBY J: Nothing to do with citizenship. That was a concept that was just absent. It was thought to be a republican concept, not present.
MR BENNETT: That is so, your Honour, but not local allegiance. Not the sort of allegiance Joyce owed, but allegiance based on either birth or, in some cases, naturalisation. The suggestion my learned friend makes is that in some way naturalisation, because of the constitutional nature of the doctrine, can occur in ways which do not involve the express approval of the sovereign and which cannot be taken away by a statute.
Now, that is something, your Honours, which does not come from anywhere. He reaches that result, at the end of the day, by taking dicta from various judgments in this Court and from various articles and textbooks and some English authorities and without exception, we would submit, taking them out of context. That can most clearly be illustrated by the only two passages which are referred to for this purpose in his submissions and which might be thought to support him in Patterson and Taylor. Could I just show your Honours those two passages.
The first of those is the passage from Justice Gaudron's judgment in paragraph [33]. What your Honour is saying there, with respect, is what is said by many authorities, many article writers, textbook writers and judges on many occasions, which is to describe an attribute of non-alienage or of what used to be called "nationality", that is:
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.
Now, stopping there. Your Honour is not talking there about how you acquire that status. What is being discussed is a characteristic of it. That is made clear by what her Honour says in paragraph [42], where your Honour says:
For present purposes, the most significant legislative development with respect to membership of the Australian body politic was the introduction in 1948, of the concept of Australian citizenship. With the enactment, in that year, of the Citizenship Act, Australian citizenship became a criterion, but not the sole criterion for membership of the Australian body politic. Australian citizenship did not become the sole criterion for membership until the coming into effect of the 1984 Act in 1987.
Now, that is totally inconsistent with construing paragraph [33] as meaning that a person who comes into the community becomes a member in some way and thereby ceases to be an alien. It is just not what your Honour is saying. That really is what my friend is doing in virtually all his submissions.
I will take your Honours to one other example in Patterson and then leave the submissions because I do not propose to go through them all. In paragraph [304] of your Honour Justice Kirby's judgment the same thing occurs. My friend, in his submissions, lights on the two sentences just over halfway down paragraph [304], beginning "At least in his case" just above line 35. Your Honour said:
At least in his case -
that is Taylor's case:
when the attempt was made to treat him as an "alien" . . . he had been absorbed into the people of the Commonwealth. Once so absorbed, he could not ex post facto be deprived of his nationality status as a non-alien.
"Ah", my learned friend says in his submissions, "there it is. He has been absorbed, ergo, he was not an alien." But that, with respect, is not what your Honour is saying, that a person who is absorbed he is not an alien. What your Honour is saying appears in the beginning of the paragraph where there is a second condition:
If when that person arrived, he or she was a British subject when that status was accorded constitutional and statutory equivalence . . . that person was likewise beyond - - -
KIRBY J: If I can understand what the applicants are saying, they are saying, on the face of the document such as you have handed to us there are three statuses: one is the status of an alien; one is the status of naturalised person; and the other is the status of a subject of the Queen of non-European descent. So that you have that exception and the question that is posed is, is that the only exception from non-alien non-naturalised Australian, or is that the most obvious exception but once you allow the exception are there other exceptions such as the case of the New Zealander who has been here for a very long time or such as the case of the person who comes in as a baby and they try to deport him at the age of 90?
MR BENNETT: May I come to the baby in a moment, your Honour. If I can answer the first part of your Honour's question, my purpose in going to the Federal Council material was simply to show the recognition that a person who was not a British subject could be here a long time and remain an alien. That was the sole purpose of referring to it.
KIRBY J: I know that is the purpose but it does illustrate that there is not a contradiction between alien and naturalised, that there are three categories. You admit it. The Council of Australasia acknowledges it. It has existed since the beginning. There has always been the three categories, not two. That is a contradiction.
MR BENNETT: Yes, but that is a special category existing in relation - - -
KIRBY J: That is the question. That is the question: is it a special category limited to that or is it evidence, an indication that there is a middle ground that has to be filled in? It was filled in in that case of Taylor and it was relatively simply, but to fill it in in other cases, of which this is not factually a very strong example, presents the issue that is before the Court as a matter of principle.
MR BENNETT: Your Honour, apart from my ill-fated attempt in Pochi and my learned friend's case here, I am not aware of anyone, and nor has my friend been able to point to any case, or any authority, for the proposition that a person merely by absorption, living in a place a long time, whatever phrase one wants to use, becoming, in a colloquial sense, a member of the community - use whatever phrase one uses - can move from alien to non-alien.
KIRBY J: You may not have found it, but I can well myself concede the possibility that the Parliament which is given a power over aliens loses that power at a certain time, just as the Parliament loses the power over immigrants.
MR BENNETT: Your Honour, we would submit not. The answer to your Honour's question about the 90-year-old person is, we would submit, very simple. It is of course always open to that person to become naturalised. Assuming the person does not do that, there is nothing surprising about a person remaining what is colloquially called an expatriate or an expatriate citizen for a very long time. There are communities in Europe, Germans in Romania, for example, where people have lived outside their home country for hundreds of years. That cannot happen in Australia because we have Australian citizenship, and therefore non-alienage, acquired by birth in Australia, so we are only talking about one generation here. But the 90-year-old who is totally absorbed who never bothers to obtain Australian citizenship is really the hard case that proves the law.
KIRBY J: Do you support the other hard case that Justice McHugh mentioned, that even if a person becomes a citizen of Australia, once an alien, always an alien, and they can be stripped of their citizenship and removed?
MR BENNETT: Yes, your Honour. That was what Justice Starke decided in - - -
KIRBY J: Do you support that proposition?
MR BENNETT: Yes, your Honour. As a matter of power, yes.
KIRBY J: Well, it is a monstrous thought.
GAUDRON J: There has not been any challenge, as I understand it, to the law which deprived Australian-born people of their citizenship upon their acquiring a foreign nationality.
MR BENNETT: No. That is a very - - -
GAUDRON J: It has always, I think, been accepted that if there is some relevant change in the relationship between the individual and the State, they can - - -
GLEESON CJ: That is what happened to Mr Murdoch, is it not?
GAUDRON J: Yes. They can be stripped of their nationality and that can happen whether it is acquired by birth or by naturalisation.
MR BENNETT: Precisely, your Honour.
GUMMOW J: It happened to the inhabitants of Papua New Guinea.
MR BENNETT: Yes.
McHUGH J: Despite the XVI Amendment in the United States Constitution, stripping Mafia gangsters of their citizenship was the way United States authorities removed many Mafia - Mr Frank Costello and many others.
KIRBY J: So Justice Starke's decision does not stand for the proposition "once an alien, always an alien". You can just take anyone's citizenship away. I would have to be convinced of that.
MR BENNETT: Your Honour, can I just take it in stages. It does not stand for "once an alien, always an alien". What it stands for is that a person who has been naturalised is within the power over - the power is naturalisation and aliens. The naturalisation part, the person is in so long as the person has never been naturalised. What is done can be undone - contra Lady Macbeth. Your Honour, we can just say this too. Justice Starke had no doubt about it. What was before him was an interlocutory application and he said at the bottom of page 440 of 27 CLR - it is a short passage. Your Honours need not go to it unless your Honours wish:
The Judiciary Act makes it undesirable for any single Justice to declare an Act of the Federal Parliament unconstitutional. Such a decision ought to be obtained in the Full Court, and if the matter appeared to me of any substance, or was even faintly arguable, I should be prepared to refer it to the Full Court. But the matter seems to me to be clear and without doubt. Under the Naturalization Act power is given to admit the nationals of other powers to Australian citizenship and thus confer upon them certain rights and privileges, and we reserve to ourselves, or rather to the Governor-General, the power to take away that citizenship and those rights and privileges in certain cases. It is said that depriving a person of citizenship so acquired is not a law relating to naturalization. I am quite unable to agree with the contention, or to consider that the point is susceptible of reasonable argument.
So his Honour put it very highly. It is of course a single Justice of this Court in 1920, but we would submit that that is not because, as your Honour puts to me, "once an alien, always an alien". It is because the word "naturalisation" carries with it the ability to reverse naturalisation and nothing more.
KIRBY J: This was depriving a German just after the First World War of citizenship.
MR BENNETT: It is like Joyce, it may have been - - -
KIRBY J: Some of these wartime and post-wartime cases are really a little suspect, I think, and I include Joyce in that.
GAUDRON J: Well, I think more recently Mr Murdoch lost his Australian citizenship and that was not - - -
McHUGH J: But he renounced it, I think, did he not?
MR BENNETT: He renounced it, yes. Well, no, it would apply by operation of law, because - I am about to take your Honours to the Australian Citizenship Act, but under that Act by operation of law where you assume citizenship of a foreign power you lose your Australian citizenship.
GAUDRON J: That has not been changed, has it?
MR BENNETT: There has been discussion in the newspapers suggesting it may be, but it has not been yet.
GAUDRON J: Thank you.
MR BENNETT: Your Honours, can I just say this about the Australian Citizenship Act by way of bolstering what your Honour Justice Gaudron said in paragraph [42]. It begins with this preamble - an unusually long preamble ignoring the Native Title Act:
RECOGNISING THAT:-
Australian citizenship represents formal membership of the community of the Commonwealth of Australia; and
Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity; and
Persons granted Australian citizenship enjoy these rights and undertake to accept these obligations
by pledging loyalty to Australia and its people, and
by sharing their democratic beliefs, and
by respecting their rights and liberties, and
by upholding and obeying the laws of Australia.
So the preamble is setting out what is intended to be covered by the concept of citizenship and it is something which is very much the sort of language my learned friend is talking about "formal membership of the community of the Commonwealth of Australia". The two are being equated now. My friend's submission really has to be that this whole Act is invalid for his argument to succeed.
KIRBY J: But he does not need that to attack the Minister's decision in his case. He just has to say that a point is reached on his flimsy factual foundation, in his case, where the Parliament has lost the power and you would construe the Act in a way that was consistent with that. You would not construe it more widely than necessary.
MR BENNETT: Well, your Honour, yes, he would have to say that the Act could not set out to achieve what it sets out to achieve, which is to define the categories of citizenship and limit it, or the categories of non-alienage and limit it.
KIRBY J: At some stage I would be grateful for your submission on, even if there be a point, even if the principle in the immigration cases washes over to and applies, that the facts of this case are such that one would not trouble to define that point because, on any view, this is not a case that would attract that doctrine.
GLEESON CJ: That is Mr Gunst, is it not?
MR BENNETT: Yes, it is, your Honour.
GLEESON CJ: I see.
MR BENNETT: Could I just very quickly show your Honours what the Australian Citizenship Act does.
KIRBY J: It is tied up with the scope of the constitutional power, which I thought you were going to argue.
MR BENNETT: Yes. Well, I am sorry, your Honour. It is the - - -
KIRBY J: Anyway, you divide it up, as long as someone deals with it.
MR BENNETT: Yes. What the Act does is to define in what circumstances you have Australian citizenship. It starts with "birth" in section 10. Then a person who "is adopted by an Australian citizen", which is a sort of anomalous category in section 10A. Then "by descent" in 10B where one is born to Australians overseas and registered at the local embassy, consulate or High Commission.
GLEESON CJ: What section is that?
MR BENNETT: That is section 10B, your Honour. Then there is a special category in section 11 about "descent through the mother", which I will not take your Honours through. Then, in Division 2 it deals with a "Grant of Australian citizenship" and that provides in section 13 "The Minister may . . . grant a certificate of Australian citizenship" if a person is over 18, a permanent resident, understands it and has been present in Australia for certain periods, is of good character, knows English and so on.
KIRBY J: Can you tell us at some stage when these two applicants would have been entitled to Australian citizenship. Is there a fixed time?
MR BENNETT: It depends how one construes paragraph (f) about being of good character I suppose, your Honour, which is one of the elements.
KIRBY J: But the offences that take them into that paragraph occurred after a number of years of their being in Australia.
MR BENNETT: Yes. You have to be present for one year immediately prior two years and been present or a permanent resident for a period of the aggregate of not less than two years during the previous five years. You have to be of good character with basic knowledge of English, and there is no evidence of that.
KIRBY J: So, it looks as you have to be here for five years, and then you look to whether two of the five years were in Australia.
MR BENNETT: No.
for periods amounting in the aggregate to, not less than 2 years during the period of 5 years -
So two years would be sufficient to satisfy that criterion.
KIRBY J: So it is not particularly onerous? I mean, you can move quite quickly to become an Australia citizen if you are a lawful resident of the country for two years.
MR BENNETT: And you have a basic knowledge of the English language and adequate knowledge of responsibilities with privileges of Australian citizenship, and you are likely to reside or continue to reside in Australia, and so on. There are a number of detailed requirements. There are some pages of precise requirements about how you deal with imprisonment and how you count it and do not count it. I will not take your Honours through all that.
The point is that the Act lays down a Code for that certificate. The effect of a certificate is that a person is an Australian citizen after making a pledge of commitment, which has been referred to. That is section 16. You have to make that before any of the following people: the minister, a judge of a federal court, which no doubt includes this Court, and so on. Interestingly, there is a section saying that that person does not have to be an Australian citizen.
In any event, one then comes to a number of sections dealing with loss of citizenship, and one loses it on acquiring another nationality, on renouncing and on....., and then certain people, people who acquire it by virtue of naturalisation can lose it in other ways which include serving in the armed forces of a foreign country at war with Australia, or been convicted of certain offences, and then one can be deprived of citizenship. There are provisions about children of such people. Then provisions about resuming citizenship lost.
KIRBY J: Is this submission directed to showing that the Parliament by this Act has defined what an alien and a non-alien are?
MR BENNETT: Yes, your Honour.
KIRBY J: But that will not stand with the decision in Taylor - the order in Taylor.
MR BENNETT: Your Honour, Taylor requires only one qualification, that is that people in the special category referred to there, which is people who have become Australian citizens by evolution, if I can call it that - well he would not have become an Australian citizen. He would have become merely a non-alien.
KIRBY J: Exactly. Quite. that is the point.
MR BENNETT: Yes. So in that respect there is an exception. But that exception does not affect the overall force of it.
KIRBY J: You can argue that by reason of earlier legislation, which conferred particular and historical and special status to British subjects, non-citizens, that Parliament had acknowledged that they were in an anomalous class and to be treated as equivalent to Australian citizens and non-aliens, and that having had the non-alien status, they had clearly taken away that status.
MR BENNETT: Yes. It would be an interesting question if a person in that position were to apply for an Australian passport, but there is no need to go into that at the moment.
What is significant for present purposes is that these amendments were passed immediately after the decision of this Court in Pochi, and, no doubt, in reliance on it. There are references in the second reading speech which I will not take your Honours to, but, as is apparent from the Act itself and from what it amended, what it does is to change the basis from nationality to citizenship - change the definition which is to be used for the purpose of applying the provisions of the Constitution.
Now, of course, as your Honours said this morning, Parliament cannot widen what is an alien, to bring people within the aliens power, merely by saying so. It could not say "All people of a certain ethnic origin in Australia shall henceforth be aliens". It could not say that "Everyone in Australia is to be considered as an alien", so that the Commonwealth will have power to legislate in respect of them. Clearly, one could not do that. And to that extent - - -
McHUGH J: There are some respectable, historical precedents for it. For example, both Jefferson and Madison said that the Aliens Act of the United States 1798 could not constitutionally be relied on to deport aliens who had lived in the United States for some time, and who were under the protection of the United States. The argument that Mr Maxwell has put today is an argument that Jefferson and Madison - and there is a judgment of one of the United States Supreme Court judges in the 1790s which would support his argument. There is nothing startling about it.
GAUDRON J: But was that because of due process?
McHUGH J: No. The due process clause had not been introduced at that stage.
MR BENNETT: I have not gone through the cases to which your Honour refers, but that was dealing, of course, with a different constitution, with different provisions - - -
McHUGH J: Well, Madison made those statements in his report on the Virginia resolutions, and Jefferson did so in the Kentucky resolutions, but I think Judge Iredell made a statement in court to that effect. I cannot remember whether he decided it in those terms, but I think he did.
GLEESON CJ: Jefferson thought that the Supreme Court could not declare legislation to be invalid.
MR BENNETT: Yes. But, your Honours, we are in not the next century, nor the next one, but the one after that, from those decisions.
McHUGH J: It is now well established in the United States that long-term, resident aliens can be deported.
MR BENNETT: Yes. For the purposes of this case, the proposition I am seeking to put is a much narrower one than that. It is merely that when one has a power over naturalisation and aliens, that necessarily includes the power to prevent a person ceasing to be an alien other than by naturalisation, in a form defined. That, really, is as far as I need to go. The suggestion that one ceases to be an alien by osmosis is one which, in my submission, just has no effective, modern support - and, indeed, no relevant ancient support.
GAUDRON J: Certainly, you could not become a Roman citizen by osmosis, could you?
MR BENNETT: No, your Honour.
KIRBY J: But that was the law of blood. They took the view - they would regard it as unthinkable that somebody just living in a Roman territory could be a Roman. You got it by blood.
MR BENNETT: They had the whole jus gentium to deal with them. Although they did have citizenship by emancipation, if a slave was emancipated.
GAUDRON J: But that did not necessarily make you a citizen of Rome.
MR BENNETT: No, it did not. It depended, who had been your master, I think. It is difficult to say a great deal against a concept which just does not appear to have anything to support it. That, really, is the beginning and end of it. I point to the words of the Constitution and to the fact that the passages my learned friend has referred to are all passages out of context. They are all passages which say, "An alien is a person who does not owe allegiance; an alien is not part of the community" and all those things. But none of them are passages which are concerned with definition, or concerned with how one moves across the barrier from alien to non-alien.
KIRBY J: But could you help me with this. Both the immigration power and the aliens and naturalisation power deal with people - and perhaps goods - coming from out of Australia into Australia. The Court has doctrine in respect of immigration, but you say, that doctrine does not wash over and affect the alien. Now, what is it, in the essence of the two, that distinguishes the application of the doctrine from one case and the other?
MR BENNETT: The nature of the concepts, your Honour. The nature of the concept of immigration is that it is a once and for all act which one does, and then, after a time, it becomes nothing more than an historical fact.
The essence of alienage is that it is a status. It is something attaching to the person. It is a characteristic which requires something positive to change it, whereas, the status of immigrant is merely - that is merely saying, "You a person who got on a ship and crossed the sea". It is the nature of the concepts which dictates it. The very fact that at the Constitution it was possible to have longstanding resident aliens illustrates most clearly that there never has been a process of losing alienage by osmosis.
GLEESON CJ: One way of looking at it is to say that for power to make laws with respect to immigration does not comprehend a power to make any kind of law with respect to anybody who once upon a time immigrated.
MR BENNETT: Yes. It goes a little further because the characteristic of being an immigrant, as a matter of English, I suppose, extends for some period.
GLEESON CJ: It is not a power to make laws with respect to immigrants, it is a power to make laws with respect to immigration.
MR BENNETT: Yes.
GUMMOW J: That is the point, is it not? That is the jumping off point for the absorption doctrine, is it not?
MR BENNETT: Yes, it is. There is a period after - immigration involves an element of intention. A tourist does not migrate to Australia. So immigration involves the concept of the person coming here and making Australia his or her permanent home. That is the reason why there is a period of time after arrival during which a person remains an immigrant, both in the ordinary English use of the word and in the Constitution. One could not say, "I am not an immigrant. My voyage is complete." One could not say that, but one can say, "I am not an immigrant. I have been here X years and I have made my home here and this is my permanent residence. I am no longer an immigrant."
As a matter of English that follows and as a matter of construction. The power over immigration and emigration clearly takes its colour from that. But, naturalisation and aliens, and particularly when the word "alien" is placed adjacent to "naturalisation", is talking about a person's status.
HAYNE J: And that juxtaposition is to be understood in light of such history as the British Naturalisation Act 1870 in which "alien" and "naturalisation" are used as mirror images, or two sides of the one coin.
MR BENNETT: Yes. There was one case whose name I have forgotten, unfortunately, decided in the House of Lords a few years ago involving one of the descendants of one of Queen Anne's cousins where there had been an Act passed in the 18th cntury.
GUMMOW J: Yes, Prince Augustus of Hanover, 1955 AC.
MR BENNETT: Yes. The relevance of that case is - that demonstrates again. That was a case where it was held at the end that because an Act said that this princess and all her heirs forever would be British subjects that someone whose family - - -
GUMMOW J: The question was whether they had to be living at the time of the enactment or whether they might be living in 1955.
MR BENNETT: Yes, and whether, your Honour, they until 1955 had been living in Germany for 200 years, yet they remained British subjects.
GUMMOW J: Yes.
MR BENNETT: That is the other side of the coin. They did not lose their status by osmosis any more than they could gain status by osmosis. Really, all one can say is, nothing suggests it can, except sentences out of context, like the two I have referred to, where people say, "Oh, the status of not being an alien just being a member of the community" and so on. But, you cannot take those statements to mean that by becoming a member of the community, or whatever phrase is used, you cease to be an alien, and that is the leap my learned friend has to take.
If that were right, of course, it would have all sorts of consequences. It would mean, on one view of it, that his clients would be in a better position than some people under the Australian Citizenship Act who have citizenship, by naturalisation, and can have it taken away unless, he says, those provisions are invalid.
GAUDRON J: They would be better off than natural born citizens because they would not have any citizenship to lose on the acquisition of the nationality of a foreign country.
MR BENNETT: Yes, precisely, your Honour. There would be all sorts of anomalies which would follow. Now, your Honours, I do not propose to go through the submissions in detail. Your Honours have the written submissions. May I simply remind your Honours that even in international instruments - in the Convention Relating to the Status of Refugees there are provisions which clearly acknowledge that a person who is a refugee remains a citizen of the country from which he or she is fleeing. That, indeed, is implicit in a great deal of the language of that Convention.
So the proposition that "We renounced our Vietnamese or Cambodian citizenship because we fled from oppressive regimes" is one which simply comes from nowhere. There is no suggestion anywhere that one can renounce one's citizenship simply by saying so, a fortiori, that the Parliament has no power to prevent one doing that. The Parliament is given power over aliens. It is given power over naturalisation of aliens. My friend's proposition requires one to say that it does not have power to prevent people ceasing to be aliens by means other than naturalisation.
We stress also - and this is the answer to many other of the references my learned friend has given - that although he eschews the submission that local allegiance is sufficient to prevent one from being an alien, many of his submissions amount to that. If one looks at the cases in which local allegiance has been referred to - Joyce is perhaps the principal one - it is quite clear that it is a different category from the sort of allegiance that stops one being an alien. Local allegiance is what a friendly alien or a non-enemy alien in one's territory owes. It is what requires a tourist to obey the law of the land.
CALLINAN J: Going back to your first point, Blackstone says that you cannot have renunciation without some concurrent act by the sovereign power to whom the allegiance is owed, which you say that just did not happen here.
MR BENNETT: Yes, precisely, your Honour. But, as we say, it would not matter if they had renounced their citizenships, no.
CALLINAN J: No, but there would still need to be some concurrent act.
MR BENNETT: There still would need to be something.
CALLINAN J: That is sufficient to dispose of the allegiance point, if it is right.
MR BENNETT: It is, your Honour.
CALLINAN J: Is that not so?
MR BENNETT: Yes, we would submit so. The very fact that there is a concept of local allegiance is the explanation of many of the passages which talk about the allegiance owed by a person who remains in a country and who is bound to obey its laws. They are simply talking about local allegiance and local allegiance, by its nature, is what is owed by an alien. The government could pass a Local Allegiance Act if it chose.
CALLINAN J: There might be local allegiance also in respect of persons who are not within Australia if the legislation which binds them to do something is within the territorial reach of Australia but not applying to people whilst they are in Australia.
MR BENNETT: Yes.
CALLINAN J: There are plenty of instances of that, are there not?
MR BENNETT: Yes. There is a case in England, which is a good example, where a person in Germany sent a blackmailing letter by posting it from Germany to England and was convicted in England of the offence of blackmail. That is an example, I suppose, of a sort of local allegiance attracted by doing something outside the jurisdiction which has an effect within it. In the United States of course, there are attempts to extend that in the antitrust context to some very wide consequences.
CALLINAN J: Has not Australia enacted some legislation in respect of paedophilia committed in countries outside Australia?
MR BENNETT: Yes, it has, your Honour.
KIRBY J: It is in the Commonwealth Crimes Act.
CALLINAN J: Does that legislation apply only to Australian citizens?
MR BENNETT: I am not sure how it is limited, your Honour. Whether it is based on residence, domicile or citizenship, I am not sure. Taxation of course can be based on any of those. In the United States one is taxed because one is a citizen; in England because one is domiciled; here because one is resident. So these things can be based on different things. But I am not certain of the answer to your Honour's question. Those, in addition to what appears in our written submissions, are the submissions in relation to the constitutional matter.
GLEESON CJ: Then it is Mr Gunst now, is it?
MR BENNETT: Yes. May I just say this about the bridge between the two arguments which was referred to in one question I was asked. If there is a point at which the reach of the aliens power does cease, if there is, contrary to my submission, it would be a point a long, long way further down the track than the present point and the point would not necessarily be - indeed, would not be - coextensive with the point where the immigration power ceases. So in a sense, my learned friend's arguments that his clients have been absorbed into the Australian community, with which Mr Gunst will deal, do not get him far enough, because we would submit that if there is to be some principle, it would be something which would occur after a very long period of time. There would simply be no reason for saying, "Once one comes and one is absorbed, one at that point ceases to be an alien". That would simply assimilate the two powers, the aliens power and the immigration power.
What that limit is no one can lay down. We have not attempted to lay down something which puts Justice Kirby's 90-year-old person in a separate category. If there is such a category, we would submit it is very small and very longevitous and - - -
KIRBY J: It may be that because of the different wording, "immigration" as distinct from "alien", that the cases on immigration do not exactly apply. My recollection from having sat in a case is that where drugs are brought in, it is not so much the time; it is sort of getting it out of the act of immigration. It is not a matter of 10 years; it is a matter of distancing it from the activity of immigration.
MR BENNETT: Yes. One has it in relation to things like smuggled cars. There is a case, I think, about a car that had been in Australia many years and had once been imported and the question whether it - - -
KIRBY J: What has been said in the immigration cases? Has any criterion emerged as to what point of time one can say a person is absorbed, or have there not been enough cases? It is simply is a matter - - -
MR BENNETT: There have not been enough, your Honour. All that happens is one has a few phrases which are substitutes for the phrase "absorbed" and a few cases which give examples of people who are on one side or the other of the line. There is very little discussion of what it means and, as I say, Mr Gunst will deal with that question.
But my point for present purposes is that whatever period one takes for international trade and commerce and says goods are no longer part of international trade and commerce after some time, whatever period one takes for immigration and says one is no longer an immigrant or subject to the immigration power after some period, if there is some idea that one ceases to be an alien merely by the passage of time and residence in Australia and adoption of Australia as one's home, it would have to be a very much longer period, involving a very much greater degree of assimilation into the community than occurs in relation to those other two powers. There can be no serious question in this case that one approaches anything like that in relation to either of these two prosecutors. May it please the Court.
GLEESON CJ: Yes, thank you. Mr Gunst.
MR GUNST: If the Court pleases. I propose to take your Honours through a short number of cases which are noted in Professor Lane's commentary on the Constitution, which have, as the Solicitor-General has said, used a variety of formulations of words in respect of the question of absorption under the immigration power and it is for that purpose only. Can we hand up a copy.
KIRBY J: You have a proposition to start with that we should be considering the cases as to whether they bear out your proposition? What is your proposition about absorption for the immigration power?
MR GUNST: The authorities demonstrate that there is a point beyond which a person can no longer be said to be an immigrant. The test has been variously stated and variously applied, but words such as "make your permanent home", "marry an Australian", "have an Australian home", "have children here", "have children who are educated here" and so on; these are a number of the indicia that the courts have - - -
KIRBY J: Do you concede that with these two prosecutors that they would fall within those tests and therefore be beyond the immigration power?
MR GUNST: No, we do not. Can we hand up a copy of the relevant pages from Professor Lane's commentary on the Constitution, the second edition, and the starting point of the line of authorities, and there are not many of them, is Potter v Minahan, which is noted at footnote 4 on page 275. Potter v Minahan was noted by your Honours Justices Gummow and Hayne in Taylor at [246] as being the starting point of the discussion in this country of the concept of absorption with respect to the immigration power.
The first and important point to note, though, is if I take your Honours to page 276 where Professor Lane records, under the heading "Immigrant's acts":
As regards an immigrant's intention, can a person demonstrate that he or she "came here with a view to permanent settlement" -
This was dealt with both by Justice Barton in Potter v Minahan at page 298 and more recently by Justice Stephen in Ex parte Henry [1975] HCA 62; 133 CLR 369. At page 378 his Honour Justice Stephen, who is dealing with an immigrant child, expressed the view, as it is recorded in Lane, that until a child is of full age it cannot form the intention to be absorbed into the Australian community.
The relevance of that here is a relevance of several years only, but it is important to note that the applicant Te was born on 7 April 1967. He arrived here in Australia in July 1983 but did not turn 18 until 7 April, 1985. So there would be a short period, a little under two years, when the applicant Te was not of full age and therefore, on these authorities, unable to form the intention to be absorbed into the Australian community. The applicant Dang was born on 29 January 1968. He arrived in Australia on 14 July 1981. He did not turn 18 until 29 January 1986. So there was a period of not quite five years during which he was still an infant.
The next point is to take your Honours to some of the cases that demonstrate the indicia of absorption, as they might be said to be. Perhaps the most important, the most recent exposition of it, was a question of voting; a question of being on the electoral roll and taking part in the political process of this country. It was recited as being the fact in Taylor, for example, by Justice Gaudron at paragraph [30] and by Justice McHugh at paragraph [92]. It was clearly regarded as an important consideration, we would contend, in Taylor for the proposition of absorption.
Can we then go back to some of the older cases that are referred to in Lane. If we go to O'Keefe v Calwell, which is noted at footnote 26 on page 277. Mrs O'Keefe was a person of Chinese nationality, Chinese race, who had returned at a very young age to China but had come back to Australia, had married an Australian citizen, had an Australian home, had children who were going to school here in Australia and had joined her husband's church. All of those things were regarded by Chief Justice Latham as being significant matters in determining whether the applicant had been absorbed into the Australian community, and that is at pages 276 to 277. In like vein, in Walsh & Johnson at page 124, Justice Higgins considered important the fact of being naturalised, the fact of being married in Australia, and having a child as relevant to absorption.
HAYNE J: I would have thought it indisputable that questions of absorption were factual. I would have thought it equally indisputable that we needed to take account of such facts as we have about each of these applicants. At the end of the day, why do you say they were not absorbed? I think that that is a more useful inquiry than simply going through and comparing with facts of other different cases. Why do you say they were not absorbed here?
MR GUNST: Because they had not been here for long enough, because they had not, in one instance, married or remained in a marriage for any particular length of time, because they had not purchased a home or engaged in, apart from some small amount, gainful employment, by which I mean gainful, lawful employment as opposed to dealing in heroin.
GLEESON CJ: And because a significant part of the time they spent here?
MR GUNST: I am sorry, your Honour, yes.
GLEESON CJ: Whereas they were subject to involuntary separation from the Australian community.
MR GUNST: I left out perhaps the most important point, yes, because for significant periods of time they have been incarcerated and, therefore, because of their criminality, removed from the Australian community.
KIRBY J: They were with certain members of the Australian community, but not its generality.
MR GUNST: Not its generality, your Honour, and - - -
McHUGH J: I notice in footnote 32 Professor Lane refers to an article by Wood in the Federal Law Review where he states one of the criteria for absorption is non-criminality.
MR GUNST: Yes. I should take your Honours to Molinari which is at footnote 28, Ex parte Molinari (1961) 2 FLR at 477. It is, in fact, a judgment of Mr Justice Sholl in Supreme Court of Victoria. It was a habeus corpus application and Mr Molinari a person who had come here from Italy. He had, one might say, a number of things going for him on the absorption question. He had come here, so he said and it was accepted, with the intention of staying permanently. He had obtained remunerative employment, lawful employment that is. He lived with his sister and her husband who were both permanent settlers in the country. He invested money in land. He had learned English. He had committed some offences and his Honour Mr Justice Sholl went on to say - and this is at page 496 to 497, that:
some types of offences might perhaps tend to negative absorption -
and his Honour instanced, in particular, espionage. This addresses your Honour Justice McHugh's question.
McHUGH J: I am very familiar with Molinari. It is also in the Victorian Reports.
MR GUNST: The offences that Mr Molinari had been convicted of were far less than espionage and, overall, his Honour did not accept that they negatived absorption. The offences here, however, are one can only say grave, repeated serious criminality that remove, on any objective view we say, these applicants from being in any way considered as being part of the ordinary, one might say law-abiding, Australian community, the wider general community, not the particular prison community to which they were consigned for quite lengthy periods of time. Your Honours, those were in fact the only cases that we wish to take your Honours to. These are questions of fact.
McHUGH J: In Ex parte Black Re Morony 83 NSWWN, the Supreme Court held that Black, an Irish seaman who jumped ship in 1947 and lived in Sydney, married, had a family, was absorbed into the community by 1962 or 1963.
MR GUNST: Yes. The period of time here, for both of these applicants, is much shorter.
KIRBY J: Is it relevant to take into account the age of an applicant, in that here, at an age when they could not have had a long experience of another nationality, they came, they went to school here, they grew up here - in the case of one of them, did marry here. One could understand that because they came in their immaturity they might consider themselves as part of the Australian community. Not very good members of the Australian community, by their criminal record, but nonetheless part of our community, with its good and bad elements.
MR GUNST: As a matter of logic, one might say that, if one spent, say, five years here, from the age of 15, let us say, one would accurately say that constitutes a much greater proportion of one's life than if one spent five years here from the age of, let us say, 45. So to that extent, there is logic in what your Honour says. But we say here that the facts, such as are set out, are just far too skimpy for your Honours to form the view that either of these men was, in fact, absorbed - for all the reasons we have set out. Neither of them were able to vote; they have been separated, against their will, for significant periods of time; they have not had much in the way of gainful employment or ties with other members of the Australian community.
GLEESON CJ: Yes, thank you, Mr Gunst. Yes, Mr Maxwell.
MR MAXWELL: If your Honours please. Your Honours, if I might deal first with the last matter. It is our respectful submission that it can be said of each of these men that, at the date of the decision, he had been absorbed, that is to say, he had made his home in Australia and become part of its people; he was a member of the Australian community; and/or he was a constituent part of the community known as the Australian people, those being the tests to which we have referred. To pick up your Honour Justice Kirby's point, in the case of Dang, he arrived at the age of 13, and he had been here 19 of his 32 years, at the date of the decision.
So it is not correct to say, as I understood my learned friend to say, that the period is shorter than the New South Wales example your Honour gave; it is longer. Obviously length will only be one of the factors, but these are substantial periods and, in the case of Mr Dang, well over half his life. He came here as a 13 year old on a permanent residence visa. He came here to make his life in Australia.
GLEESON CJ: At the time of the Minister's decision, of those 19 years, how many had he spent in gaol?
MR MAXWELL: Your Honour, that is in the case stated book at the passage to which I referred. He spent two years in gaol on remand for things he was not convicted of, so we would leave those out of the count. He had spent about 1.7 years in prison serving sentences for convictions of various offences - 663 days - and another 76 days on remand where he was subsequently convicted.
HAYNE J: But at the time the Minister made his decision in Mr Dang's case, Mr Dang had been sentenced, had he not, to seven with a five for further offending, or have I confused the two cases? Nothing turns on it. The facts are - - -
MR MAXWELL: Are set out, your Honour, yes. That is Te, your Honour. So that is a very substantial period, and for him the years between 13 and 32 are very significant years for the formation, objectively as well as subjectively, of his relationship of allegiance - much more significant than the 13 years that preceded that point. In the case of Mr Te, he arrived at the age of 16 and had been here 15 years at the date of the decision in 1998, slightly less than half of his 31 years of life - a very significant period at a very significant stage in his life. In our respectful submission, the concession was rightly made that when in the person's life the period occurs is relevant and what proportion of the lifespan to that point it occupies is also relevant.
GLEESON CJ: It might be fortunate or just as well that we have Mr Dang here. It might mean that it will be necessary to face up to a case in which somebody for the purpose of the immigration power had been absorbed into the community.
MR MAXWELL: Yes, your Honour. As my learned friends have made clear, they make no concession about absorption for the purpose of the immigration power. In Patterson, as your Honours will recall, that was conceded. If I might just then move quickly through the points in reply.
KIRBY J: Patterson was 30 years. To get absorbed, according to the criterion, you have to be around for 30 years to get the concession.
MR MAXWELL: In the life of 60 or 70, as it was the time of the decision, 19 in a life of 32, in our respectful submission, is as substantial a proportion of a life and that is the question rather than the absolute number of years.
GUMMOW J: Sir Owen Dixon said somewhere it is an odd sort of constitutional fact.
MR MAXWELL: Yes. Your Honours said in the joint judgment that this question does depend on all sorts of facts but that is the law as it has developed and no one has asked this Court to depart from the absorption concept for immigration, though plainly it is a question of fact for the decision-maker, the court and the minister at the time.
GUMMOW J: No. For this Court. It is a constitutional fact. That is the problem.
MR MAXWELL: I understand that. But in a particular case, if the question was if the Minister had to satisfy himself that he had jurisdiction over the person he would then have to address the question of power. That is the only sense in which I meant it was a matter for the Minister.
KIRBY J: It was suggested in argument that if the noun is "immigration", that being a process, as distinct from the noun "alien", that being a status, that it is easier more rapidly to fix a time of absorption.
MR MAXWELL: Yes. With respect, your Honours, we submit that that is an untenable distinction and that although the solicitor asserted it, it is not correct to say that "alien" is status and "immigrant" is not status.
KIRBY J: Now, but the power is immigration.
MR MAXWELL: That is so, but as my learned friend, Mr Gunst, correctly said, these cases are about when you can say that a person is no longer an immigrant. That was his formulation. That is how I understand the case is to be couched. "Has this person been here for long enough and in the appropriate circumstances that it can no longer be said of him that he is an immigrant?" He does not have immigrant status. He is not some one who can be characterised as having that attribute at that time. That is a question of status and the fact that the power is with respect to immigration does not affect that one wit, in our respectful submission.
KIRBY J: If you go back to the actual terms, the Constitution is not expressed in terms of immigrants.
MR MAXWELL: That is so.
KIRBY J: But a process - - -
MR MAXWELL: We respectfully submit that that power enables the Parliament to deal with those who are immigrants or emigrants and to attach conditions, procedures to those who are in that condition. Walsh and Johnson and the other cases have assumed that that power extends beyond the point of entry, because if someone is here for one or two years, he continues to be an immigrant and can be dealt with as such. After 25 years and marriage, he is not. That is a status question, as precisely is the question of alienage. That is a status question, and that is a distinction, in our respectful submission, without a difference.
Both questions of status describe your relationship with the Australian community. The fact that one can say that of alien status and immigrant status does not mean that the powers do not have different work to do, but it is perfectly clear that immigrant status is connected with your relationship to the community - he has been absorbed into the community - and it is perfectly clear, in our submission, from Patterson that alienage has to do with, as her Honour Justice Gaudron said, your relationship with the community. They are concepts which overlap.
To say that the same set of facts may mean that two powers are unavailable against the same person is not to say that the powers have no separate work to do, which is our respectful answer to what Justices Hayne and Gummow have said in the judgment, and again today. It is not right to say that our argument involves doing away with the aliens power. It is not right.
There may be certain characteristics of a person which have the consequence that various heads of power in the Constitution will or will not relate to him. That does not mean the powers do not have different work to do. It just means that his status as a resident, for example, is the criterion for application of this power and that power. Here we say the criterion of absorption is the criterion for non-application of two distinct powers.
As we have said in our outline, the power with respect to immigration can deal with the immigration of a non-alien. An Australian child born abroad arrives as a non-alien but an immigrant.
So those concepts are distinct, intelligible as separate concepts and nothing in our argument, in our respectful submission, can be answered by saying, "Well you are doing away with the aliens power." We accept that the power with respect to aliens and powers of the Parliament to deal with aliens - it empowers the Parliament to determine the process by which aliens can become non-aliens - I answered her Honour's question along those lines earlier - and certainly, as Justice Gummow put to my learned friend, can deal with the disabilities which attach to alien status. If you are an alien in this realm you cannot own property, for example.
We draw your Honours' attention, without going to it, to what is said in the Salmond article about naturalisation and it being a process of agreement. We accept that. That is how it has traditionally been regarded and, as I have referred to it as naturalisation, properly so-called, it is the process of making a declaration of citizenship and acceptance by the sovereign. But the crucial distinction, in our submission, remains the one that we began with which is this: a law defining the categories of citizenship, exhaustively, is a valid law with respect to naturalisation. That is a statutory task. The definition of the categories of "alienage" is something else. That is a constitutional task which only this Court can do, definitively. The Parliament cannot exhaustively define the categories of non-alienage. It can made citizenship a sufficient condition for the achievement of non-alien status; it cannot make it a necessary condition, in our submission. There could be no doubt, in our respectful submission, that a law with respect to the loss of citizenship was a law with respect to citizenship. We see no difficulty with that as in the same way as a law with respect to the dissolution of corporations is a law with respect to corporations.
KIRBY J: There is no mention of citizenship in the powers of the Federal Parliament.
MR MAXWELL: No, but accepting that there is a power to make laws with respect to citizenship, then Parliament can do as it has done and provide the circumstances in which that particular statutory status can be lost. There are sections in the Act which so provide. So, far from having to say the Citizenship Act is wholly invalid - which is an astonishing suggested corollary of our submissions - we say nothing of the sort. Parliament can define the categories of citizenship and the circumstances in which you will lose it; it just cannot say, you have to be a citizen in order to cease to be an alien, and that is what this Court said in Patterson.
GLEESON CJ: What is the source of the Parliament's power to make laws about citizenship?
MR MAXWELL: The power with respect to naturalisation. But the critical point is the point made in Justice McHugh's judgment, to which we referred after lunch, at paragraph [132]. Alienage "is not a matter of Australian citizenship". If we are wrong in saying that is the majority view of this Court, then we misread the judgments, but if it is, then the answer is not to be found in the Citizenship Act, but in the constitutional concept of "alien", founded on allegiance. My learned friend did not deign to deal with any of the passages to which I referred after lunch, in which six members of this Court founded the concept of alienage on allegiance.
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
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